As daily fines against Arizona hit $1 million today, there is no apparent end to a political stalemate over how to improve instruction for Arizona's more than 154,000 non-English speaking children.

More than four weeks have passed since the state was slapped with daily fines by a federal judge, but Arizona lawmakers are no closer to a solution. In fact, the Republican-led Legislature and Democratic Gov. Janet Napolitano appear to be headed in opposite directions.

Take Thursday, for example: Legislators appeared ready to pass a compromise measure when they began to worry that Napolitano might change the plan and add more money for English-learners. So they delayed action until Monday, hoping to find ways to protect their plan against a Napolitano line-item veto.
Meanwhile, the fines continue to accumulate: $15 million now, up to $45 million if no agreement is reached within the next month, a minimum of $99 million if the problem remains unresolved by May 1. That's more than Napolitano had hoped to budget for English-learning programs for next year, and far more than legislators want to spend.

"This is a disaster," said Tim Hogan of the Arizona Center for Law in the Public Interest, who is pursuing the court case against the state. He particularly objected to a portion of the latest legislative plan that would put a two-year limit on funding for children struggling to learn English.

"They say, 'We're not going to fund kids for more than two years,' and that's just plain illegal," he said. "The schools will keep the children in the program because they don't want to violate federal law, they'll just lose their funding."

Some Republicans, however, said they believe they are on the right track. They hope that Napolitano will see things their way. Legislation put together by lawmakers Thursday would have removed corporate tuition-tax credits, a key stumbling block in efforts to help break the stalemate that spilled over from last year's session. The plan still would have involved substantially less money than Napolitano has proposed.

"This is an efficient solution to a complex problem," said Sen. John Huppenthal, R-Chandler. "But it's truly unfortunate the governor abused her power and succeeded from getting us to remove (school) choice from this bill."

Money from the fines is supposed to go to English-learners, but a judge has not yet ruled on exactly when or how. In the meantime, the struggle over funding for the programs has become a political fight with both sides complaining about the other's approach. The controversy has overshadowed most other business at the Capitol.

"This has more moving components than any issue I've been involved in down here," said House Speaker Jim Weiers, a Capitol veteran. "This is a very complicated issue."

 

Missing the deadline

 

The court-mandated fines began accruing in late January after Napolitano and the Legislature missed a judge's deadline to come up with a plan to pay for English-learner instruction. In December, U.S. District Judge Raner Collins gave Arizona an ultimatum to spend more money for non-English-speaking schoolchildren. Collins ordered lawmakers and Napolitano to come up with a financial plan by Jan. 24 to help educate English-learners. That hasn't happened.

More than 154,000 students in Arizona speak foreign languages, mostly Spanish, and are struggling to learn English. 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. Administrators in school districts with large immigrant populations have said they would use the extra money to shrink the size of classes, update materials and equipment, provide more individual instruction, and better train teachers.

This year Napolitano rejected two previous GOP-backed plans because they contained corporate tuition-tax credits for private-school scholarships, which could divert millions of dollars from public schools into private schools.

Hogan said the latest Republican plan is "in a number of ways worse than the previous bills" that Napolitano vetoed. If a student has not sufficiently learned English in two years under the plan, the funding for that child's instruction would be rescinded.

Hogan said it often takes students more than three years to become proficient in English, and the federal government doesn't allow schools to cut off federal funding for children who qualify.

Thursday's proposal appeared to be designed to put pressure on Collins to accept it. The increased funding would only occur if the judge signed off on the plan. However, all the policy changes and reforms would go into effect as long as Napolitano allows the bill to go into law. Those changes include repealing the current funding structure for English-learners to make way for the new system. So, if Collins rejects the plan, schools would lose not just their increase in funding for English-learners next year, but all such funding they are getting now.

Sen. Bill Brotherton, a Phoenix Democrat and an attorney, predicted the plan would only serve to annoy Collins.

"Playing with a federal judge is not a bright idea," Brotherton said. "The judge is just going to see this as sticking a sharp stick in his eye."

 

No easy fix

 

One thing is clear: There is no easy fix to the problem. Lawmakers will get back to work on Monday. Their latest plan, House Bill 2064, increases per-student funding from $355 to $432 per year, a concession by Republicans who had wanted to move to a grant type of program.

The Republican plan would require school districts to devote existing federal funds designated for low-income students and tax dollars used to comply with federal desegregation orders to their English-learner programs before they could ask for additional state help. The amount of federal dollars a school must spend would be based on the percentage of English-learners enrolled.

Forcing schools to use federal dollars that they may now be using for other programs could be a costly legal gamble. The U.S. Court of Appeals forced the state of New York to return $20 million in education funds in 1990 for supplanting. The funds were sent to the state in 1981 to pay for remedial instruction for educationally deprived students. New York lawmakers instead used the money to avoid budget cuts in other areas.

The 1992 case Flores vs. Arizona found that current funding wasn't enough to ensure that students overcame language barriers.

The case is an extension of the Equal Education Opportunity Act of 1974, a federal law that prohibits states from denying education opportunities based on race, color, sex or national origin.



Reach the reporters at chip.scutari@arizonarepublic.com or robbie.sherwood@arizonarepublic.com.