Arizona: Legal battle continues Monday over English Learner law

[Harold Schiffman]

Legal battle continues Monday over English Learner law

By Howard Fischer
Capitol Media Services

Friday, April 17, 2009


PHOENIX -- On paper, the issue the U.S. Supreme Court will take up
Monday is simple: should Arizona lawmakers be forced to spend hundreds
of millions of dollars to comply with a judge's ruling that they do
more to ensure students learn English. But what the court rules in the
case that has been dragging through the legal system for the last 17
years is giving a host of outside groups a forum to push their own
agendas. These range from a debate on the merit of settling lawsuits
with consent decrees to an attack on bilingual education as dividing
the nation. If nothing else, the decision due later this summer could
redefine states' rights versus federal authority.

Monday's hearing follows rulings by a trial judge and the 9th U.S.
Circuit Court of Appeals that Arizona is not complying with federal
laws requiring states to "take appropriate action to overcome language
barriers that impede equal participation by its students in its
instructional programs.'
Republican lawmakers and state School Superintendent Tom Horne contend
the state is, in fact, in compliance. They also argue the situation
has changed since the original 2000 ruling, making further judicial
oversight unnecessary and illegal. But Tim Hogan, representing the
parents who originally sued, said the record shows otherwise.

And Hogan wants the nation's high court to note state officials
actually signed a consent decree in 2000 agreeing to bring Arizona's
teaching into compliance with the law. He said that prevents lawmakers
from trying to get the Supreme Court to overrule indirectly what they
never challenged directly. It all started with a complaint in 1992 by
several parents that their children, enrolled in Nogales public
schools, were not getting the education they needed. They charged the
state was not complying with the "appropriate action' requirement of
the law. The trial judge agreed, finding there were too many students
in classrooms, not enough qualified teachers, inadequate tutoring
programs and insufficient teaching materials.

Lawmakers subsequently enacted several different changes affecting
schools throughout the state, all of which, to date, judges have found
lacking.
The most recent effort, a 2006 change in law, found some favor with
Judge Raner Collins as a possible solution. But he concluded -- and
appellate judges agreed -- two provisions were illegal: limiting extra
help for each student to no more than two years and requiring schools
to first use other federal funds before getting additional state cash.
Horne and lawmakers decided to seek Supreme Court review, not only
over the two provisions but the whole question of whether federal
courts should butt out.

One threshold question is whether the problems still exist - and
where. When the complaint was first filed, Miriam Flores, the child of
one of the Nogales parents, was in grade school; she now is a student
at the University of Arizona. Attorneys for Horne and the Legislature
say Nogales students are doing better because of prior changes in the
law, making further court intervention unnecessary. Those changes have
put extra funding for students labeled "English language learners' at
approximately $360 above basic state aid, compared to $150 when the
lawsuit was filed.

Hogan said the record in Nogales shows otherwise. And he said there is
evidence it takes an extra $1,600 for each English learner to do the
job right. With about 150,000 English learners in Arizona schools -
close to one out of every eight students -- that carries a price tag
of close to a quarter billion dollars. He also said Collins recognized
the problem is not confined to a single community. Hogan said courts
need to stay involved in the case until all students statewide have
the opportunity to learn guaranteed in federal law.

>>From there the issues become more legally complex. Ken Starr, the
nationally known lawyer hired by lawmakers at more than $900 an hour
to argue the case, said Collins had no right to set deadlines for the
state to come up with acceptable plans. Collins even imposed fines for
delays, though those were overturned at the appellate level. Hogan
said fines are the only way to get the attention of the
Republican-controlled Legislature. Outside groups have submitted their
own legal theories to the high court.

The American Legislative Exchange Council, made up of state lawmakers
from around the country who push free enterprise and states' rights
issues, wants the justices to halt further court oversight of
Arizona's programs. The organization's lawyers say legislators need
the flexibility to adjust to changing circumstances. Attorneys for the
Eagle Forum filed their own arguments saying bilingual education --
which technically is not even an issue in this case -- is dangerous
for the country because it doesn't force kids to become proficient in
English. That group's legal brief even warns that 40 million people in
this country who do not speak English could demand their own language
be used for public business, eventually leading to schools that teach
in their language and government operations in that language, too.

And the Washington Legal Foundation argued it is irrelevant that state
officials entered into that consent decree in 2000 to fix the
problems. Its lawyers say that the promises of prior public officials
cannot bind those currently in office. On the other side, attorneys
for Tucson, Mesa, Sunnyside, Tempe Elementary and Phoenix Union school
districts argued that Collins' orders are not micromanagement of
education policy. They said the judge simply told lawmakers when their
prior efforts fell short and gave them deadlines to come back with new
plans. The Obama administration also is on Hogan's side, with the
acting solicitor general saying the evidence shows Arizona has not yet
complied with federal law.

And even a group of individuals who describe themselves as
"educational policy and finance scholars' filed their own legal papers
arguing that adequate funding of programs is necessary to ensure
students learn English.

http://verdenews.com/main.asp?SectionID=1&subsectionID=1&articleID=30437

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