Justices to hear Ariz. case
Arizona Republic
April 20, 2009

U.S. high court may settle English-learner controversy

by Pat Kossan - Apr. 20, 2009 12:00 AM
The Arizona Republic

A 17-year-old legal battle over how Arizona treats students who are still learning English will be argued today before the U.S. Supreme Court in a case the justices could use to set sweeping new limits on the power of the federal courts over states.
The hearing is the latest, and perhaps final, stop in the divisive case known as Flores vs. Arizona. The case has pitted state lawmakers against federal judges since 2000.
That's when a federal district court decided the state was not living up to the federal Equal Education Opportunity Act of 1974. Among other things, the law requires schools to take action to help students overcome language barriers that prevent them from fully participating in education programs.
The Supreme Court could decide that Arizona must spend more than its current $360 to $400 per English learner or decide the state is making progress and send the case back for a lower court to reconsider. The court also could dismiss the case and use the opportunity to rein in the power of federal court judges to tell states how to use their money.
Cases that pit the federal courts against a state's right to govern its own affairs are likely to make their way to the high court often in the coming years, said attorney Clint Bolick, an author and constitutional attorney with the Goldwater Institute who has argued cases before the Supreme Court. Bolick expects the number of such cases to increase because the federal government is sending the states more money to aid education, health care and prisons; with that money come more federal oversight and regulation.
"This could be Round 1 of a very pronounced battle," Bolick said. "I think you'll probably see a growing clash between states and the federal government - in Arizona, in particular, given our ornery nature."

Case moves through appeals

Flores vs. Arizona was filed in 1992, and in 2000 the federal court ordered Arizona to establish a program to teach English to about 140,000 students, determine the cost and fund the program. In 2005, the court threatened to impose fines of up to $2 million a day when it decided the Legislature was not quickly and completely complying with its order.
By February 2008, attorney Tim Hogan of the Arizona Center for Law in the Public Interest had persuaded the 9th U.S. Circuit Court of Appeals that the state still had not adequately funded an English-language-learner program and kept alive the threat of fines.
To ward off those fines, the state created a new English-immersion program and funded it with an additional $40 million.
Hogan and the schools he represents called the effort inadequate and continued to pursue the case.
Tom Horne, Arizona's superintendent of public instruction, and legislative leaders hired attorneys and asked the U.S. Supreme Court to dismiss the case and protect the right of Arizona to run its own schools. In January, four of the nine justices agreed to consider the question, enough to get it on the court's schedule.

Factors for the state

Horne and legislative leaders can point to several factors working in their favor in the case:

• The court's history. The Supreme Court rarely takes the time to wade into a case unless it expects to change a standing court order, so Hogan is fighting "an uphill battle" to keep the case alive, said Paul Bender, a constitutional-law expert and former dean of the Arizona State University's Sandra Day O'Connor College of Law.
Also, "the tendency of this court is against federal intrusion in the way states run schools, prison and other institutions," Bender said.
The Court has heard, and overturned, more decisions by the notably liberal 9th U.S. Circuit Court of Appeals than other federal appeals courts.

•  New learning programs. Horne and the legislative leaders want the justices to consider the state's new language-learning programs and the new money it added to fund the program.
Bolick said that in recent decades, more federal judges have viewed civil-rights laws as providing equal opportunity but have not expected them to guarantee equal outcomes.

•  No Child Left Behind. The state has complied with the federal No Child Left Behind Act, which attorneys can cite as evidence that Arizona is helping language learners.
However, both liberal and conservative constitutional-law experts view this argument a stretch.

Factors against the state

Factors weighing in favor of Hogan's side of the case:

•  Lack of student progress. Despite the state's increased programs and money, Arizona's English learners are not improving on their state and national test scores.
"If the court understands it still really is not a good situation, that there still really is not enough funding for the state to comply with what the state ought to be doing, then I think he (Hogan) has a chance," Bender said.
On top of this, state lawmakers never complied with the court's direct order to research the amount of money needed to improve language-learning programs and fund the programs.
"That may rub some of the justices the wrong way," Bender said.

•  A divided state. Arizona Attorney General Terry Goddard and the Arizona State Board of Education are not siding with Horne or the legislative leaders. Experts in both liberal and conservative camps say the failure of Arizona to present a united front will not decide the case but could sway members to narrow the sweep of any decision. The court could send it back to the lower court with new instructions, keeping the case alive and a local issue.

•  A divided court. Horne and the legislators' arguments could sway the four conservative justices on the nine-person court. But Justice Anthony Kennedy, often a swing vote, is less predictable and less conservative than he was a decade ago, particularly in minority-rights issues, Bender said. Kennedy could be the swing vote.
The least expected outcome in Flores vs. Arizona would be for the high court to simply reaffirm the lower court order and instruct Arizona to step up and comply.
Attorneys who know the case and have experience with Supreme Court cases expect a complicated decision, which will be released in June.

Reach the reporter at pat.kossan@arizonarepublic.com.