Judge asked to force state action on ELL programs
Associated Press
May. 2, 2006

A federal judge should prod the Legislature into revisiting the adequacy of programs for students learning the English language now that the judge has ruled that a new state law doesn't comply with previous court orders, attorneys for lawsuit plaintiffs said Tuesday.

"Based on the public statements of the defendants, it is clear that they have no intention of complying with the court's judgment and orders pending the outcome of their appeals," the plaintiffs' attorneys said in a filing with U.S. District Judge Raner C. Collins.

The attorneys asked Collins to either hold a hearing to discuss the effect of Collins's April 25 order or "clarify that the order is effective and requires compliance with the judgment entered in this case." Republican legislative leaders and state Superintendent of Public Instruction Tom Horne, also a Republican, reacted to the April 25 ruling by saying no action was needed because the 9th U.S. Circuit Court of Appeals had issued a stay while it considers an appeal filed by Horne of two previous orders by Collins.

However, the lawsuit plaintiffs' attorneys said in their filing Tuesday that the stay didn't stay the lower court's judgment "and the need for the defendants to comply with it."

The 14-year-old case has resulted in the state accruing $21 million in daily fines ordered by Collins for failing to meet a deadline. The fines stopped when the Republican-led Legislature passed the new law March 2, and parties in the case disagree on what impact, if any, the latest ruling would have on the fines.

Democratic Gov. Janet Napolitano opposed the Republican-drafted measure as inadequate and vetoed three previous versions. However, she let the latest version become law without her signature in hopes that Collins would reject it and compel lawmakers to do more.

Collins ruled April 25 that the new law doesn't adequately fund ELL programs, fails to spell out the costs of providing those programs and doesn't explain the basis for the funding that it does provide.

His ruling also said the state law violates federal law by requiring subtractions for federal 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 and would also require school districts and charter schools to use new instructional models to be approved by the state.

Districts and charter schools also would be eligible for additional funding based on the costs of the models but would have to subtract some federal dollars they already receive.

The law's supporters said it would fund ELL programs while ensuring that they use effective methods of instruction. Napolitano and other opponents contend the extra funding was inadequate and that the subtraction of federal dollars was illegal.

The stay issued April 6 by the 9th Circuit blocked orders issued by Collins in December and March. Those orders set fines for the state for missing a January deadline and distributed the money to public schools for ELL programs.