A language barrier
Mar. 8, 2006
The English-learner saga is worthy of the Twilight Zone
The political and legal battle over the state's English-learner program has just
gone from awkward and curious to truly bizarre.
This saga begins with a federal law that is Congress at its worst. The Equal
Educational Opportunities Act provides, in relevant part, that educational
agencies take "appropriate action to overcome language barriers that impede
equal participation by its students in its instructional program." No guidance
as to what constitutes appropriate action, no funding and no penalties specified
for not complying.
In 2000, a federal judge looking at only one school district in the state,
Nogales, determined that the state wasn't spending enough on English-learner
programs to comply with the federal law. The state, in a serious strategic
mistake, did not appeal this finding.
More recently, a different federal judge, Raner Collins, started fining the
state for not remedying the alleged inadequacy.
Last week, the Legislature finally enacted something that can, in good faith, be
argued to satisfy what the federal court has found in misapplying a federal
statute that is more sentiment than prescriptive law.
In 2000, the state allocated an extra $150 per pupil to fund English-acquisition
programs. The Legislature has almost tripled that, to $432. In addition, school
districts could apply to a new grant program that would be established to cover
any shortfalls schools may encounter in implementing the English-immersion
approach voters dictated, also in 2000.
Gov. Janet Napolitano has allowed this program to become law without her
signature, but trashed it in a letter to legislative leaders.
Now, it is one thing for Napolitano to say that the state should guarantee more
than the Legislature provides in per-pupil funding or that the Legislature
should demonstrate its commitment to the supplemental grant program by
appropriating money for it. That's the sort of thing that budget fights are all
Napolitano, however, goes further and contends that the legislative program
doesn't meet the requirements of the federal court order. The logical corollary
of that is that the judge should start reimposing the fines, which is a curious
position for the governor of a state to take.
One of Napolitano's legal contentions, that the funding provided in the
legislative program is arbitrary and capricious, is frivolous. The funding in
the legislative program is based upon demonstrated need to implement specific
state models of English immersion. It's the opposite of arbitrary and
The more serious contention is that the program violates the anti-supplanting
provisions of various federal funding laws.
The legislative program does use certain federal funds to offset the additional
state grants but only those that can be used for English-language acquisition
and the English-learners' pro rata share of other federal funds.
Properly considered, the supplanting argument actually cuts in the opposite
direction. If the state picks up all the cost of educating English-learners,
then their pro rata share of federal funds will be used for other students and
Moreover, this is supposedly a federal requirement. It seems a bit odd to argue
that federal funds cannot be used to partially satisfy it. And it's certainly
odd for a governor to argue that a federal judge should force state taxpayers to
pay more to meet a federal requirement.
Napolitano's position has put Attorney General Terry Goddard in a real pickle.
Thus far in this litigation, he has taken the position that the governor speaks
for the state and he is her lawyer.
But Goddard, as attorney general, has a general obligation to defend the
constitutionality and legality of state laws. The judge in this case has kept
open the issue of whether federal funds can be used. Given that the judge
considers this an open question, it would be strange if Goddard decided not to
at least make the case on behalf of the law.
If Goddard defends the statute, however, that puts him at odds with Napolitano.
That's uncomfortable both legally and politically. Goddard, in essence, would
then become his own client, probably angering Napolitano, who's indisputably the
Queen Bee in the Democratic political world they co-inhabit.
Goddard did comply with Napolitano's wish to ask the judge to immediately
disperse the fine money that has accumulated to English-learners. That, however,
would seem to be an attempt to pre-empt Superintendent of Public Instruction Tom
Horne, who is appealing the imposition of the fines in the first place. Hard to
get the money back if it has been dispersed.
The fines are now suspended. Horne is appealing their imposition. Whatever
Collins decides about whether this legislation meets the federal requirement
undoubtedly will also be appealed.
The sensible thing would be for Collins to let the legislative program become
law and see how it works. But, of course, the sensible thing would have been for
the federal court not to get into the business of micromanaging English-learner
acquisition programs in Arizona in the first place.