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Provisional changes in the part of the No Child Left Behind Act that slaps failing and succeeding labels on schools are affecting nearly every state.

But among the four states bordering Mexico, Arizona seems to be the only one arguing the law that reduces the amount of time English-language learners have to master the language before their state assessment scores count.

Before the 2005-06 school year, ELL students in Arizona had three years to become proficient before their scores counted towards Adequate Yearly Progress, the federal criteria that grades districts and schools on their rates of improvement. Now, ELL students only have two years to learn the language, a change that is being challenged by state Superintendent Tom Horne.

Last year, 237 schools in Arizona did not pass muster in the Adequate Yearly Progress criteria. This year, figures from the state show that 650 out of 1,881 public schools will be classified as not making progress under federal guidelines.

Of those 650 schools, 110 of them are affected by the new ELL standards.

Many of the others are affected by two other new changes - adding three elementary grades to those already surveyed and requiring special-education students not on federally-approved assistance to take the test.

Horne is taking the issue to federal court, he said, because he "they made an agreement with me (to allow ELL students three years to learn English), and now they’re reneging on that agreement."

Unfortunately for the 110 schools affected by the change, appeals will be denied by Horne "because if we don’t follow their (federal) rules, we'll get fined," he said. But if Horne is successful in his lawsuit, the appeals could be heard.

Two of the border states, Texas and New Mexico, are not affected by the law change because they give their state assessment tests in Spanish and English, which means a student doesn't need to have a high level of English proficiency to pass the tests.

"That can make a big difference," said Texas Education Agency spokeswoman BeEtta Culbertson.

California requires all students to pass the state test in English, but ELL students' test scores have counted after their first year since the introduction of No Child Left Behind, said Bill Padia, that state's deputy superintendent for assessment and accountability.

"It's not an issue for us," he said.

Horne said that while it's possible for ELL students to become proficient in English after their first year, passing a test in English at that time is another matter.

"No person with common sense can believe a person can come here from Mexico and pass the AIMS test in three years," Horne said. "They're saying that if you have a significant number of ELL students, we condemn you to failure, no matter how good you are."

School labels are expected to be released to the public Friday.