English-learner case strains Arizona's coffers
Arizona Republic
Feb. 26, 2008

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Deadline creates dilemma for cash-strapped state

Mary Jo Pitzl

State government, already strapped for money, could be staring down a bill for millions of dollars for failing to fund a program to teach English to students struggling to learn the language.

And the financial cost to the state will grow even more, as legislative leaders and the state schools chief indicated Monday that they will appeal the English-language issue all the way to the U.S. Supreme Court, if necessary.

The latest developments in the case of Flores vs. Arizona underscore the financial and philosophical issues at stake.
On the one hand, lawmakers face a March 4 deadline to fund English-language programs adequately. That's a deadline they said Monday that they can't meet.

That will send attorney Tim Hogan of the Arizona Center for Law in the Public Interest back to a federal judge in Tucson to seek sanctions. Those penalties could be similar, if not identical, to fines that were imposed on the state two years ago for dragging its feet on the English-language issue: $500,000 a day, climbing over time.

On another front, state officials will appeal Friday's ruling from a three-member panel of the 9th U.S. Circuit Court of Appeals. The court rejected their arguments that they have resolved the dilemma about English-language instruction and thus should be removed from the requirements imposed by Judge Raner Collins of U.S. District Court.

Tom Horne, state superintendent of public instruction, said he and legislative leaders still are deciding whether to go directly to the U.S. Supreme Court or seek a review from the full 9th Circuit.

The ruling was hailed by Hogan, as well as Gov. Janet Napolitano's office.

"This was a complete victory for Flores," said Hogan, who represents the English learners in the class-action suit.

The original lawsuit was filed 15 1/2 years ago.

Napolitano, who has urged lawmakers to end the legal wrangling, said through an aide that the court ruling has provided a way to do that.

"The court this time basically set up a road map," said Jeanine L'Ecuyer, spokeswoman for the governor.

That's because the 9th Circuit noted that if two areas of the state law are changed, it should satisfy equal-opportunity laws.

'Principle involved'

Horne said the fight about unfavorable court rulings will continue because of the issue at stake.

"To me, there's a very important principle involved," Horne said. "Do we live in a representative republic, or are we being dictated to by a lifetime judiciary?"

Lawmakers long have complained that it is unjust for a federal judge to tell Arizona how to structure its English-language programs.

Hogan has argued, though, that federal law requires equal opportunity for all students in public school and that the state does not meet that standard when it comes to students struggling to learn English.

Currently, those students number about 134,000.

Hogan said Monday that if lawmakers don't meet next Tuesday's funding deadline, which they've known about since October, he'll go back to Judge Collins to seek sanctions.

"I'm having trouble understanding why they can't meet the March 4 deadline," he said.

House Majority Leader Tom Boone said lawmakers can't make a proposal until they receive a budget request from the state Department of Education. Without a cost estimate based on a rational process, the Legislature would be guilty of an arbitrary funding plan, something that Collins has rejected in the past.

That budget request should be ready by the end of the week or early next week, Horne said. The much-anticipated budget figure will be based on forms filed by school districts, Horne said, and it should total $30 million to $50 million.

Hogan is unmoved. If Horne can float an estimate, the Legislature can appropriate at least the minimal amount, he said."I'm not averse to a very short extension if they say they're going to fund the program," Hogan said of lawmakers.

Still, there is little indication that lawmakers are ready to carve out extra money in the state budget for English-language instruction.

Big budget gap

Legislative leaders have been working to close an estimated $1.2 billion hole in the current year's state budget and funding for English-language instruction has not emerged as a priority.

"It doesn't seem it's on anyone's radar screen around here," said Rep. David Lujan, D-Phoenix, who also is president of the Phoenix Union High School District board.

"I think it's going to be up to Tim Hogan to go back to court."

Boone, however, said the Legislature is on track to deal properly with English-language instruction: A study has been done of the costs, a task force studied various instructional models, and now, the Department of Education is compiling budget requests from the school districts.

"It's just that every little piece seems to be taking longer than people thought," the Peoria Republican said.

In its ruling, the 9th Circuit lamented the time that the Flores case has consumed, without a resolution, but the three-judge panel suggested that if lawmakers addressed two issues, the state law could be read as complying with the court's order.

Those issues include removing the two-year time limit that current state law imposes on how long a student can stay in an English-learner program and not counting federal dollars toward the state's cost of educating those students.

Senate Majority Leader Thayer Verschoor, R-Gilbert, said that if the Legislature followed those recommendations, the law would be gutted because lawmakers don't believe a federal judge should dictate education policy.

Besides, the court's guidance could be pricey.

"It would cost us an extreme amount of money," he said, estimating the tab at "hundreds of millions of dollars."