Lawmakers set to end session despite court order
Associated Press Writer
Jun. 10, 2007

By Paul Davenport

PHOENIX - Arizona legislators are on track to enter potentially risky and costly legal territory as they near the end of their current annual session without complying with a federal judge's order to revamp programs for students learning the English language.

U.S. District Judge Raner C. Collins ruled March 22 that lawmakers have until the end of the session to comply with another judge's 2000 order to provide adequate funding for English Language Learning programs.

Legislation enacted in 2006 to replace the state's current method of extra per-student funding for ELL students with a new system based on state funding for new instructional models remained "arbitrary and capricious" without providing dollars needed to ensure that the 135,000 ELL students master the state's academic standards, Collins ruled.


Lawyers for Republican legislative leaders and state Superintendent of Public Instruction Tom Horne appealed Collins' order to the 9th U.S. Circuit Court of Appeals. But Collins has yet to rule on their April motions that he put his compliance order on hold while the appeal is pending.

That means Collins' end-of-session compliance order remains in effect as lawmakers enter what they hope to be the last week or two of a session that faces a June 30 deadline for enacting a new state budget.

It's the latest twist and turn in a 15-year-old case that has previously seen Collins impose fines totaling millions of dollars and lawyers for class-action plaintiffs unsuccessfully requesting such sanctions as a cutoff of the state's federal highway funding.

The lawsuit plaintiffs want to triple the state's current per-student funding for ELL programs, a step that could translate into an additional $150 million annual expense once phased in.

Collins did not immediately respond on Friday to an inquiry about when he might rule on the Republicans' two-month-old request for a stay, and the legislative lawyers were said to be out of town and unavailable for comment on what may happen next.

However, the plaintiffs' lead attorney said he anticipates that the other side will ask the 9th Circuit for an emergency stay if Collins doesn't issue one.

But if there's no stay in place by the end of the session, attorney Tim Hogan said, the Legislature would be in violation of Collins' order for action on the issue and the plaintiffs would ask Collins to impose sanctions.

That could mean lawmakers have to return for a special session, said Rep. David Lujan, a Phoenix Democrat who has pressed for more ELL funding.

"I think the Republicans are putting all their hopes in Judge Collins staying the order but there's no guarantees by any means that he's going to stay it," said Lujan, a former assistant attorney general. "So should he not stay it, I would think we're going to be - depending on what the sanctions are - looking at possibly having to come back in special session to fix it."

Collins last year imposed $21 million in fines - later erased by the 9th Circuit - before lawmakers passed the 2006 legislation.

One GOP leader agreed that a special session could be a possibility if the courts don't put Collins' order on hold.

"To a certain extent it's up to the courts. Either they grant the stay or deny it. If they deny it, we could come in special session. The governor could call it," said Senate Majority Whip John Huppenthal, R-Chandler.

In their request for a stay, the GOP leaders said Collins should put his order on hold because he ruled incorrectly that the state legislation violates federal law, that it'd be nearly impossible for the state to get appellate review of the original 2006 legislation if it is revised this year and there'd be no substantial harm if the legislation remains on the books while the appeal is considered.

Hogan's response argued that the Republicans hadn't shown any likelihood that they'd prevail on appeal and that English-learning students' education continues to suffer.

"That is the true harm that the defendants' noncompliance continues to cause in this case. A stay will only perpetuate that harm, not prevent it," he wrote.

Meanwhile, a state task force is near the end of months of labor to develop the new ELL instructional models mandated by the 2006 legislation.


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