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Legislature "likely" to appeal ELL ruling

The latest ruling in the Flores v. Arizona lawsuit is by no means the final chapter on the landmark English language suit, as the Legislature will probably appeal a federal court ruling yesterday ordering the state to increase funding for English classes for foreign-speaking students.
“We will consider our options and are likely to appeal,” Senate President Tim Bee said. He also said Republican legislative leaders planned to meet with their attorneys next week to discuss the matter.
Speaker of the House Jim Weiers also told the Arizona Republic said lawmakers will “continue to fight this.”
Judge Raner Collins ruled yesterday a law passed last year to revamp the funding mechanism to teach foreign-speaking students English does not satisfy a 2000 court order requiring adequate funding for those programs.
After reviewing testimony and evidence from a eight-day evidentiary hearing in January, Collins said H2064 (Laws 2006, Chapter 4) “fails to satisfy this Court’s judgment because it does not provide funding for ELL [English language learner] instruction, for all ELL students, that is rationally related to the cost of that instruction. Instead, it systematically underfunds ELL instruction by impermissible considering and deducting federal funding amounts that cannot be used for those purposed and by imposing a two-year limitation on the funding available for any student.”
Collins made a similar ruling last April, but attorneys for Superintendent of Public Instruction Tom Horne and the Legislature appealed the case to the Ninth Circuit Court of Appeals. That court ruled in July that Collins should have held an evidentiary hearing to consider whether changes made in educational funding since 2000 – including the federal No Child Left Behind program – impacted the original court order and brought the state into compliance.
Yesterday’s ruling was based on testimony from that evidentiary hearing.
Tim Hogan, the attorney who argued the state still isn’t complying with the 2000 court order, said the ruling was what he was hoping for, but he said the case is far from resolved.
“I think we’re in good shape,” he said. “But on the other hand, we’ve again got an order that says ‘comply with the law.’”
Hogan said he expects an appeal, but is hopeful Collins’ ruling will stand.
Collins ordered the state to comply with the 2000 court order by the end of the current legislative session.
Bee, who said he has worked on a solution to this issue in his entire career at the legislature, said he doubts that the matter can be resolved given the time left in this session “without greatly extending” it.
“If we appeal and a stay is granted, then of course we wouldn’t be required to complete it during the session. If we choose to try and complete it during the session, we may do it during a special session,” he said. “…That bill that we passed last year took more than half of the session to develop. It was easily a three month plan to develop and that was built upon years of work and the fact now that the judges rejected that plan really takes us back to the drawing board.”
Hogan said the attempt to get a stay on the order to act by the end of the legislative session is much different than last year, when Horne and the Legislature were able to get a stay to prevent the distribution of $21 million in fines to fund ELL programs. Hogan says that situation was completely different than this and he doesn’t expect the court to grant a stay.
“Without fines and such, I think it’s going to be very difficult for them to get a stay – it’s just a deadline to act,” he said.
Horne said he is organizing an appeal, but a decision to do so will be based on the Legislature’s reaction to the ruling.
“I’m prepared to appeal, but the real decision rests with the Legislature,” he said. “I’ll follow their lead.”
Horne said the primary basis for a potential appeal with be Collins’ refusal to acknowledge the state has met all of the findings of the 2000 order, which he says were focused solely on the Nogales Unified School District.
“Every finding that was about Nogales is no longer true,” Horne said.
He said ELL funding has more than doubled since 2000 – currently, ELL students receive an additional $355 of funding – and the Department of Education has hired NUSD’s former superintendent, who is lauded in the ruling for his efforts to improve English education in that district, as director of technical assistance to improve ELL programs at all schools. Horne says the combination of already increased funding and good leadership should satisfy the order.
But Collins, in his ruling, said that would not be enough.
“The success or failure of the children of NUSD or any other [s]chool district should not depend on having [an extraordinary leader] at the helm,” he wrote. “The state must establish clear rules and requirements that can be fulfilled and followed, no matter who is in charge.”
Governor Napolitano praised the court’s decision, saying she pointed out the flaws of the law when the Legislature first passed it. She let it become law without her signature, saying at the time she hoped the court would reject it.
“The court has confirmed what I pointed out just over a year ago – that there were serious flaws in HB 2064, and that it did not adequately address the problem of teaching our school children to read and write in English,” she said, adding she hopes legislative leaders address the issue this session.

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