Ariz case on English learning approaching high-cost junction
Associated Press
Nov. 5,  2007

By Paul Davenport, Associated Press Writer

With potentially high stakes for Arizona taxpayers and thousands of predominantly Hispanic students, a federal appeals court is being asked to decide whether the state has done enough to improve school programs for students learning English.

Lawyers for Republican legislative leaders are asking the 9th U.S. Circuit of Appeals to overturn a trial judge's ruling last March that changes made to Arizona's English Language Learning programs and funding don't satisfy a 1974 federal mandate for equal educational opportunities for English-learning students.

The appeal cites changes made under a 2006 law that set the state on a course to require districts to pick and choose among a menu of state-drafted instruction models and get supplemental state funding depend on the district's costs.

A key issue in arguments scheduled Dec. 4 by the San Francisco-based appellate court is whether a since-retired judge's 2000 ruling that Arizona's programs and funding were inadequate still is valid in the wake of the federal No Child Left Behind school accountability law and other developments that changed the education landscape in Arizona since 2000.

Also being contested is whether the case applies statewide or only to conditions in Nogales, a southern Arizona border town whose school district was the basis for the 1992 class-action lawsuit.

The Nogales district has approximately 6,000 students, predominantly Hispanic. Arizona's more than 1 million public school students include approximately 135,000 English-learning students.

If the appeal is denied, the state could face contempt-of-court fines if it doesn't substantially increase state funding for ELL programs at a cost that some have estimated could exceed $200 million annually. The March 4 deadline falls about only seven weeks into the 2008 legislative session, and lawmakers would be hard-pressed to resolve the issue that quickly, particularly in the face of a developing budget shortfall.

A ruling the other way would allow full implementation of the 2006 law and allow lawmakers to step back from an issue that's bedeviled them for years. It's not yet known how much how much its changes will cost because those will vary by school district.

Though the case is now 15 years old, the starting point for the current appeal is U.S. District Judge Raner C. Collins' March 22 ruling that the 2006 law still doesn't provide adequate funding and violates federal law in several respects.

The Legislature missed a deadline that Collins set for action by the end of the 2007 legislative session last June, and Collins said in an Oct. 11 order that he will impose sanctions if the state fails to adequately fund the programs by March 4.

Republican legislative leaders' appeal argues that Nogales has improved its ELL programs, now providing appropriate class sizes, qualified teachers, adequate instructional material and a functioning tutoring program.

Also, the state has increased its funding for districts' ELL programs, instituted standards, provided districts with coaching assistance and monitoring their performance, the appeal argues.

However, an underlying issue is that Collins has missed the fundamental point that federal courts' previous approach for enforcing the 1974 mandate with a cost-study approach is obsolete with the enactment of No Child Left Behind, the appeal said.

The 2006 state law will tailor funding to districts according to their specific needs, not by a blanket funding increase, the appeal stated. "The one-size-fits-all approach of a cost study necessarily will leave some districts underfunded and some districts overfunded."

Lawyers for the lawsuit plaintiffs said the state's funding system remains arbitrary and capricious, bearing no relation to actual funding needed so ELL students can master academic standards.

No Child Left Behind didn't erase the state's duty to fund ELL programs without violating federal law by requiring districts to lose state dollars by the amount of the their federal funding, the plaintiffs' lawyers argued.

"Arizona's funding for ELLs is still based on a wholly arbitrary amount driven not by educational considerations but by political ones," they wrote.

Collins' Oct. 11 ruling didn't specify what the threatened sanctions might be, but he imposed a total of $21 million of daily fines against the state in the same case in 2006. Those fines started at $500,000 and rose gradually to $2 million.

Those fines were rescinded by the 9th Circuit, which ordered Collins to review the effects of NCLB and other circumstances. That led to the March 22 ruling.

The Oct. 11 contempt order isn't formally part of the appeal now pending before the 9th Circuit, but any ruling that overturns Collins' March 22 ruling on the 2006 law effectively also would overturn the contempt finding, a lawyer for Republican legislative leaders said.

"If that were to go in our favor, I can't see the contempt order holding up," said attorney David Cantelme. "If that's gone, I think the rest of the case goes too."