Lawyer wants state heavily fined
Arizona Republic
Jul. 7, 2007


Up to $2 million a day sought for inaction on funding program

Mary Jo Pitzl
The state should be fined up to $2 million a day for violating a federal judge's order to fully fund programs for students struggling to learn English, the children's lawyer said Friday.

Attorney Tim Hogan of the Arizona Center for Law in the Public Interest filed his request with U.S. District Judge Raner Collins, saying similar fines spurred the state Legislature to act last year even though the fines were never collected and Hogan considered the action insufficient.

On Friday, he asked the court for a quick decision on his request for fines that would start at $500,000 a day and escalate to $2 million.
The fines, if granted, will start whenever the judge's order is signed

Lawmakers ended their 2007 session without addressing Collins' order to increase state funding for English-language learner programs. State officials hope they can persuade the 9th U.S. Circuit Court of Appeals in San Francisco to overturn the order.

At stake are millions of dollars of state money to pay for costs of educating an estimated 133,000 students beyond the normal costs of teaching English-proficient students. The money would bolster programs such as English immersion, small-group instruction, extended day classes and summer school.

The case has ignited the passions of Republicans and Democrats alike. Some say the state already spends enough money on English-learner students, most of whom are U.S. citizens whose primary language is Spanish.

Others say the demands of a 21st-century economy call for whatever money it takes to produce a workforce proficient in English.

The state Auditor General reported in April that state English-learner funding rose from $23.9 million in 2002 to $46.9 million in 2003 before dropping slightly to $46.4 million in 2007.

Collins has ruled that the funding remains below the level necessary to satisfy a 2000 court order to adequately fund English-learner programs.

The fines assessed by Collins last year amounted to $21 million. Under pressure from the court, lawmakers passed legislation they believed would resolve the long-running court case of Flores vs. Arizona.

"They (the fines) produced something," Hogan said.

But a resolution to the case never happened. After Hogan successfully argued to Collins that the legislative plan was inadequate, lawmakers and state Superintendent of Schools Tom Horne appealed, and the legal arguments continue.

Senate President Tim Bee said Friday that he had not yet had a chance to talk with attorneys or with other legislative leaders.

But, he said, lawmakers want to press their case before the 9th Circuit, arguing that their blueprint for English-learners does adequately meet federal law.

He rejected a suggestion, offered in Hogan's legal filing, that the state could at least repeal some of the objectionable provisions of its English-learner law, such as the requirement that federal funds must be subtracted from the instructional budget before tallying the state's contribution.

"You wouldn't want to come back with a piecemeal solution, when the whole thing is going to be up for review anyway," said Bee, R-Tucson.

The request to reinstate the fines did not stun state officials. Hogan had said he would seek penalties after the Legislature finished its work last month.

"It certainly was no surprise," said Jeanine L'Ecuyer, a spokeswoman for Gov. Janet Napolitano. As governor, Napolitano represents the state, the original defendant when the Flores case was filed in 1992.

The $21 million in fines that accumulated last year was wiped out and returned to the state's General Fund last summer, after the 9th Circuit ruled in favor of lawmakers and Horne. The Appeals Court determined that Collins should have held a full hearing on whether the state had met its requirements under federal law, instead of imposing the fines.

That hearing was held earlier this year, and Collins again ruled that the state's English-learner plan is inadequate. Lawmakers and Horne are appealing that ruling.

The fines that Hogan proposed would start at $500,000 a day for the first 30 days, increasing to $1 million for the next 30 days, $1.5 million for the following 30 days and then topping out at $2 million a day after 90 days.

About 13 percent of students in the state, most of them in kindergarten through third grade, take part in English-learner programs.

Participation has been dropping in recent years, down by 17,600 from 2005 to 2006 and by 27,900 from 2004 to 2005, the auditor general reported.

The state Department of Education said the decline may be related to new teaching strategies as well as a newly adopted statewide English-language assessment test that began in 2005