Court: State can
argue it's met English requirement
By Howard Fischer
Tucson, Arizona | Published: http://www.azstarnet.com/allheadlines/275309
PHOENIX — The nation's high court agreed Friday to let state officials argue Arizona has done enough to help students learn English, and should not be required to do more.
The unsigned order, by itself, does not absolve the state of its obligations. It is, however, a major setback for Tim Hogan, the attorney for the parents who sued in 1992, who contends Arizona lawmakers have yet to meet their obligations under federal laws.
"It's not a good sign," Hogan said.
He pointed out the 9th U.S. Circuit Court of Appeals sided with him when state lawmakers made the same argument. Hogan said the U.S. Supreme Court does not frequently agree to consider a case from an appellate court unless at least some of the justices believe that decision was wrong.
Overall, the Supreme Court accepts only about 1 percent of the petitions for hearings.
Hogan noted, though, it takes only four of the nine justices to agree to hear a case — one short of what it takes to actually overturn the appellate court ruling.
State School Superintendent Tom Horne, who is leading the fight to get the courts out of the issue, said Friday's decision will give him a chance to prove Arizona taxpayers need not spend more on programs for "English-language learners," those students who are not proficient in English.
The 1992 lawsuit charged the state was not meeting its obligation under the Equal Education Opportunity Act. It requires states to "take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs." A federal judge, in a 2000 ruling, agreed.
Since then the case has been in and out of court as lawmakers tinkered with additional funding. So far, none of the changes have satisfied either U.S. District Court Judge Raner Collins in Tucson or the federal appellate court.
After the last appellate court decision, lawmakers came back and agreed to add another $40.6 million to fund these programs. Hogan has asked Collins to rule that is not enough and is unequally divided.
At the same time, Horne and Republican legislative leaders decided to ask the Supreme Court to intercede in hopes of having the entire case thrown out. Friday's ruling gives them that chance.
"The federal statute that gives the courts jurisdiction requires us to make reasonable efforts to teach students English," Horne said. "We are doing that."
He said Hogan's complaint is that the state is not providing all the necessary funds, forcing school districts to divert cash from other programs to ensure students learn English.
Hogan, however, said Horne's argument is based on a flawed presumption.
"The law requires more than an effort," he said.
"The (2000) judgment requires that funding be based upon the costs" of actually teaching students to learn English, Hogan continued. "That's what they've never attempted to do."
In fact, he noted, the school districts themselves, in requests for additional cash, sought a total of $275 million, versus the $40.6 million lawmakers actually voted last session to provide.
Separate is the question of whether the 1974 Equal Education Opportunity Act actually applies.
Eric Bistrow, Horne's attorney, pointed out Congress approved the No Child Left Behind Act in 2001, one provision of which requires states to take effective actions to help children learn English. He noted Arizona has been found in compliance with that latter law, making it illogical for Hogan to argue that Arizona is not doing enough.
Hogan, however, said the 2001 law is irrelevant. He said the 1974 law on which he is relying essentially is a civil rights act to protect individuals, while No Child Left Behind is a "regulatory scheme for schools."
No date has been set for the arguments.
On StarNet: Find all of the Star's education news at azstarnet.com/education