New English-learner ultimatum set
Arizona Republic
Oct. 12, 2007


Judge vows to penalize state if funding isn't met by March 4

Mary Jo Pitzl

Arizona willfully ignored a deadline to provide adequate funding for English-language learners, a judge ruled Thursday, setting a new deadline that could trigger millions of dollars in fines if it is not met.

March 4 is the new date by which the state must budget enough money to help an estimated 133,000 students master English, U.S. District Judge Raner Collins ruled.

The deadline will be hard for lawmakers to meet. The state budget is typically not set until late spring or early summer. But House Majority Leader Tom Boone said lawmakers will make "every effort" to meet the judge's order.

Thursday's ruling is the latest development in the long-running legal battle known as Flores vs. State of Arizona.

It comes in the wake of Collins' March ruling that set the end of the 2007 legislative session as the deadline for funding the English-language programs. The Legislature adjourned June 20 with no such action.

That prompted attorney Tim Hogan to seek a contempt ruling against the state. Hogan, of the Center for Law in the Public Interest, suggested the court should revert to the penalty schedule used in 2006, when Collins imposed fines of $500,000 a day against lawmakers and the governor for failing to act on the Flores case.

The penalties climbed to $1 million a day and totaled $21 million before an appeals-court ruling wiped them out.

Collins' Thursday order did not specify what kind of sanctions the state will face if it doesn't meet the March 4 deadline but made it clear the penalties will fall on all the defendants: the Legislature, the governor and the state school superintendent.

Hogan said he was encouraged that the judge agreed with his suggestion of the March 4 deadline.

"I didn't want this issue to be lumped in with the budget decisions at the end of the session," he said.

However, Boone, a Peoria Republican, said it was unlikely the Legislature would make an appropriation for English-language learners outside the traditional budget cycle. That means the March 4 deadline could be a problem but one that lawmakers will tackle, he said.

Despite the finding that lawmakers ignored the judge's deadline, Boone said he is encouraged the judge appears to believe lawmakers are acting in good faith in meeting certain benchmarks.

Otherwise, Boone reasoned, the judge might have imposed sanctions immediately.

For example, the judge noted that the instructional models needed for a language-instruction program were approved last month, and he relied on the state's estimate that it could have funding in place for the 2008-09 school year in setting the March 4 deadline.

However, lawmakers still disagree with Collins' rejection of two of their key criteria in crafting an English-learner program and, therefore, will appeal his Thursday ruling to the 9th U.S. Circuit Court of Appeals.

Boone said lawmakers will ask the appeals court to hear their objections to Thursday's ruling at a Dec. 4 hearing involving other aspects of the Flores case.

"It makes all the sense in the world," he said.

Gov. Janet Napolitano's office did not immediately return a call seeking comment on the ruling. The governor is among the defendants in the case but has been using a different attorney than those employed by lawmakers.

The key points of dispute between the state and Hogan remain the state's contention that there should be a two-year limit on funding for these English-language programs and lawmakers' insistence that they should be able to count federal education dollars toward the sum needed to fund the language program.

Collins has ruled these provisions are too limiting and are not acceptable in a workable English-language program.