The state Board of Education voted Tuesday against fighting a federal judge's order that requires Arizona to improve programs for students learning the English language and exempt English-learning students from taking the AIMs test.

However, state Superintendent of Public Instruction Tom Horne, a board member but also a separate defendant in the court case, said he still plans to ask federal courts to block implementation of the ruling and then asking a federal appeals court to overturn it.

The Board of Education, a panel which sets policy for the state's K-12 public school system, voted unanimously against filing motions to have U.S. District Judge Raner Collins reconsider his Dec. 15 order and to stay it.

Collins ordered the state to pay daily fines starting at $500,000 and gradually rising to $2 million if lawmakers fail to approve additional funding for ELL programs during their 2006 regular session.

Citing inadequacies of current ELL programs, the judge also ordered ELL students exempted from the soon-to-be-implemented requirement that high school students pass the AIMS test to get a diploma.

After meeting behind closed doors to hear legal advice on Collins' order, the Board of Education voted unanimously for the motion to refrain from challenging Collins' order, Executive Director Vince Yanez said.

In a statement issued after the meeting, the board said it decided "its energies should not be directed toward fighting future legal battles but rather on policy matters that improve instruction for all of Arizona's children - including those learning English."

The board's statement also said it was reaffirming a commitment "to take a proactive approach to education policymaking and to make its decisions based upon the best available research."

Horne, reached later, said he would "fight vigorously" against Collins' order but that he recommended that the board take the action that he did because it would simplify things legally.

"You've got a board consisting of people with different views and you'd have to go back (for consultation and direction) at every tactical step," he said. "It's a lot simpler for me to appeal and fight on all issues."

Horne contends that Collins had no factual basis for the AIMS potion of his ruling, that he failed to hold a requested hearing on that issue. He also said it's bad public policy because it weakens the test as an education accountability tool and robs ELL students of motivation to learn important skills.

The AIMs test measures students' knowledge of math, reading and writing. The graduation requirement begins with current seniors, the graduating class of 2006.

He said the part of the order deal with ELL programs and their funding should be overturned because the judge refused to consider the availability of federal funds, especially when considering that law federal border enforcement contributes to ELL costs through illegal immigration.

The state is also a defendant in the ELL case. A spokeswoman for Gov. Janet Napolitano said she had no immediate information on what position the governor would direct the state to take in court.