Politicians locked up? English case vexes judge
Capitol Media Services
Nov. 1, 2005

 By Howard Fischer

Frustrated by the lack of resolution, a federal judge on Monday openly suggested he might have to jail the governor and legislative leaders to secure proper funding for English-language learners.

 District Judge Raner Collins noted it has been more than five years since a now-retired predecessor found the state was not complying with federal laws to ensure that all students learn English. And the state never followed his own January order to have a plan in place by now to help the 185,000 Arizona schoolchildren who lack English skills.  

"So who would you jail?" the judge asked attorneys for both sides at a hearing here.  

Jose Cárdenas, who represents the state, and Tim Nelson, counsel to Gov. Janet Napolitano, both said the judge can't incarcerate their clients.

 Even Tim Hogan, who represents the parents who filed the successful lawsuit more than a decade ago, said the only way that might work would be to "put them all in the same jail cell . . . and they couldn't come out until they solved this."  

Instead, Hogan wants Collins to withhold $650 million a year in federal highway aid.  

But Cárdenas and Nelson argued that the only way to break the impasse between the Republican legislative leadership and the Democratic governor would be for Collins to tell both sides what he wants.  

Hogan argued that withholding money to build freeways and repair roads is the only way to get state officials to comply with the 2000 court order.

 He also wants Collins to exempt about 10,000 seniors classified as "English-language learners" from having to pass Arizona's Instrument to Measure Standards, the test required to graduate this spring. He said more than 80 percent of those students have failed to pass all three sections of the test required to get a diploma, compared with about 26 percent of students statewide.  

It's not fair to penalize these students because the state has never properly funded English-language programs, he said.  

Collins made no decision and gave no indication of what he would do.  

The 2000 ruling held that the $150 per pupil in additional state aid provided for students with limited English skills was "arbitrary and capricious," with no bearing on the actual cost. Lawmakers later increased that to the current figure of about $360, an amount also rejected by the court because it was not based on any data of the real cost.  

When a deadline for a new study came and went last year, Collins, who has since taken over the case, said he wanted funding in place by the end of this year's legislative session.  

The Republican-controlled Legislature did approve some additional funds for this year, but with future money dependent on each school district drafting its own plan and asking the state for cash if more is needed. Napolitano vetoed that as inadequate and responded with her own more costly proposal, which was never accepted by legislative leaders.  

Cárdenas said both the legislative majority and the governor believe their plans comply with the court order - and neither will budge. While he and Nelson invited Collins to review both plans and decide which, if either, would put the state into compliance, Hogan said that's just more delay.  

"That's exactly why we need meaningful, powerful sanctions to break that impasse," he told the judge. He said neither side will move until the threat of financial harm is serious.  

Attorney Eric Bistrow, who represents state School Superintendent Tom Horne, separately urged Collins to ignore Hogan's request for sanctions. He said it was improper for Hogan to urge Napolitano to veto the legislative plan, leaving the state with nothing to present to the judge.  

But Nelson said Hogan's letter only confirmed the governor's own belief that the legislative plan was insufficient.