English learner plan rejected
The Arizona Republic
Apr. 27, 2006

Judge: Legislature allocating too little

Robbie Sherwood and Chip Scutari

A judge on Wednesday 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 in several ways.

The ruling by U.S. District Judge Raner Collins drew a defiant response from Republican legislative leaders that signaled more protracted political standoffs and courtroom battles before schools receive anything.

"I don't believe this judge is an activist; I just think he's wrong," said Senate President Ken Bennett, R-Prescott. "He has misconstrued the actual facts of the bill."

Collins' ruling was intended to send state lawmakers immediately back to the drawing board to satisfy a 6-year-old court order to help 154,000 mostly Latino schoolchildren who are falling behind and in danger of dropping out.

In December, Collins ordered Gov. Janet Napolitano and lawmakers to come up with a strategy to adequately fund English-learner plans by late January. He assessed fines totaling $21 million to prod state officials along after they missed their deadline.

Despite Wednesday's ruling, Bennett and House Speaker Jim Weiers said they will not change their plan. They noted that Superintendent of Public Instruction Tom Horne is appealing the December ruling that forced lawmakers into action. When the 9th U.S. Circuit Court of Appeals hears arguments in July, Horne hopes to overturn the fines and strip Collins of any further say over Arizona school spending. Horne said he doesn't think Collins has the authority to fine the state or to send money from the fines directly to Arizona schools without the Legislature's approval.

The judge's reasoning
Weiers and Bennett had pushed their $32 million spending plan into law last month over the objections of Democratic Gov. Napolitano, who let the bill go into law without her signature after vetoing three nearly identical bills over the past year.

Collins gave a harsh assessment of the Legislature's plan in his eight-page ruling.

"On its face, the (Legislature's plan) does not appropriately fund the ELL program," Collins wrote. "It also does not comply with federal law."

The Legislature's plan would have increased the extra per-pupil funding for English-learners to $432 from $358 next year. Collins said the increase 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.

Collins also said the plan would illegally divert into English-learner programs local tax dollars used to comply with federal desegregation orders.

School districts in Tempe and Tucson that are under federal desegregation orders argued to Collins that they would lose money under the state's plan.

Finally, Collins said it was illegal under federal law for Arizona lawmakers to limit English-learners to only two years of special instruction because it often takes longer than that for students to master the language.

Napolitano's proposals
Napolitano favors a plan that would triple current spending on English-learners based on cost estimates that Weiers and Bennett have rejected as "flawed."

While Napolitano and other Democrats on Wednesday were saying "I told you so" about the legality of the Legislature's plan, they were also trying to coax Republicans to the negotiating table to craft a more workable bill before the current session ends.

Napolitano urged lawmakers to include a new plan for English-learners in ongoing state budget negotiations.

"Let's see if we can get this out of the courts and into the classroom and get things fixed once and for all," Napolitano said. "It's not about winning and losing. It's about finally coming to grips with the fact that we have non-English-speaking children in our classrooms, the overwhelming majority of whom are here legally, and they've got to learn how to speak English."

What about the fines?
Officials from Attorney General Terry Goddard's office said they don't believe the daily $1 million fines imposed by Collins can start up again because of the stay granted by the 9th Circuit. Over the next few days, legislative leaders will huddle with their lawyers and decide whether they want to update their appeal or file a new one with the federal appeals court.

Attorney Tim Hogan of the Center for Law in the Public Interest, whose class-action lawsuit is driving the legislative action, disagrees with the assumption that fines are no longer stacking up. He warned that the lawmakers "better do something pronto" and that they risk additional sanctions if they continue to ignore a federal judge.

"My view is that the fines are being reimposed by this order," Hogan said.
"There is a dispute about the fines, but I guess they are willing to gamble with public money here. I don't know how you can get a federal court order and ignore it. If their position is that nothing happens to them for ignoring this, I'll have to think about doing something."

The original court order to help English-learners came down six years ago.
The class-action lawsuit, Flores vs. Arizona, was filed in 1992 on behalf of a Nogales family.

Horne, the state's schools chief, said he will advise Republican legislative leaders "to take a wait-and-see approach" until the federal appeals court takes up the English-learner case in late July.

He criticized Judge Collins for ignoring federal educational requirements brought on by the federal No Child Left Behind program that force schools to get students learning English within two school years.

"The judge expects the Arizona taxpayer to bear the whole burden for the costs all by themselves," said Horne, a Republican.

Schools' reaction
School officials such as Mark Joraanstad, who are coping with large numbers
of English-learners, said the political stalemate "leaves us hanging."

Joraanstad, an assistant superintendent in the Glendale Elementary School
District, oversees a district of about 14,000 students.

Although recently advancing about 1,200 students out of English-learner
programs, his district still has 3,742 students who haven't gained English

"We're planning for next year right now," Joraanstad said. "We can't count
on much of anything."

Republic reporter Carrie Watters contributed to this article.