English learners ruling, fines tossed by appeals court
Associated Press
Aug. 24, 2006

Paul Davenport

A federal appeals court on Thursday erased a trial judge's orders holding the state in contempt and fining it for missing a deadline to revamp the state's programs for more than 150,000 public school students learning the English language.

The orders vacated by a three-judge panel of the 9th U.S. Circuit Court of Appeals also rejected a new state law on English Language Learning programs and prohibited the state from requiring English-learning students to pass the state-mandated AIMS test to graduate from high school.

Agreeing with Republican legislative leaders and state Superintendent of Public Instruction Tom Horne, the appellate court said U.S. District Judge Raner C. Collins should have held a hearing to consider changed circumstances in education programs and funding since 2000. That was when a since-retired judge ruled that Arizona's ELL programs were inadequate under federal laws requiring equal opportunities in education.

"In the interim, the landscape of educational funding has changed significantly," the appellate court's order stated.

The order did not rule on the new state law increasing funding for the programs but sent the entire case back to District Court. Tim Hogan, an attorney for the class-action plaintiffs in the case, said that means Collins must hold an evidentiary hearing on the various issues.

Horne, informed of the ruling by a reporter, hailed it - "that was exactly the position that I took" - and said he was confident that the state would be able to prevail in an evidentiary hearing.

Hogan said the burden would be on the law's defenders to prove that circumstances had changed enough for the judge to reach new conclusions.
While some federal and state programs for education in general have changed, "it hasn't changed for ELL," he said.

Jose Cardenas, a lawyer who represents the state in the case, called the order "a very narrow procedural ruling."

The 9th Circuit panel heard arguments in the case in San Francisco on July 25.

The Republican-drafted law, the state's latest response to a 14-year-old court case, was passed in March but rejected by Collins in April.

The fines imposed by Collins for the state's failure to meet a January deadline had reached $21 million before they stopped upon the March 2 passage of the law.

The law's supporters said it would fund ELL programs while ensuring that they use effective methods of instruction, but Collins said the law did not provide adequate funding for ELL programs, failed to spell out the costs of providing those programs and didn't explain the basis for the funding it would provide.

He also ruled that the state law violates federal law by requiring districts to make certain subtractions from their state ELL funding and by imposing a two-year limit on funding for individual children.

The law would increase the state's supplemental funding for each ELL student to $432 from the current $358. Districts and charter schools would be eligible for additional money above the $432 based on the costs of using new instructional models subject to state approval.

Democratic Gov. Janet Napolitano called the new law inadequate but let it become law without her signature. She said she hoped Collins would reject it and require lawmakers to do more.

Though Collins ordered the fines and distribution of the money to public schools for use in ELL programs, an April 6 stay issued by the appellate court meant the money stayed in the state treasury.