English-learner fines begin
The Arizona Republic
Jan. 26, 2006

Napolitano rejects 2nd Republican plan

Chip Scutari and Robbie Sherwood

Arizona became liable Wednesday for fines of $500,000 a day after Gov. Janet Napolitano rejected the latest Republican plan to pay for improved instruction for thousands of Arizona schoolchildren struggling to learn English.

It was the second day in a row that the Democratic governor vetoed a Republican-backed plan to help English-learners in public schools. This time, the court-ordered deadline passed without another legislative attempt to revise the proposal.

Napolitano said she rejected the plan because it contained corporate tuition-tax credits for private-school scholarships, which could divert millions of dollars from public schools into private schools.

"I regret that the Legislature is not focused on children and classrooms that are the subject of our federal court requirements," Napolitano said.

The governor and legislators also remained far apart on how much Arizona should spend on instruction for the more than 150,000 children in Arizona whose English skills are deficient.

Napolitano favors a plan that would more than triple the $360 extra now spent on each English-language learner. It would eventually cost $180 million a year. The vetoed Republican plan would increase spending by $31 million for one year but would then become a grant program with no known price tag because schools would first have to devote existing federal funds to the programs before they could ask for state help.

U.S. District Judge Raner Collins ordered fines of $500,000 a day in December if lawmakers failed to act by Wednesday. Those fines could grow to
$2 million a day if this year's legislative session ends with no further progress.

Just how the fines would be collected and where the money would go remained uncertain.

Arizona Attorney General Terry Goddard filed a court brief Wednesday asking Collins to direct the fines to the state Department of Education so the money could eventually be used to help English-learners. Tim Hogan of the Center for Law in the Public Interest, whose suit brought the sanctions, echoed Goddard's request. They cited decisions in other federal court cases where fines were used to help "the aggrieved parties."

Officials in the judge's office said they were prohibited from commenting on a pending case.

Meanwhile, state Treasurer David Petersen said he doesn't believe he has the authority to pay the fines. He said it takes a majority vote of the Legislature, signed by the governor, for him to spend state money. The state has enough money to pay the fines, but lawmakers would have to pass a bill to do it, he said.

Hogan called Petersen's position a "silly" and "circular" argument. Hogan said that the fines are self-executing and that federal judges have broad authority to enforce their orders.

"Did the treasurer consult with his attorneys before deciding not to comply with a court order?" Hogan said. "Nobody is going to agree to fine themselves. That's the nature of fines. I'm sure the judge is going to do whatever he needs to do."

With the $500,000 daily fines believed to be accruing, state officials were scrambling to research how the sanctions would be enforced. Judge Collins provided no clues in his court order. Officials in Goddard's office said they could not comment on legal advice because of attorney-client privilege.

Goddard believes the fines won't be collected daily but would rather accumulate like fines on "an overdue library book," spokeswoman Andrea Esquer said.

"You don't come down and pay 25 cents a day," Esquer said. "When you return the book, then you pay the bill."

After Napolitano's first veto on Tuesday, lawmakers worked into the night to respond. Republicans capped the unlimited tuition-tax credit plan at $50 million, but Napolitano has made it clear that she does not want tax credits in any English-learner bill. After the veto, Napolitano and Republican legislative leaders each pointed fingers at the other for the fines.

House Speaker Jim Weiers and Senate President Ken Bennett accused Napolitano of refusing to let the court review their proposed grant plan.

"This is because of her doing, not because of ours," Weiers, R-Phoenix, said of the fines. "She was elected governor, she wasn't elected dictator."

Of the "dictator" comment, Napolitano said, "that kind of language is inappropriate and not accurate."

'Flores vs. Arizona'
The 1992 case Flores vs. Arizona has prompted the legislative drama. It 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.

In a 2000 ruling, a federal judge wrote that there were too many students in a classroom, not enough qualified teachers and teacher aides, and insufficient teaching materials to help students learn English.

About 154,000 students in Arizona speak foreign languages, mostly Spanish, and are struggling to learn English. That has contributed to Arizona's high dropout rate and sparked a class-action lawsuit 14 years ago. Administrators in school districts with large immigrant populations have said they need extra money to shrink the size of classes, update materials and equipment, provide individual instruction and better train teachers.

No easy answers
Lawmakers are finding that there aren't any easy answers to solve this issue. Unlike allocating money for breakfast programs or algebra textbooks, teaching language skills varies from city to city.

The Republican plan would spend an additional $31 million next year on English-learner programs, though more than $7 million of that is for administrative expenses, testing and auditing. Arizona already spends about $55 million, or about $360 per English-learner.

But after one year, schools would have to apply for state grants for English-language programs and only after they had applied any federal education funding they were receiving to address the problem. The grant requests could be rejected by Superintendent of Public Instruction Tom Horne and lawmakers if the schools are judged to be not spending enough of their federal education and desegregation dollars on English-language programs.

Republican leaders, so far, have refused to consider Napolitano's plan because they believe it spends too much and is not based on a credible cost study.

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