Put in plain English . . .
The Arizona Republic
Apr. 30, 2006
Ah, heck, there's nothing plain about the time warp that is skewing language
litigation for our schools
In Judge Raner Collins' decision invalidating Arizona's English-learner law, the
year is still 2000.
That was the year a previous federal judge, Alfredo Marquez, initially found
that Arizona's funding for English-learner instruction violated a federal law
requiring the state to take "appropriate action to overcome language barriers
that impede equal participation by its students in its instructional program."
The federal law in question does not provide any guidance about what
"appropriate action" or "equal participation" mean. Nor does it provide any
federal funding to help meet the vague mandate. Nevertheless, Marquez determined
that, to comply with the law, Arizona had to conduct a study to determine how
best to teach English-language learners, how much it would cost and then fund
A lot has happened since 2000.
The lead plaintiff in the case, whose education was supposedly getting
short-changed, went on to college.
The schools in Nogales, Ariz., the focus of the lawsuit, are now among the most
successful in the state in teaching English-learners.
The people of Arizona enacted a law saying English-learners should receive
intense immersion instruction that shouldn't last more than a year.
Most importantly, it was learned that there is no such magical formula and
magical figure for successful English-language instruction, something an
accurate understanding of the social science on the subject would have made
obvious in 2000.
In fact, the best evidence now is that money is probably not the key to success
in teaching English-learners. The experience in Nogales indicates it. A recent
study on Latino education generally suggests instead that the key is continuous
assessment and constantly calibrated individual lesson plans.
The Legislature sought to devise a program fitting both the original court order
and what has happened and been learned since 2000.
It provided more money for English-language instruction. It also provided for
the development of immersion models. Schools could apply for even more state
funding to implement the models but would have to demonstrate a need for it.
According to Collins, however, it is still 2000. The Legislature didn't provide
a magical formula or a magical number, and therefore its program didn't comply
with the 2000 order. The fact that, in the real world, those things don't exist
doesn't matter, legally.
The Legislature had provided that additional state funding for implementing the
immersion models would be offset by the English-learners' pro rata share of some
federal funds. Collins held that this violated federal law.
Consider the absurdity of that outcome: a federal mandate that federal funds
cannot be used to satisfy.
To compound the absurdity, assume that there were a magical formula that
guaranteed all English-learners became academic superstars and the state paid
for the entire thing. What would the English-learners' pro rata share of federal
funds be used for?
Collins also held that the Legislature couldn't offset the supplemental funding
by the English-learners' pro rata share of state desegregation funding.
Now, these funds are entirely a creature of state law. The Legislature passed a
bill enabling schools having desegregation orders to levy a property tax without
voter approval to pay for them. The state didn't have to pass such a law. It
could have left school districts on their own about complying. In fact, passing
the law was probably a mistake, since it triggered a rush of such decrees, given
the new financial incentives involved.
If, however, the establishment of that funding mechanism was a voluntary act of
the Legislature, how does partially directing how the proceeds are to be used
violate federal law?
State Superintendent of Public Instruction Tom Horne is doing the lonely job of
defending representative government on this issue. He has appealed previous
decisions by Collins to impose fines on the state and distribute the fine money
in a way opposed by the Legislature. He will undoubtedly appeal this decision as
If, however, the courts ultimately insist on keeping this issue in a 2000 time
warp, the only way out of the court-imposed straitjacket for legislators,
provided they continue to want to do right by taxpayers, may be a radically
different approach: contracting out the teaching of English acquisition for
non-native speakers, rather than attempting to accomplish it through the
traditional public school approach.
The costs couldn't be argued to be irrational, since they would be based on hard
bids. And chances are the results would be better, and the costs substantially
less, than under the court-imposed system toward which the state is drifting.
Reach Robb at email@example.com or (602) 444-8472. His column
appears Sundays, Wednesdays and Fridays. Read his blog at robbblog.azcentral.com.