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

Robert Robb
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 it.

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 well.

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