US justices seem split on English learners
Arizona Republic
April 21, 2009



17-year-old Arizona lawsuit heard by high court; June ruling likely

by Dan Nowicki

WASHINGTON - The fate of a legal case that has haunted the Arizona Legislature for years is now in the hands of an ideologically divided U.S. Supreme Court.


The 17-year-old dispute over the way Arizona teaches English to non-native speakers appears to have split the nine-member high court just as it has the state's top politicians.


The court's conservatives who weighed in Monday during hourlong oral arguments questioned the lower courts' seeming micromanagement of Arizona education funding and policy, traditionally a state and local issue. If they carry the day, the Supreme Court could use the case to send a message to federal judges across the country not to overstep their authority.


But liberals on the bench suggested that Arizona's English-language instruction still is not up to snuff and that continuing federal-court oversight of a civil-rights issue is appropriate.


Longtime figures in the 1992 case, known as Flores vs. Arizona, were reluctant to make any predictions. A decision is expected in June. The case was brought by a Nogales mother whose Spanish-speaking daughter struggled when placed in an English-only classroom.


"It's hard to read the tea leaves because the case is so complicated and has been going on for so long," said Tim Hogan, a veteran Arizona Center for Law in the Public Interest attorney long involved in the lawsuit. "The questions were all over the board."


Former House Speaker Jim Weiers, R-Phoenix, and former House Majority Leader Tom Boone, R-Peoria, and their side's attorneys exuded more confidence, stressing the merits of the structured English-immersion program now in place in Arizona.

"The bottom line is these kids are going to learn English and quickly," said David Cantelme, an attorney for Arizona House Speaker Kirk Adams, R-Mesa, and Senate President Robert Burns, R-Peoria.


Arizona has roughly 140,000 students whose first language is not English.


State lawmakers have struggled with English learners since January 2000. That is when a federal judge determined that the state financed its English-learning programs in an "arbitrary and capricious" way that violated the Equal Education Opportunity Act of 1974, a landmark civil-rights law that demands "appropriate action" to hurdle language obstacles that hamper learning.


Since the decision, legislators have made several attempts to address the issue. In November 2000, voters passed Proposition 203, which provided for English-immersion instruction across the state.


The federal courts have remained unsatisfied. At one point, the Legislature had racked up $21 million in fines for inaction; the 9th U.S. Circuit Court of Appeals set the penalties aside in 2006. But the San Francisco-based appeals court last year again concluded that Arizona's English-language instruction program remains underfunded and out of compliance with the federal law.


Even now, Arizona's political hierarchy is split over what should happen. Arizona Attorney General Terry Goddard, a Democrat, and the State Board of Education are at odds with Republican Gov. Jan Brewer, state Superintendent of Public Instruction Tom Horne and the GOP legislative leaders, who want the Supreme Court to end the case.


"I gather it's often the case in institutional litigation of this sort that the political figures, whether it's the governor or the attorney general, can't go to the voters and say, 'Look, we should spend more money on this,' " said Chief Justice John Roberts, one of the court's four conservatives. "So, they go to the District Court judge and say, 'Make us spend more money on this.' And they get the same result they'd wanted in a non-democratic way, particularly when there's a division, such as here the Legislature doesn't want to do something, and the governor or the attorney general does."


Ken Starr, a former special prosecutor, argued the case for Horne and the legislators. He said the appeals court ignored improved circumstances in the Nogales district and instead fixated on how much money the state was spending.


Starr also asked the court to take into account the state's compliance with the No Child Left Behind Act of 2002, which required standards and monitors the progress of English-language learners through testing.


The 9th Circuit concluded that No Child Left Behind is irrelevant to Arizona's obligations under the Equal Education Opportunity Act.


Starr called the passage of Proposition 203 a "sea change" in state education policy that did away with "the old system in Nogales" and throughout the state.


"Our fundamental quarrel with the approach of the District Court is it blinded itself to the significant changes structurally, as well as the progress that had been made, and just said it doesn't matter because this is all about funding," Starr told the court. "And that is not true."


Justices of the court's four-member liberal wing took issue with Starr's assertions that Arizona has solved its English-language woes and that the lower courts were too heavy-handed in the funding mandates or inappropriately tried to micromanage the Legislature.


Justice Stephen Breyer rattled off a series of test scores that indicated students in the Nogales district still lag statewide.


"Now, I'm sure that progress has been made, but it doesn't seem to me, looking at that kind of thing - and the record is filled with that kind of thing - that you could say that the objectives are achieved," Breyer said.


Sri Srinivasan, the lawyer who argued against Starr, maintained the District Court did consider the progress but found it "fleeting" and "premature."


After the arguments, Hogan alluded to the Supreme Court's habit of overturning 9th Circuit Court of Appeals decisions.


"They usually don't take a case to tell the 9th Circuit what a good job they're doing," Hogan said, adding that he is holding out hope that the case's complexity will prevent justices from rushing to conclusions.