Judge gives Napolitano victory with ruling on English-learners
The Arizona Republic
Jan. 27, 2006

Chip Scutari
In a victory for Gov. Janet Napolitano, a federal judge ruled Thursday that the state must deposit $500,000-a-day fines for missing an English-learners deadline into a special fund to help those children master English-language skills.

The decision by U.S. District Judge Raner Collins could translate into millions of dollars more for students.

It also gives Napolitano the upper hand in further negotiations over how best to meet the needs of about 154,000 children with English deficiencies.

Republican lawmakers criticized the judge's decision, saying it "tied their hands in negotiations" with Napolitano. She had vetoed two Republican proposals earlier in the week, both of which would have set aside substantially less money for English-learners than Napolitano wanted.

"He took our ability to negotiate away," said Rep. Bill Konopnicki, a Safford Republican. "Now, the governor can wait until she gets enough money in the fund until she agrees to any bill we send to her. The judge has really changed the dynamics of the negotiations."

Sen. Thayer Verschoor, a Gilbert conservative, was even more critical.

"I guess he just decided who the winner was," said Verschoor, R-Gilbert. "She gets all the money she wants and more. The judge is appropriating funds that he has no right to appropriate."

Collins' order essentially agreed with what Napolitano had proposed earlier this week: Put the fines into a special fund so the students who are directly affected reap the rewards of a political stalemate. Collins gave authorities until Tuesday to come up with a plan to distribute the money, which would come from the state's General Fund. Napolitano praised the ruling.

"I am pleased with the judge's decision to allow the fines to be used solely for the education of ELL (English-language learner) students," Napolitano said in a written statement. "Our children need to be highly educated and able to read, write and speak in English, so they can become a strong and viable workforce for the future."

Spending inadequate
Lawmakers said they will return Monday to resume their effort to fulfill the court's mandate. The fines began to accrue Wednesday after Napolitano and the Legislature missed Collins' deadline to come up with a plan to pay for English-learner instruction. Ruling in a case originally filed 14 years ago, the judge had called the state's spending on the children inadequate.

Attorneys representing the state and Arizona School Superintendent Tom Horne will submit proposals by Tuesday night to Collins, suggesting how the fines should be distributed across the state.

The judge's ruling ended a dizzying week of back-and-forth battles between Napolitano and legislative leaders on an emotional issue involving students who speak foreign languages, mostly Spanish, and are struggling to learn English. Arizona has been under a federal court order for six years in the English-learner controversy.

After rejecting the Republicans' first bill this week, Napolitano had Arizona Attorney General Terry Goddard file a court brief asking Collins to direct the fines to the state Department of Education so the money could eventually be used to help English-learners.

Fines to mount
As lawmakers and Napolitano try to reach a compromise, the fines will continue to grow. The $500,000-a-day fines will continue for about another 30 days. If there's still no progress, the fine grows to $1.5 million through the end of the session, totaling $77.5 million. If lawmakers adjourn with no plan, the fine rises to $2 million a day and continues indefinitely.

The political and legal wrangling stems from the 1992 case Flores vs. Arizona, which found that existing 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.

GOP leaders on Thursday said they will hire a separate legal counsel to defend them in the Flores case. House Speaker Jim Weiers wrote to Collins to blame Napolitano's vetoes for the state missing the deadline set by Collins.

Governor blamed
"The Legislature has passed two bills in the first 15 days of the legislative session designed to comply with the orders in this case," Weiers wrote. "The governor's vetoes are the cause of the state's failure to comply with our deadline."

The governor and legislators remain 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-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. Arizona currently spends about $55 million on English-learner students.

Democratic Rep. Phil Lopes said he was not optimistic the two sides would soon reach agreement.

"On a scale from 1 to 10, 10 being highly optimistic: 3," the Tucson lawmaker said.

Reach the reporter at (602) 444-8069.