AABE--AZ told: Up English funds or else

A federal judge on Friday gave the state 15 days after the legislative session begins next month to finally comply with his order to properly fund English-language programs or face fines of $500,000 per day.

U.S. District Judge Raner Collins of Tucson also ruled that the state cannot require students officially classified as "English language learners" to pass the AIMS tests to graduate from high school.

Those are students who came to school speaking a different language and aren't proficient in English.

Collins said it has been nearly six years since another judge concluded Arizona is not complying with federal laws to ensure all students learn English. And he noted his own order last January setting a deadline for compliance by the end of the last legislative session, which came and went without resolution.

Collins' new order makes it clear he is running out of patience. The $500,000 daily penalty starts if there is no resolution by Jan. 24. Failure to act by Feb. 23 boosts the penalty to $1 million a day, going to $1.5 million 30 days after that.

And if legislators adjourn without an acceptable plan in law, then the state will have to pay $2 million a day.

But Collins opted not to put anyone behind bars, saying that is "not an appropriate remedy at this time."

As for the AIMS test, the judge was told that more than 80 percent of students designated as English-language learners have failed to pass all three sections of the test required to get a diploma, compared with about 26 percent statewide.

Attorney Tim Hogan, who represents parents of English learners who sued over the issue, said it's not fair to penalize these students, because the state has never properly funded English-language programs.

Statewide there are about 1,400 English-language-learner students in the current senior class, according to the Arizona Department of Education.

Friday's ruling is a defeat for Republican legislative leaders who argued that lawmakers had complied with the court order.

The Legislature did approve boosting the funding formula for the current school year by about $75 per student, to $435 for each of the approximately 160,000 English-language learners in Arizona public schools.

But that plan made appropriation of future dollars dependent on each school district's drafting a teaching plan, identifying dollars it had from other sources, and then asking the state for cash if it needed more.

Democratic Gov. Janet Napolitano vetoed that as inadequate and not complying with the court mandate.

She responded with her own plan to boost state aid for English language learners to $1,299, which legislative leaders refused to accept before the session ended.

On Friday, Napolitano invited them to renew negotiations. But that could prove fruitless.

House Speaker Jim Weiers and Senate President Ken Bennett said they plan to send basically the same bill back to Napolitano.

Bennett said there may be minor alterations. But he said the Republican-controlled Legislature will not approve Napolitano's approach of simply boosting state aid per student, calling that "replacing one arbitrary number with other arbitrary numbers."

Gubernatorial press aide Jeanine L'Ecuyer said Napolitano is willing to compromise as long as the final plan provides money both to adequately teach English and to comply with the court order.

Weiers questioned the right of the judge to impose such a penalty. But he said if Napolitano vetoes the bill it will be her fault if the state is fined.

State schools Superintendent Tom Horne, a Republican who helped write that legislative proposal, said he intends to appeal the ruling.

Horne is particularly miffed that the judge said it is up to state taxpayers to come up with more money. He said many school districts already get extra federal dollars based on the number of students in poverty, many of whom are English-language learners.

The superintendent said Collins' ruling is a double insult because much of the problem is caused by the failure of the U.S. government to control the border, resulting in a large number of illegal entrants and their children in Arizona schools.

Horne also decried the decision to let the English learners get diplomas without passing the AIMS tests.

"It gives them a meaningless diploma that is a product of seat time rather than academic achievement," he said. "To tell these students that they're going to get a diploma even though they can't speak English and then have them compete in the economy is a terrible way to mislead the students themselves."

But Steve Holmes, director of language acquisition for Tucson Unified School District, called Friday's ruling "a good first step to providing a high-quality education."

He said TUSD is doing what it can with both the state and federal dollars it has. Holmes said additional cash is necessary to provide smaller classes, which he called critical to teaching English to students as quickly as possible.

Holmes declined to say how much TUSD believes is necessary to properly teach English but said $1,200 per student probably comes close. That figure came out of a study Republican lawmakers sought but then disavowed.

In opting for daily fines, the judge rejected Hogan's original request to withhold from Arizona federal highway aid totaling about $650 million a year. Collins said that would hurt contractors and engineers — not parties to the lawsuit — whose businesses depend on road construction contracts.

The original lawsuit was filed in 1992 by parents of students in Nogales Unified School District who contended that the state was not properly funding programs to aid students who came to school speaking a language other than English.

In 2000, U.S. District Judge Alfredo Marquez ruled that the $150 per pupil in additional state aid provided for students with limited English skills was "arbitrary and capricious," with no bearing on actual cost.