In plain English
Arizona Republic
Jan. 29, 2006

Robert Robb

Nobody wins in this fight if representative government is trumped by the courts

Leftover notes from the English-learner debate:

 Opponents of the Republican English-learner proposal have tried to seize the political high ground by claiming that they care about the children, implying or flatly saying that Republican lawmakers do not.

That's not even remotely justified by the specifics of the legislation. Instead, the legislation is best seen as an effort to meet the needs of non-native-speaking children in a way that is responsible to taxpayers. Hence, the legislation calls for educational costs to be priced out, existing resources that can be applied to those costs identified, with additional state funds being used to make up the difference.

Nevertheless, even the posture of opponents breaks down when the issue is private-school scholarships for English-learners.

Based upon experience in other states, if a private-school voucher was established for English-learners, two outcomes are pretty much guaranteed: There would be more parents and students wanting vouchers than there would be vouchers available; and voucher students and their parents would be more satisfied with their educational experience than those remaining in public schools.

It's virtually impossible to claim in good faith that the life trajectory of many English-learners wouldn't be improved by the opportunity to attend private schools.

And, indeed, the opponents of this element of the Republican plan rarely try to explain why the students most in need should be denied access to the educational setting they and their parents think would most benefit them. Instead, they sputter that private-school vouchers either aren't what the English-learner lawsuit was about or aren't necessary to comply with the judge's order.

So, when it comes to private-school scholarships, apparently it's not all about the children.

 There's another aspect of the opposition to the Republican English-learner legislation that makes no sense: all the hullabaloo about the requirement that federal funds that can be used for English-learner instruction be so used.

Supposedly all this derives from a mandate of federal law, even though the underlying court decision so finding was quite a stretch of both the law and the evidence. The law merely requires "appropriate action" to provide "equal participation" for non-native speakers, without an attempt to provide prescriptive meaning to either term. The judge used these vague notions to find Arizona's efforts deficient based upon the situation in just one school district in Nogales.

Nevertheless, assume that it is a federal mandate. If it is a federal mandate, what's wrong with first seeing whether there are any federal funds available to satisfy it?

Importantly, Judge Raner Collins, who inherited the case, did not rule on the question of whether federal funds could count to satisfy the state's obligation, even though asked to do so. Perhaps even he - who has been remarkably nonchalant about issues of federalism, separation of powers and representative government - recognized the absurdity of finding that federal funds couldn't be used to satisfy a federal mandate.

 The headline read: "Judge gives Napolitano victory with ruling on English-learners." Well, not quite.

The judge did agree to put fines that he has assessed in an account to be used for English-learner instruction, as Napolitano had requested. But Napolitano had also asked that the money be distributed to schools as a per-pupil grant based on their number of English learners.

That's the essence of her proposed plan. So, Napolitano was asking the judge, in effect, to implement her plan without it being approved by the Legislature. The judge has not agreed to do that, yet.

Superintendent of Public Instruction Tom Horne also asked the judge to put aside the fine money for use in English-learner instruction. But he has asked that the judge put the money basically in escrow, to be used for whatever program ultimately gets adopted. That wouldn't prejudge the policy questions in such hot dispute.

Moreover, it wouldn't spend the money before Horne's appeal of the fines themselves was adjudicated.

The judge has said that he will consider proposals on the use of the fine money and make a decision this week.

The initial decision to set aside the money for English-learners was a victory of sorts for Napolitano because the account will relatively quickly accumulate more than the Republicans proposed to spend on English-learner instruction in the first year. Then again, it could also end up exceeding what even Napolitano has proposed to spend in the first year.

That pretty well illustrates the fatuity of legislating through litigation.

It also illustrates why the only real hope for sound public policymaking on this topic lies with the success of Horne's appeal, which could clear the field for representative government to work without excessive intervention from a federal judge manipulating state educational and spending policies.

Reach Robb at or (602) 444-8472. His column appears Sundays, Wednesdays and Fridays.