Hourly Update

U.S. judge gives Arizona quick deadline to revamp programs for English learners

PHOENIX -- A federal judge on Friday gave the state 15 days after the legislative session begins next month to finally comply with his order to properly fund English language programs or face fines of $500,000 per day. U.S. District Judge Raner Collins said it has been nearly six years since another judge concluded Arizona is not complying with federal laws to ensure all students learn English. And he noted his own order in January setting a deadline for compliance by the end of the last legislative session came and went without resolution. Collins said it appears to him sanctions are the only way to get the state to comply. His order also makes it clear he is running out of patience: That $500,000 daily penalty starts if there is no resolution by Jan. 24. Failure to act by Feb. 23 boosts the penalty to $1 million a day, going to $1.5 million 30 days after that. And if legislators adjourn without an acceptable plan in law, then the state will have to pay $2 million a day. But Collins opted not to put anyone behind bars, saying that is "not an appropriate remedy at this time." Collins also ruled the state cannot require students classified as "English language learners," to pass the AIMS tests to graduate. Attorney Tim Hogan who represents parents who sued said more than 80 percent of ELL students have failed to pass all three sections of the test required to get a diploma, versus about 26 percent statewide. Hogan said it's not fair to penalize these students because the state has never properly funded English language programs. There are about 1,400 ELL students in the current senior class. Friday's ruling is a defeat for Republican legislative leaders who had argued that lawmakers did comply with the court order. The Legislature did approve boosting the funding formula for the current school year by about $75 per student for each of the approximately 160,000 English language learners in Arizona public schools, to $435. But that plan made appropriation of future dollars dependent on each school district drafting a teaching plan, identifying what dollars it had from other sources and then asking the state for cash if they needed more. Gov. Janet Napolitano vetoed that as both inadequate and not complying with the court mandate. She responded with her own plan to boost state aid for ELL students to $1,299, one which legislative leaders refused to accept before the session ended. On Friday, Napolitano invited them to renew negotiations. But that could prove fruitless. House Speaker Jim Weiers and Senate President Ken Bennett said they plan to send basically the same bill back to Napolitano. Bennett said there may be minor alterations. But he said the Republican-controlled Legislature will not approve Napolitano's approach of simply boosting state aid per student, calling that "replacing one arbitrary number with other arbitrary numbers." "Resending the same bill accomplishes nothing," responded gubernatorial press aide Jeanine L'Ecuyer. She said Napolitano is willing to compromise as long as the final plan provides funds both to adequately teach English and comply with the court order. Weiers questioned the right of the judge to impose such a penalty. But he said if Napolitano vetoes the bill it will be her fault if the state is fined. State School Superintendent Tom Horne, who helped craft that legislative proposal, said he intends to appeal the ruling. Horne is particularly miffed the judge said it is up to state taxpayers to come up with more money. He said many school districts already get extra federal dollars based on the number of students in poverty, many of whom are English language learners. The superintendent said Collins' ruling is a double insult because much of the problem is caused by the failure of the federal government to control the border, resulting in a large number of illegal entrants and their children in Arizona schools. Horne also decried the decision to let ELL students get a diploma even without passing the AIMS tests. "It gives them a meaningless diploma that is a product of seat time rather than academic achievement," he said. "To tell these students that they're going to get a diploma even though they can't speak English and then have them compete in the economy is a terrible way to mislead the students themselves." The apparent standoff is not entirely a surprise. In fact, both Jose Cardenas, who represents the state, and Tim Nelson, the governor's attorney, asked Collins in October to review both the legislative and gubernatorial plans to decide which -- if either -- complies with his order in hopes that might break the deadlock. The judge refused. But Hogan said that, even without judicial guidance, the threat of massive financial sanctions may do the trick. "I'd like to think that this order will cause people to sit down and reevaluate their positions and see if we can't get this resolved," he said. Steve Holmes, director of language acquisition for Tucson Unified School District, called Friday's ruling "a good first step to providing a high quality education." He said TUSD is doing what it can with both the state and federal dollars it has. Holmes said additional cash is necessary to provide smaller classes, wich he said is critical to teaching English to students as quickly as possible. Holmes declined to say how much TUSD believes is necessary to properly teach English but said $1,200 per student -- a figure that came out of a cost study Republican lawmakers sought but then disavowed -- probably comes close. In opting for daily fines, the judge rejected Hogan's original request to withhold federal highway aid to Arizona, a figure that totals about $650 million a year. Collins said that would affect not only the state but also contractors and engineers -- not parties to the lawsuit -- whose businesses are dependent on those road construction contracts. The original lawsuit was filed in 1992 by parents of students in Nogales Unified School District who contended that the state was not properly funding programs to aid students who came to school speaking a language other than English. In 2000, U.S. District Judge Alfredo Marquez ruled that the $150 per pupil in additional state aid provided for students with limited English skills was "arbitrary and capricious," with no bearing on actual cost. Lawmakers subsequently increased that to the current figure of about $360. But Marquez rejected that in 2002 because it was not based on any data of the real cost. Lawmakers rejected the result of an outside cost study and instead came up with their own plan to require each school district to figure its own price tag -- the bill that was vetoed earlier this year. That left the state out of compliance with Collins' January order to have a funding in place by the end of this year's legislative session.