State at end of the line in English-learner case
Arizona Republic
March 5, 2008


 (Phoenix, AZ)

Author: Robert Robb, The Arizona Republic

The Arizona Legislature has probably run out of legal room to continue temporizing on English-language-learning funding.

The 9th U.S. Circuit Court of Appeals has upheld the district court finding that the state remains in violation of federal law.

Ordinarily, there would be grounds for hope that the U.S. Supreme Court would reverse the decision. That court has shown an interest in trimming the proclivity of federal judges to manage the affairs of state and local governments.

However, the posture of this particular challenge to overreaching judicial interference is seriously impaired, as the 9th Circuit decision makes clear.

The state was first found to be in violation of the federal Equal Education Opportunity Act in 2000. The relevant state leaders at the time -- Gov. Jane Hull, Superintendent of Public Instruction Lisa Keegan and Attorney General Janet Napolitano -- decided not to defend representative government by appealing.

So, the district judge entered an order as to how the state was to come into compliance. The state has not done the things in the order.

Now, the Legislature and current Superintendent Tom Horne are trying to argue that changed circumstances have brought the state into compliance with the federal law, even though the state has not done the things it was ordered to do.

The 9th Circuit Court, however, clearly saw the issue primarily as protecting the ability of the judiciary to make its orders stick. The state didn't appeal when it was timely, so it doesn't have the option of effectively relitigating the case now, was the heart of the decision.

Legislative leaders say they want to appeal. However, given that the case is as much about following judicial orders as about English learner instruction, their odds are quite long.

That's too bad, because the 9th Circuit decision also illustrates, once again, how ridiculous judges look when they try to settle social-science disputes.

While the decision rested primarily on protecting the integrity of judicial orders, it did consider, and dismiss, the merit of the changed-circumstances claim.

Basically, the Legislature and Horne were arguing that English learners in Nogales, which is where the litigation began, are now doing pretty well.

Not so, said the 9th Circuit panel, citing the fact that English language learners in Nogales do worse than native speakers on the state's AIMS test.

This is remarkably obtuse. There is no program the state can adopt that will enable those still learning English to do as well as those who already know English on tests administered in English.

The question is how quickly are English learners becoming proficient and how do they do on such tests after they become proficient.

And there the record in Nogales is quite strong. The proficiency-conversion rate has improved markedly, and students who become proficient score as well as or better than native speakers on state tests.

This, the only truly relevant information, was airily dismissed by the court in light of how poorly those still learning English were doing.

The approach the judiciary has imposed on the state is a social-science fantasy. It assumes that there is a certain amount of money spent in a certain way that will cause the achievement differences between English learners and native speakers to disappear.

Moreover, the state cannot use any of its basic-education or federal funds to comply with this supposed federal mandate. Instead, it can only use additional incremental funds to bring English learners up to speed.

That led the 9th Circuit into the following absurdity. Basic state aid, it opined, has to be used on core subjects as "math, reading, writing, and other basic subjects." That money cannot be used to achieve English proficiency. Only extra, incremental funds can be used to do that.

I would love to hear their honors expound on how, precisely, you teach an English learner to read and write in English without teaching him English.

In the real world, money is fungible, and for English learners (indeed all students), funds from whatever sources should be used to address their particular educational needs.

In all the legal machinations, however, the Legislature does appear to have wiggled out of the find-the-magical-number requirement. It adopted a grant program based upon implementing a state-developed English language instruction approach. The district judge said that might be OK, so long as it wasn't limited to two years of supplemental funding per English learner and federal funds weren't treated as an offset to state funds.

The districts made $273 million in requests for funding under the program. Horne trimmed that to $40 million. There will undoubtedly be more litigation about that.

So, the state will continue to be haunted by the failure of Hull, Keegan and Napolitano to defend representative government when the time was ripe.

Reach Robb at or 602-444-8472. His column appears Sundays, Wednesdays and Fridays.

Edition: Final Chaser
Section: Opinions
Page: B7
Dateline: AZ
Record Number: pho96900569