AABE--Court is asked to review its order on AIMS

04.08.2006

Lawyer: Change would come too late for '06 grads

By Howard Fischer

Tucson, Arizona | Published: http://www.azstarnet.com/allheadlines/123749

PHOENIX — The attorney for parents in the English-learner lawsuit filed an emergency motion Friday asking a federal appeals court to reconsider its order requiring affected students to pass the AIMS test this year or be denied a diploma.

Tim Hogan reminded judges for the 9th U.S. Circuit Court of Appeals a lower-court judge ruled that Arizona has yet to comply with a six-year-old order to improve funding for its programs to ensure that all students learn English.

In that December ruling, U.S. District Judge Raner Collins said that means Arizona "is requiring something of English language learner students for which the state has failed to provide the proper foundation."

Collins acknowledged that the state has offered to provide tutoring outside the classroom and other help for these students. But he said that "does not remedy the fact that the under-funded ELL programs deprive ELL students of an equal opportunity to pass the AIMS test in the first instance."

Hogan said nothing has changed since then, making it "fundamentally unfair" to now require that 3,000 ELL students in this year's senior class to pass the math, reading and writing portions of the test, known as Arizona's Instrument to Measure Standards, or be denied a diploma — even if they have passing grades in all their other courses.

In their Thursday order, the appellate judges did not decide the merits of Collins' order but only prevented its implementation until they have a chance to review it.

For the same reason, they also held up the other part of Collins' ruling to divide $21 million in accumulated fines levied against the state among schools based on the number of affected students.

Those fines were for failing to meet the judge's original Jan. 24 deadline to enact a plan. They finally approved one more than a month later, though Collins has yet to rule whether it puts Arizona in compliance with federal laws that mandate states teach English to all students.

But Hogan pointed out even an expedited schedule means no hearing — and no possible decision — before the last week in July. And a ruling at that time, even upholding Collins' original order, would not undo the damage of denying these students a diploma with their classmates.

"It will be no substitute to mail them a diploma at some unspecified later date," Hogan argued in his motion to the appellate court.

He also noted that students cannot get into most colleges or universities — including those run by the state — until they are high school graduates.

"Thus, the consequences of the Court's stay extend beyond the May graduation ceremonies and have the potential to impact the students' college careers as well," Hogan argued.

But state School Superintendent Tom Horne, who had asked the appellate court to keep the graduation requirement intact, said it is not in the best interest of a student who cannot pass AIMS to give him or her a diploma.

"It robs them of the incentive they need to acquire skills to succeed in the economy," he said.