Judge tosses English-learners plan

March 23, 2007

PHOENIX — A federal judge late Thursday rejected the latest legislative plan to fund school programs to teach English to non-English-speakers as inadequate and illegal.

In a 16-page ruling, U.S. District Judge Raner Collins said state officials still are not providing enough money to comply with federal laws requiring states to ensure all children have an adequate opportunity to learn English.

On top of that, Collins said legislation approved last year limits the additional state funding to just two years, something he said federal law does not permit. The judge said the evidence shows some students who come to school speaking a language other than English need more time than that to become proficient.

And Collins said the legislation illegally requires schools to first divert some of their federal aid — money received for other purposes — before being eligible for additional funding, potentially jeopardizing the entire $600 million a year Arizona gets in federal aid to education.

The judge gave lawmakers until the end of the current legislative session to come up with a solution. At this point there is no set adjournment date, though lawmakers need to adopt a state budget by June 30.

Gov. Janet Napolitano, who agreed to let last year's measure become law without her signature, said Thursday's ruling is no surprise.

"The court has confirmed what I pointed out just over a year ago, that there were serious flaws in HB 2064, and that it did not adequately address the problems of teaching our schoolchildren to read and write English," she said in a prepared statement. Napolitano said she wants lawmakers now to draft a solution that focuses "on children in the classroom rather than lawyers in the court."

How much that would cost is unclear. But figures presented by Tim Hogan, attorney for parents of Nogales Unified School District students who filed the original lawsuit in 1992, said that district's experience shows it would cost close to $212 million to do the job right for the estimated 135,000 students classified as English learners.

By contrast, the state is now spending less than $50 million; even the offered solution that Collins rejected brought that up to just about $60 million.

But the chances the Republican-controlled Legislature will redraft the law to comply are iffy.

Senate President Tim Bee said he wants to study the ruling. But House Speaker Jim Weiers made his displeasure clear — as well as his view that more legal battles lie ahead.

"We're going to continue to fight this to make sure that the people of Arizona are served correctly and that one judge, because of his opinion, is not going to step in the way of common sense and what's right," Weiers said.

Right now the state provides schools an extra $365 for each English learner, meaning students not yet proficient.

Lawmakers agreed to boost that to $444 with a promise of more if schools, which would have to follow yet-to-be-developed teaching models, prove they need more. But they would first have to use funds they get for No Child Left Behind and other federal programs aimed at students in poverty, something Collins said is impermissible.

And the legislation limits the extra funding to two years. Schools could get additional funds, but only for out-of-classroom help, which Collins said left schools with the fixed costs of teaching students who are not yet proficient.

State Schools Superintendent Tom Horne disagreed with Collins' assessment of the need for more time. And he said the limit makes sense.

"Putting the limitation gives the schools the incentives to get it done within the two years, which is practical for language proficiency," he said, knowing the funding will cease after that point.

Thursday's ruling is in line with one issued by a prior federal judge in 2000 and another by Collins himself last year. But lawyers for Horne and the Legislature subsequently convinced a federal appeals court that Collins needed to reopen the case to look at how the situation has changed since the original 2000 ruling.

In the latest ruling, Collins acknowledged there has been some improvement, at least among elementary-school students. But he said that was because school officials diverted other funds to teaching English, as the amount the state provides was not enough.