Arizona highway funds imperiled
The Arizona Republic
Oct. 30, 2005

Activist to ask judge to punish state in English-learner suit

Robbie Sherwood and Chip Scutari

On Monday, a federal judge will consider halting Arizona's freeway construction to force the state to do more to help educate immigrant children.

The state's most powerful public-interest attorney will ask that up to $500 million in federal highway funds be withheld until Democratic Gov. Janet Napolitano and the Republican-controlled Legislature agree on a spending plan to improve children's English skills.

The English-learner program could cost the state an extra $200 million a year and boost the skills of as many as 160,000 Arizona children, most of whom are U.S. citizens but whose parents generally are immigrants.

Tim Hogan of the Arizona Center for Law in the Public Interest is targeting highway funds because he believes the sanctions would get lawmakers'
attention without penalizing needy children. Opposing attorneys say withholding up to $500 million in federal money would have an "immediate and devastating" effect on Arizona's economy.

The funds, which account for at least half of the Arizona Department of Transportation's budget, flow into the state as needed to pay for ongoing construction projects. If the money were stopped, it could have an immediate effect on freeway projects that include the widening of Interstate 17 from Loop 101 to the Carefree Highway; the construction of carpool lanes on the Pima freeway; and, in the East Valley, the widening of U.S. 60 from Val Vista Drive to Power Road.

Attorneys for the construction industry said that shutting off federal funds would not only stop or delay freeway projects, but also make traffic congestion and air quality worse, and force "significant layoffs" among construction workers. Contractors, who front money for building and wait for the federal government to reimburse, would immediately face massive debts.

An order to withhold the highway money would be unprecedented. The request will be heard by U.S. District Court Judge Raner Collins, who already has found Arizona's spending on students learning English to be "woefully inadequate." Because of their lack of English skills, such children are considered high risks to drop out of school. Their numbers are growing rapidly as Arizona's Latino population continues to swell.

Hogan will also ask the court to exempt English learners from having to pass the high-stakes AIMS test to graduate from high school next year because of the state government's failure to comply with the court's order.

Hogan said the request to deny federal highway money is "the cleanest and most efficient way to do this."

"If the court is reluctant, we've alternatively asked the court to impose fines of $1 million a day. You want to give the court flexibility and helpful here, but by the same token, I'm convinced the threat of federal highway funding is substantial and will result in compliance," he said.

Collins is not expected to deliver his decision Monday. The outcome ultimately could compel Napolitano and Republican legislative leaders to end their stalemate by crafting a bipartisan plan to spend millions more on teacher training, individualized instruction and smaller classrooms.

Collins had given Arizona's leaders until the end of last spring's legislative session to comply with his order in the Flores vs. Arizona lawsuit, which was first filed in 1992 on behalf of a family in Nogales. But that deadline blew up in May in a hail of partisan name-calling and finger-pointing. Napolitano vetoed a Republican legislative plan that she said did not meet the court's demand for adequate funding for English instruction.

Cartwright Elementary School District Superintendent Mike Martinez, who worked with Hogan on Arizona's landmark case about school construction financing, said going after highway funds could persuade lawmakers to act.
"With the climate at the Legislature so hostile and skeptical, Tim recognized he had to go to an extreme level," Martinez said. "The history in Arizona has been that sometimes you need to do that to get things done."

The state's attorneys will argue that Napolitano and lawmakers have made a "good faith" effort to pass a spending plan and, despite Napolitano's veto, should be given more time to work out their differences.

"The (vetoed) bill was a good-faith effort to meet the requirements of the court and that, in fact, did meet the requirements of the court," said state Superintendent of Public Instruction Tom Horne, a defendant in the case.
"(Hogan) urged the governor to veto it and then he turns around and asks for sanctions because it never became law."

Horne plans to argue that, without Hogan's meddling, Napolitano would not have vetoed the Republican plan.

That plan would have spent about $42 million next year for English-language-learner programs and teacher training, although only $13.5 million would be new funding. Future spending increases would be uncertain because the approach would become a grant program subject to approval by the Department of Education and the Legislature. After Napolitano's veto, she unveiled her own plan that would increase spending for English learners by $185 million a year, but legislators have refused to discuss it.

Lawyers for the state will also argue that overall spending for English learners has increased from $150 per student to more than $350 a year, so there is no evidence of ignoring the court's order. Part of the delay will be pinned on a court-ordered cost study finished in February that said lawmakers should spend more than $1,000 per pupil, or $200 million a year, to help students overcome language barriers. Legislative leaders dismissed that study as flawed.

Hogan believes that, without sanctions, lawmakers will choose to dismiss any cost study that shows a need for substantial new spending.

The AIMS test
Horne also hopes the judge will dismiss Hogan's request to exempt English learners from passing the AIMS test to graduate from high school

"The worst thing that you could possibly do for Latino kids is take away their motivation to study," Horne said.

Parent activist Norma Alvarez of Glendale thinks Hogan is mistaken to try and exempt immigrant children from passing AIMS. Alvarez, a daughter of immigrants who spoke no English when she entered school over 50 years ago, is active with Hispanics for Better Education, an advocacy group pushing to consolidate school districts to improve funding for instruction.

"I didn't know a word of English when I entered school and I did fine," Alvarez said. "Our brain works the same as a White brain. To say, OK, you don't have to pass the AIMS test is like telling us we're dumb. (Hogan) is maybe trying to do us some good, but he's hurting us even more."

As for increased funding, 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. For example, instructors say Spanish-speaking children tend to speak in longer, run-on sentences and must be taught to streamline their writing. Those skills aren't addressed by normal textbooks.

In the Isaac School District, more than 60 percent of the students grow up in homes where English isn't spoken and Telemundo is favored over news in English. About 5,000 of the 9,000 students are classified as English-language learners. Isaac Superintendent Kent Parades Scribner said the task is more challenging today because America has evolved from a service-based economy to a technology-driven economy.

"My grandfather from Mexico City came to this country and did very well without an education because he could get into the economy by doing construction," Scribner said. "The tool of the day is the brain. We need to invest in that so Arizona can have a productive, taxpaying citizens."

Erminda Garcia, a first-grade teacher at Morris K. Udall Elementary, has been teaching children who struggle to learn English for nearly 30 years. Garcia, an upbeat, energetic teacher, sums up the challenges like this:

"They are learning language and content. Can you imagine trying to learn German and biology at the same time?" Garcia asked. "They are busy trying to make sense of a new language and doing math problems at the same time."