A primer on English-learner lawsuit
Arizona Republic
Jan. 23, 2007

After spending much of the past two weeks in a Tucson courtroom, editorial writer Linda Valdez prepared this primer to help readers understand a long-running lawsuit dealing with how to educate English-language learners in Arizona schools. About 135,000 Arizona schoolchildren are not proficient in English, according to the state Department of Education.

The issue

In 2000, a federal judge ordered Arizona to determine how much extra it costs to educate schoolchildren who do not speak English and to provide schools with the necessary money. Later this week, the third week, a number of high-powered attorneys will argue in the Tucson courtroom whether a law passed by the Legislature last year is good enough to satisfy the court.

The federal Equal Opportunity Education Act requires the state to pay the extra costs of educating children who are not proficient in English, but there is no agreement on what those costs are. Currently, districts get about an additional $355 per student. The 2006 legislation under court scrutiny raises that to $432. The attorney representing those who sued the state says the real costs range from $1,600 to $3,000.

The players

U.S. District Judge Raner Collins: He levied $21 million in fines against the state for delays and then ruled that the 2006 law was inadequate.

Ninth U.S. Circuit Court of Appeals: It wiped out the fines and told Collins to reconsider after hearing testimony.

Tim Hogan: Attorney for Arizona Center for Law in the Public Interest, which initiated the lawsuit against the state 15 years ago and now argues that the
2006 legislation is inadequate.

José Cárdenas: Private attorney representing the attorney general and Gov.
Janet Napolitano's position that the law is fatally flawed.

Eric Bistrow: Private attorney representing state Superintendent of Public Instruction Tom Horne's position that the 2006 law does the trick.

David Cantelme: Private attorney representing the Legislature's position that the law does the trick.

Best argument by those who want court to accept 2006 law

A lot has changed. In 2000, when the court ruled that Arizona was not doing enough, the state spent only $150 per English-learner. In addition to funding increases, the state adopted standard procedures to identify students who should be classified as English-language learners and to determine when they have achieved proficiency.

The federal No Child Left Behind law has made the state more accountable for the progress of these students. Schools in the Nogales Unified School District, where the case originated, are doing "an exemplary job with their English-language learners," according to testimony by Margaret Garcia Dugan, deputy superintendent of public instruction.

What's more, the law requires the state to identify models for educating English-learners and sets up a process for districts to request additional state money by identifying their extra costs implementing these models. This could ultimately result in establishing the real costs of educating English-learners.

Toughest sell for those who want court to accept law

Bistrow and Cantelme argue that more funding is not the answer. Bistrow and Garcia Dugan praised the success of the English-learner program at Glendale Union High School District, while characterizing it as "gold plated" because it costs the district considerably more than what the 2006 law provides. (One witness testified that a 2001 study put the cost at $1,083 per student; Glendale officials say it now ranges from $3,400 to $4,010.)

Yet during cross examination, Garcia Dugan said the plan the Department of Education posted on its Web site as a model for educating English-learners is identical to the Glendale program. When asked by Hogan if she'd informed schools that the model distributed by the Department of Education was "gold plated," Garcia Dugan said, "No, we did not."

Best argument by those who want court to reject 2006 law

Federal law prohibits using federal money to supplant state funding for English-language learners, yet the 2006 law specifically requires school districts to take federal funding into account before requesting additional state money. This was characterized as a "blatant violation of the law" by an expert witness called by Cárdenas. Misuse of federal funding could result in the loss of $600 million in federal aid, Cárdenas says. What's more, the federal Equal Opportunity Education Act requires that these children get what they need, but the 2006 law limits additional per-student funding for all English-learners to two years. Several witnesses suggested it can take much longer for some children.

Toughest sell for those who want the court to reject law

Hogan argues that higher funding is essential. But even the governor, who previously argued for increasing funding to more than $1,000 per English-learner, built in a cost of only $432 per student in her fiscal 2008 budget. Hogan has said he'll prove it costs $1,600 per student, which would cost nearly $170 million in a year when both lawmakers and the governor have other priorities for limited state dollars.

Best possible outcome

Even as the court was taking testimony, legislative leaders were reviewing a settlement proposed by Hogan. His plan would up the per-pupil aid to $675, eliminate the supplanting of federal funds and delete the two-year limit. If lawmakers can work out a compromise Hogan will buy, the judge will likely approve it. The court would monitor progress until July 2008, but the case would essentially be over.

Worst outcome

The judge's decision, whatever it is, gets appealed, and this 15-year-old case continues without resolution for more years of costly and frustrating litigation.