Aug. 3, 2005
The unprecedented legal maneuver could cost the state more than $500 million, marking the most dramatic chapter in a case affecting more than 160,000 students in Arizona who speak foreign languages, mostly Spanish. They are called English-language learners and they are expected to grow in number as Arizona's Latino population increases.
Tim Hogan, executive director of the Arizona Center for Law in the Public Interest, said the reason for going after highway funds is pragmatic: Lawmakers, especially Republican legislative leaders, consider the money essential.
"The federal highway funding is a pretty clean way to get at this
problem," said Hogan, who has forced the state to change key policies
ranging from school-construction financing to environmental cleanups.
"The point here is to get the Legislature to do something. We're not
interested in stopping education funds, which would hurt kids even
Hogan's motion mentions an Arizona Department of Transportation report that said the state received $535.9 million in federal transportation funding in 2004. The motion, though, doesn't recommend a specific dollar figure that should be withheld.
My way or the highwayHogan said his tactic is designed to force the Legislature's hand. An olive branch would give lawmakers an additional 30 days to pass legislation if a judge were to impose such a sanction.
The case comes down to children who have trouble speaking English and how much taxpayers should be expected to pay for that. Administrators in school districts with large immigrant populations have said they need the extra money to shrink the size of classes, update materials and equipment, provide more individual instruction, and better train teachers.
The situation is believed to be a key reason for Arizona's high dropout rate, as well as the inability of many of the children to adjust to life in Arizona. In his 12-page motion, Hogan writes:
"The state's unlawful disregard for these students has resulted in more than 80 percent of (these students) in high school failing the AIMS graduation test. The system that's been in place during that period of time is one of state-sanctioned failure and must end now before any more students are lost to the state's indifference."
It's too early to know if federal highway funds will be withheld, but transportation officials have cited projects that could be affected. They include the widening of Interstate 17 from Loop 101 to Carefree Highway; the construction of carpool lanes on the Pima Freeway stretch of Loop 101, in the East Valley; and the widening of U.S. 60 from Val Vista Drive to Power Road.
Republicans are skeptical that a judge would actually withhold federal highway dollars from the state.
"I would think it would be counterproductive for the courts to proceed in this fashion," said House Majority Leader Steve Tully, R-Phoenix, an attorney. "We all want children who do not speak English to learn English. This debate (about education) has been going on for 100 years."
A worthy adversary
Legislative leaders concede, however, that Hogan is a worthy
adversary. In 1998, he successfully argued that the method of paying for
school construction in Arizona was unfair. Hogan sued the state four
times. The Arizona Supreme Court ordered the state to shut down its
school finance system if the Legislature didn't come up with a
constitutional fix within 60 days of its ruling. Lawmakers ended up
passing Students First, putting the state into the school construction
The issue of English-language learners grew out of a lawsuit, Flores vs. Arizona, filed by a Nogales family in 1992. Since 2000, legislators have been under the gun from a federal court order to spend more money on English-language learners in Arizona.
Kent P. Scribner, superintendent of Isaac School District No. 5, said this is an "education issue, not a political issue."
"The Legislature has already shortchanged an entire generation of students in Arizona," said Scribner, whose district has 62 percent of students where English isn't the dominant language at home. "It's unfortunate that it takes this kind of action to force the Legislature to follow the law."
Scribner said most of his classes have about 27 students and he'd like to bring the number down to 20.
Currently, Arizona spends about $355 per year per English-language learner. In all, Arizona spends nearly $80 million a year on English-learner education programs. That total includes additional money for tutoring, classroom supplies and teacher salaries.
Back to drawing board
The Flores case continues to haunt the Legislature.
Republican House and Senate leaders plan to meet with Democratic Gov. Janet Napolitano on Aug. 10 to talk about English-learner funding, the first meeting of the leaders since Napolitano vetoed a GOP-crafted bill in late May. Napolitano and Hogan thought that plan, which required school districts to apply for grants, was inadequate.
Napolitano has since developed a funding plan of her own that would increase spending for English learners by $185 million a year, but legislators have refused to discuss it until Napolitano pledges to reverse a veto of an unrelated measure to create a corporate tuition tax credit for private schools. Republicans point out that lawmakers have increased per-student spending for English learners to more than $350 a year from $150, so there's no evidence of ignoring the court order.
A court-ordered cost study in February said Arizona would need to spend an additional $210 million a year to help students overcome language barriers and get a decent education, or more than $1,000 more per child. Lawmakers have called that study flawed.
Hogan said he wants the Legislature to act sooner rather than later.
"We're a long ways out from when these kids should have gotten help," Hogan said. "We still don't have any legislation in place to address their needs. I have never dictated what they have to do. But they have to do something."