English learner fines are dropped
The Arizona Republic
Aug. 25, 2006

U.S. court erases judge's penalty against Arizona

Chip Scutari
A federal appeals court gave legislative leaders and the state schools chief a major victory Thursday by wiping out $21 million in fines the state faced in a case involving the fate of 160,000 students who struggle to learn English.

The 9th U.S. Circuit Court of Appeals also ruled that English-learner students must pass the AIMS test to graduate from high school.

Raner Collins, a U.S. District Court judge in Tucson, had ordered Arizona to pay $21 million in fines because the Legislature and Gov. Janet Napolitano missed a deadline for a plan to help students who need assistance to learn English. Collins also ruled that the fines should be set aside for programs to help the children. Now that the fines have been erased, the money will be returned to state coffers. The ruling leaves the future of Arizona's English-learner programs in a sea of uncertainty as the school year is beginning. Unfortunately for both sides, it doesn't resolve the case but adds another delay to a 14-year saga. It keeps most of a Republican-backed law intact but keeps the funding level for English-learners at about $358 per student, so schools won't be getting extra money anytime soon.

The case bounces back to Collins' courtroom in Tucson for a new hearing.
Republican lawmakers will try to show that they have improved the educational landscape this decade by building schools, passing a sales tax to hike teacher salaries and tripling English-learner funding since 2000.

Changes since 2000

In a San Francisco courtroom in late July, lawyers for the Republican-controlled Legislature and Superintendent of Public Instruction Tom Horne argued that Arizona has helped English-learners by directing millions of dollars at classrooms, buildings and teachers over the past few years. They pointed out that Arizona spends significantly more on English-learners now compared with 2000, when a former federal judge said the state was violating federal law. Arizona went from spending $150 per English-learner to a proposed $432 this year under a Republican-backed bill.
They also said the deficiencies in Nogales, where the parents of a student launched the lawsuit 14 years ago, "have been cured."

Horne was ecstatic Thursday when he heard about the ruling, which sends the case back to Collins' courtroom for a new evidentiary hearing.

"This was exactly what I asked for," said Horne, a Republican. "The circumstances have changed, and we should have a chance to show that they've changed. This is a great victory for us."

The three-judge panel of the federal appeals court seemed to agree with most of Horne's arguments. In part, the ruling said: "In the interim, the landscape of educational funding has changed significantly. In light of the changes in education programs and funding since a 2000 court order, the District Court should have held an evidentiary hearing."

'Temporary setback'

Tim Hogan, who represents the Nogales parents who filed the lawsuit against the state, said the latest ruling is a "temporary setback." He said the education of Arizona students who struggle to learn English is still woefully underfunded.

"This is a setback for us in terms of time," said Hogan, of the Arizona Center for Law in the Public Interest. "I don't think it will be a setback in terms of the ultimate result that we are going to get here. I think Judge Collins will want to deal with this pretty quickly because the case has been around a long time."

The crux of the dispute 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 dropout rate as well as the inability of many of the children to adjust to life in Arizona.

Hogan will ask Collins to force legislators to scrap their English-learner plan and start again. Administrators thought the fine money could be used to help shrink classes, update materials and equipment, and better train teachers. But education officials are still confident they will eventually win the case and get more funding for teachers and students.

"We look forward to the opportunity to demonstrate that the 2000 court ruling, which the state agreed to, is still good law and that our students are still not funded at a legally adequate level," said Janice Palmer, lobbyist for the Arizona School Boards Association.

For now, the state will continue to spend an additional $358 on English-learners.

Back to Tucson

The case now shifts to a Tucson courtroom where Horne and lawmakers will try
to prove their English-learner legislation meets the requirements of the
2000 federal court order. Collins' ruling in late April rejected the
Legislature's plan to improve instruction for English-learners, saying it
did not include enough new money and would have violated federal law. The
decision drew a defiant response from Republican legislative leaders, who
then headed to the federal appeals court.

Leaders such as House Speaker Jim Weiers hope Collins will change his mind
after a new trial.

"This is a major victory for the state and common sense," said Weiers,

"We have spent millions of dollars to help non-English-speaking students in
Arizona. The federal court can no longer ignore all our efforts. The other
side has been trying to do the same old same old for years."

Tools for teaching

Sen. Linda Aguirre, a former English-learner teacher, called the ruling "an
atrocity for Arizona's education system."

"The fact remains that the kids who need to learn English don't have the
proper funding," said Aguirre, D-Phoenix.

House Bill 2064 would increase funding for thousands of English-learners
from $358 per pupil to $432 per pupil.

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 budgets 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.

Tim Nelson, Napolitano's legal counsel who attended the appeals court's
hearing in San Francisco, said he wants the case resolved soon so students
aren't facing an uncertain fate.

"For the sake of the ELL students, we have to make sure that the evidentiary
hearing happens as quickly as possible," Nelson said.

Question: What happened to the $21 million in fines?

Answer: The state was facing $21 million in fines for failing to meet a
deadline to come up with an English-language learner funding plan. Those
fines, imposed by federal Judge Raner Collins, are now wiped out because of
Thursday's ruling by the 9th U.S. Circuit Court of Appeals. They go back
into the state's General Fund.

Q: What is the status of House Bill 2064, the Republican-backed legislation
that was passed earlier this year but rejected by Collins?

A: Collins will probably schedule a new hearing in the next few months.
Lawyers for schools chief Tom Horne and the Legislature will try to prove
that HB 2064 helps English-learners because of the additional money that has
been pumped into programs over the past few years. Tim Hogan, plaintiffs
attorney, will ask Collins to scrap that law and force the legislators back
to the drawing board.

Q: What happens to HB 2064 in the meantime?

A: The law, except for the additional funding from $358 to $432 per
English-learner, is scheduled to go into effect in late September. That
could change depending on how soon a hearing happens in Collins' courtroom.

Q: What happens to Arizona's 160,000 English-learners?

A: For now, the state will continue to give an additional $358 per learner.
After the arguments about the legislation, Collins may either approve the
law, scrap it or ask lawmakers to revise it. If he approves the legislation,
the funding will go up to $432 per English-learner.

Q: How soon can the case be resolved?

A: That's unknown. It depends when Collins schedules the evidentiary hearing
and then when and how he rules in the case.

Q: What is the status of the requirement that English-learners take the AIMS
test to graduate from high school?

A: Because the federal Court of Appeals vacated Collins' order,
English-learners must pass the AIMS test to get a diploma.