Appeals Court hears English-learner fight
The Arizona Republic
Jul. 26, 2006

Chip Scutari

Attorneys for the state implored a federal Appeals Court in San Francisco on Tuesday to resolve the debate over funding for children struggling to learn English, saying the Legislature has done plenty already to help those students.

The lawyers, representing lawmakers and the state schools chief, urged the panel to uphold a law passed this year but rejected by a federal judge in Tucson. It would increase funding for thousands of English-learners from
$358 per pupil to $432 per pupil.

They also asked the court to overturn the judge's order fining Arizona $21 million for missing a deadline to come up with a plan to help the English-learner students. Federal Judge Raner Collins of Tucson had determined that the Legislature's plan did not do enough to help the children. The 9th U.S. Circuit Court of Appeals panel is expected to rule on Tuesday's arguments within a few months, potentially deciding the fate of about 160,000 students in Arizona. Meanwhile, school districts will start the year with uncertainty.

Administrators have said they could use the extra money to shrink classes, update materials and equipment, and better train teachers.

The court will examine three key questions:
Does the English-learner legislation passed by the Republican-controlled Legislature meet the requirements of a 2000 federal court order?

Should Collins have imposed the fines?

If so, how should the fines be distributed?

The representatives of the Legislature and schools superintendent argued that Arizona has helped the English-learner students by pumping millions of dollars into classrooms, building and teachers.

But Tim Hogan, who represents the parents who filed a lawsuit against the state 14 years ago, said students who struggle to learn English are still woefully underfunded.

"All along, this has always been about inadequate funding, and they still have not figured out how much it costs to educate these kids," Hogan said. "Resources bring opportunities. It's about kids having opportunities. Some will take advantage, and some will not."

Tuesday's legal clash inside a San Francisco courtroom is the latest twist
in a dispute that involves students in Arizona who speak foreign languages,
mostly Spanish, and are struggling to keep pace with English-speaking
students. The situation is believed to be a main reason for Arizona's high
dropout rate as well as the inability of many of the children to adjust to
life in Arizona.

Arizona Schools Superintendent Tom Horne, who sat next to his legal counsel,
said the state has undergone a significant "change in circumstances" since a
federal judge in 2000 ruled Arizona funded English-learners in an "arbitrary
and capricious way."

"I think the key fact is that the chief presiding judge was keenly aware of
the changes in circumstances," Horne said after the one-hour hearing.

Horne not only wants the judges to quash the $21 million in fines, but he
also wants them to overturn Collins' ban on the state requiring
English-learners to pass the AIMS test to graduate.

Hogan, who has been a thorn in the Legislature's side for many years, said
the new money Horne talked about isn't earmarked to help out English-learner

Tim Nelson, Gov. Janet Napolitano's legal counsel who was at the hearing,
said he hopes a decision comes soon. "We hope they decide quickly because
these children need a resolution to this," Nelson said.

Others in the courtroom think the case is headed to the U.S. Supreme Court.

"The Supreme Court is going to have the last word on this," said Barrett
Marson, a top aide to House Speaker Jim Weiers, R-Phoenix. "This is an issue
of nationwide importance."

The state Attorney General's Office played only a minor rule in Tuesday's
hearing, saying the $21 million in fines should be distributed to schools in
Arizona. Legislative leaders this spring hired their own counsel because
they thought the office was not fighting hard enough for their legal rights.

Pursuing an appeal

So how did the Nogales case make it to California?

In late April, Collins rejected the Legislature's plan to improve
instruction for students struggling to learn English, saying it did not
include enough new money and would have violated federal law. Collins'
ruling drew a defiant response from Republican legislative leaders, who
decided to head to the federal appeals court.

The gist of their argument is two-fold: First, they point out that Arizona
spends significantly more on English-learner students now compared with
2000, going from $150 per student to a proposed $432 this year. They also
say that the deficiencies in Nogales "have been cured."

Hogan doesn't buy that. He wants the federal appellate judges to leave
Collins' ruling intact. Specifically, he wants the appellate court to let
Collins once again give state lawmakers a deadline to come up with a plan.
Hogan also wants the state, which already is facing about $21 million in
fines, to face additional penalties if legislators once again procrastinate
and stall.

Collins said the Legislature's plan, House Bill 2064, was "arbitrary and
capricious" because it was not based on research and was $18-per-pupil less
than what a study suggested for English-learner programs in 1988.

Under the Legislature's plan, if the costs for teaching English turned out
to be higher than $432 per child, schools would have to divert federal funds
already in their budget to pay for needed tutoring, smaller classrooms and
other programs. Collins said it was illegal to use federal funds, which go
to a variety of poverty-related programs, to supplant money for a state's
responsibility to educate English-learners.

The issue of illegal immigration is also couched in this controversy, though
it did not come up in Tuesday's hearing.

The Pew Hispanic Center suggest that many are children of undocumented
immigrants, which means they would not have been born here except for the
fact that their parents crossed the border illegally. Hogan said an
overwhelming majority of these students are U.S. citizens by virtue of
having been born in this country. It's significant in Arizona where illegal
immigration is the No. 1 political topic in an election year.

Hogan said the bottom line is that Arizona is still violating federal law.

"Congress has a law in place that every student should be treated equally,"
he said. "And our state still isn't doing that."