IN (FAIRLY) PLAIN ENGLISH
August 30, 2006
Author: Robert Robb, (Phoenix, AZ) : 49TH CIRCUIT OFFERS A MULLIGAN IN
Attorney General Terry Goddard's office issued a surprisingly dismissive press
release about the 9th Circuit Court of Appeals ordering an evidentiary hearing
in the state's English-learner lawsuit.
The release quoted Goddard's special counsel in the case, Jose Cardenas, as
saying that it was a "very narrow procedural ruling."
It was a procedural ruling, but it was far from narrow, much less very narrow.
In fact, it appears that the 9th Circuit wants the case to be largely
re-litigated. If true, that would be very good news for representative
government in Arizona.
That more expansive interpretation is based, in part, on what the ruling
actually said. The trial court judge, Raner Collins, was ordered to hold a
hearing and decide "whether changed circumstances required modification of the
original court order or otherwise had a bearing on the appropriate remedy." That
pretty much opens the door for everything.
It is also based, in part, on the comments of the three-judge appeals panel
during oral argument. It's always dangerous to read too much into the comments
of judges during oral arguments, but the panel did seem very skeptical about the
current legal posture of the case.
And for good reason. Evidence of deficiencies in Arizona's English-learner
program was considered for only one school district, Nogales. Yet a statewide
remedy has been ordered.
Moreover, Superintendent of Public Instruction Tom Horne, who asked for the
evidentiary hearing, says that, 14 years after the case was originally brought,
the Nogales school system is now doing a good job of educating English-learners.
A large majority of English-learners in several Nogales schools are passing
state achievement tests, and some Nogales schools, although with a sizable
majority of English-learner students, have above-average overall test scores.
According to the lawyer who brought the case, Tim Hogan of the Arizona Center
for Law in the Public Interest, the current results in Nogales don't matter
legally. Once a finding has been made that the state violates a federal law
requiring it to take "appropriate action to overcome language barriers that
impede equal participation by its students in its instructional programs," a
certain process has to be followed.
According to Hogan, the state has to define an acceptable education approach,
determine what it costs, and then provide the funding to implement the approach.
Only after the additional funding is provided do outcomes become legally
In oral argument before the 9th Circuit, Judge Andrew Kleinfeld seemed openly
skeptical, if not downright dismissive, of the claim that the state was in some
sort of procedural straitjacket -- that outcomes can be used to demonstrate that
the state is in violation of federal law but cannot be used to demonstrate that
the state is no longer in violation.
The question now is how broad an evidentiary hearing Collins will hold, and how
open-minded he will be about the evidence.
This entire case amounts to an assault on representative government and common
By failing to enforce immigration laws, the federal government has created a
significant burden on Arizona for the education of non-English speaking
students. A vague federal law has been interpreted as requiring Arizona to spend
more on the task. Yet, according to the trial court decision, federal funds
cannot be used to satisfy the supposed federal requirement for the educational
burden the failure of federal immigration law has created.
To comply, the state is supposed to come up with a magical figure that, if spent
in a particularly magical way, will make differences in achievement between
native speakers and non-native speakers go away. There is no such magical
figure, and social scientists hotly dispute what works and what doesn't in
And, in the current legal straitjacket, what state taxpayers spend on education
is to be decided not by their elected representatives, but by a federal judge in
a court of law.
A grievous error was made when this case was not appealed after it was first
decided in 2000. That blame rests with the decision-makers at the time: Gov.
Jane Hull, Superintendent Lisa Keegan and then-Attorney General Janet
However, it appears that the state has been given, in essence, a legal mulligan
by the 9th Circuit.
Collins inherited this case. He would do the court and the people of Arizona a
great service if he looked beyond the procedural straitjacket of the decision he
inherited and fairly consider Horne's argument that, if Nogales is the question,
then Arizona is not in violation of the federal law requiring "appropriate
action," not necessarily a particular level of funding, to facilitate "equal
participation," not equal outcomes, by English-learners.
That would return the question of educating English-learners in Arizona to the
Legislature, where it belongs, not in the courts.
If Collins won't fully consider that argument, or rejects it, the 9th Circuit
nonetheless appears very open to it.
And in Horne, Arizona has a public official willing to appeal and fight for
Reach Robb at firstname.lastname@example.org or (602) 444-8472. His column
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