IN (FAIRLY) PLAIN ENGLISH
Arizona Republic
August 30, 2006
Author: Robert Robb, (Phoenix, AZ) : 49TH CIRCUIT OFFERS A MULLIGAN IN LANGUAGE-LEARNER SUIT

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 relevant again.

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 sense.

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 educating English-learners.

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 Napolitano.

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 representative government.



Reach Robb at robert.robb@arizonarepublic.com or (602) 444-8472. His column
appears Sundays, Wednesdays and Fridays. Read his blog at
robbblog.azcentral.com.