English-learners viewed through the looking glass
Arizona Republic
Apr. 5, 2006
When lawyers must explain who they represent . . . well, 'nuff said
Republic columnist Robert Robb

I went to Tucson on Monday to attend the oral arguments about the new English-learner legislation. It was like Alice walking through the looking glass.

Even the lawyers seemed to sense that there was something askew. For example, Jose Cardenas began his presentation by addressing the question of whom he represented.

After 14 years of litigation, you'd think that who represents whom would have been pretty well established. Nevertheless, Cardenas asserted that he didn't merely represent the attorney general, who appointed him. Instead, his client was "the State of Arizona."

But what, as a practical matter, does that mean?

I got the mental picture of Cardenas supplicating before a large, ancient oracle, imploring, "Oh, Great State of Arizona, tell me what position we should take on this English-learner thing."

Apparently Cardenas' client, the State of Arizona, is a bit messed up. It has an English-learner law, duly enacted by the methods prescribed in the Arizona Constitution. But instead of going to federal court to defend the law, the State of Arizona told Cardenas to tell the judge that not only was it currently violating one federal law, the enacted fix would violate another.

In reality, Cardenas was representing the views of a single Arizona politician, who is indeed Attorney General Terry Goddard.

Now, here's the curious thing. The people of Arizona have elected a lot of public officials to act on their behalf regarding education matters: the governor, the Legislature, the superintendent of public instruction, county superintendents, the members of local school boards. But Goddard is not one of them.

The ultimate objective is presumably to improve the education of English-learners. There is growing evidence that some Arizona schools are making notable strides in doing so within the confines of existing funding.
That includes schools in Nogales, where poor performances supposedly triggered the court intervention in the first place.

According to Tim Hogan, the attorney for the plaintiffs in the case, this is legally irrelevant. Hogan has two things in common with Goddard in this
litigation: As a practical matter, he is his own client; and no one elected him to set educational policy for the state.

According to Hogan, there's a certain sequence that needs to take place.
First, the state has to set standards for English-learner programs, such as the number of kids in a classroom. Then the state has to provide additional funding to implement the standards.

That creates educational opportunities. And only after the educational opportunities are created through additional funding do outcomes legally matter.

Now, that's a lot of specificity to tease out of a very vague and non-prescriptive federal law. In any event, I guess that on the other side of the looking glass, creating educational opportunities and improving outcomes without court-ordered additional funding is considered cheating or something.

The judge, Raner Collins, seemed perturbed that the Legislature hadn't conducted a study that produced a magical number that would turn English-learners into academic superstars. On the other side of the looking glass, apparently what might work in theory is more important than what is working in practice.

So, what should happen? Cardenas told the judge, who was also not elected by the people of Arizona to set educational policy, that he should reject this English-learner law, with specific instructions about what he would like instead. The Legislature, having gotten its day in court, could adopt Collins' dictated solution in 10 days.

If Cardenas' client, the State of Arizona, told him that, it lied. If Collins does that, legislative Republicans and Superintendent Tom Horne would rail against activist judges and appeal his ruling, as Collins'
previous decisions imposing fines and dictating how they are to be spent are being appealed.

Horne's lawyer, who had no doubt about whom he was representing and actually represents someone elected by the people of Arizona to help set education policy for the state, had another suggestion for Collins: Why not keep control of the case but let the law go into effect and see how it works?

In the real world, that seems eminently reasonable and sensible.

But on the other side of the looking glass, who knows?

Reach Robb at robert.robb@arizonarepublic.com or (602) 444-8472. His column appears Sundays, Wednesdays and Fridays. Read his blog at robbblog.azcentral.com.