Money at heart of English-learning fight
The Arizona Republic
Dec. 4, 2007

Mary Jo Pitzl

Arizona's protracted legal battle over public-school policies for teaching English to non-native speakers has been cast in a variety of ways: a fight over states rights, a showdown over judicial activism, a question of how best to teach English.

But as the case moves to the 9th Circuit Court of Appeals this week, it's really all about money.

At issue in today's hearing in San Francisco is whether the state should be held in contempt, and subject to potentially millions of dollars in fines, for not providing enough funding for language instruction.

It's the latest front in a legal battle that started as a lawsuit by the parent of a Nogales girl more than 15 years ago. The mother, Miriam Flores, argued that the state did not provide adequate instruction to help her Spanish-speaking daughter learn English.

Today, the Flores v. Arizona case continues to pivot around the issue of how much money is sufficient to meet federal law, which requires an equitable education for all students.

The court's decision will have a bearing on all public schools in Arizona, where an estimated 140,000 students are classified as "English-language learners," meaning they need extra help in acquiring English skills.

It also could leave deep imprints on state coffers, coming at a time when lawmakers are grappling with ways to close a budget shortfall that is estimated at $800 million this year and potentially $1.5 billion next year.

U.S. District Judge Raner Collins in March ruled that the Legislature's plan for paying for English-language instruction didn't meet federal law. Specifically, he criticized two components of the state's policy: a plan to use federal poverty dollars to help foot the bill for classroom instruction and a two-year limit on how long a student could stay in an English-language program. Both of those items skirted the state's responsibility to provide equal education opportunities.

Republican legislative leaders appealed that ruling, setting the stage for this week's hearing. They have also asked the three-judge panel to overturn another Collins order, issued in October, that holds the state in contempt for failing to enact an "adequate" language program.

It's unclear how much money it would take to meet the judge's definition of adequate funding. But the state's current contribution of $383 per English-language learner is not enough, Collins ruled. With an estimated 140,000 students classified as English-language learners, that amounts to about $54 million a year.

The plaintiffs, represented by attorney Tim Hogan of the Arizona Center for Law in the Public Interest, noted that the Nogales Unified School District had success with English-language learners due primarily to increased spending of an extra $1,570 per student.

But lawmakers and the state school superintendent argue that it was the dedication of the staff at the school district, the same district where the Flores dispute erupted in 1992, that led to progress.

"The issue, in my mind, is not the amount of money," said Tom Horne, who, as state superintendent of public instruction, is one of the defendants in the case. To him, the key to English-learning success rests in how the language is taught and the type of leadership from school officials.

But Horne notes that since money is at the center of the long-running controversy, the state should get more help from Washington rather than being rebuked for trying to tap federal funds.

"The problem was created by federal negligence at the border," Horne said. "We should be getting more federal dollars."

He contends that many of the students classified as English-language learners are from families that illegally crossed the border into the U.S. And he cites a Pew Research Center study to back that up.

But that argument is a side issue to the heart of the lawsuit. The controversy would go away, and the legal appeals would stop, if the Legislature simply dedicated more money to the language programs, Hogan said.

Impatient with the lawmakers' delay in funding the program, Hogan this past summer asked Collins to hold the Legislature in contempt for failing to act. He noted that attorneys for the Legislature said in January that they were close to putting the finishing touches on their English-learner programs. That included creating instructional models that school districts can follow as well as funding-request forms to determine the cost to the districts. Those models have since been finished.

Collins agreed, and set March 4, as the compliance deadline. After that, penalties will be assessed. Hogan has suggested the same fine structure used in 2006 to compel legislative action: an escalating scale that begins at $500,000 a day and bumps up a half million dollars every 30 days.

Tuesday's hearing will mark the second time in two years that the Flores suit has landed before the appeals court.

Last year, the court heard arguments from Horne and lawmakers that the lower court had failed to hold a full hearing on some of the merits of the case. The appeals court agreed, triggering an eight-day trial earlier this year in Collins' court. After that trial, Collins sided with the plaintiffs and issued his March order that the state was still failing to provide the appropriate level of instruction.