By and large, discussions about how to properly fund programs in Arizona schools to teach students to speak English revolve around cost, accountability and methodology. An undercurrent that colors the debate, however, is immigration status.

With Governor Napolitano’s June 17 release of a plan to pay for English education in compliance with a federal court ruling, some Republicans are saying something that generally goes unspoken — not only will the program spend too much money, but the recipients of the education are school children that shouldn’t be here, anyway.

“Under the governor’s program, this becomes Mexico’s best school district north of the border,” Speaker of the House Jim Weiers, R-10, said, pointing out that many of the children are either here illegally or have illegal immigrant parents.

Although Mr. Weiers said he was disputing the cost to educate the kids, not the federal requirement that they must be educated, one Republican senator said the federal government has no right to tell Arizona how to run its schools.

Sen. Ron Gould, R-3, said there is no constitutional mandate for the U.S. government to be involved in education whatsoever; it is a states’ rights issue, he says. Mr. Gould said the state has no obligation to educate non-citizens.

When reminded that many of the students learning English in public schools were born in Arizona and are American citizens, despite having parents who immigrated illegally, Mr. Gould said he disagreed.

“If their parents are illegal,” he said, “they’re illegal.”

He blames an incorrect interpretation of the 14th Amendment to the U.S. Constitution, which was ratified in 1868.

Section I of the amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Mr. Gould contends that the intent of the amendment was to deal solely with slaves, who, after being freed, were not citizens of any country. He says the text was not intended to be applied to those here illegally or their children.

“They should be deported, along with their parents,” he said.

On May 3, Rep. Russell Pearce, R-18, e-mailed an article to his fellow lawmakers that outlined the argument against considering such children American citizens. Written by P.A. Madison — who is identified only as a “former research fellow in Constitutional studies” — it is titled “The UnConstitutionality of Citizenship by Birth to Non-Americans.”

The article, which has been circulating the Internet since at least February, relies heavily on the floor testimony of the Congressmen who wrote, debated and approved the amendment.

The main point of contention is the second clause of the amendment, “…and subject to the jurisdiction [of the United States]…” and whether or not it applies to children of illegal immigrants.

According to the article, Michigan Republican Senator Jacob M. Howard, when he introduced the amendment in 1866, said, “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

Further Congressional debate centered on what “subject to the jurisdiction thereof” meant. The article quotes Sen. Lyman Trumbull, an Illinois Republican and chairman of the Judiciary Committee, as saying the phrase only applied to those “[n]ot owing allegiance to anybody else.”

However, the courts, including the 1898 Supreme Court case United States v. Wong Kim Ark, have consistently recognized the constitutional guarantee of citizenship to children born in the U.S. In that case, the nation’s highest court held that a child born in San Francisco of Chinese parents — who, in accordance with the Chinese Exclusion laws in effect at the time, could never become citizens — was an American citizen at birth, by virtue of the 14th Amendment.

The Court wrote, “[a]s appears upon the face of the [Fourteenth] Amendment, as well as from the history of the times, [the amendment] was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect.”

The Supreme Court also ruled in that case that only two classes of children — those born to alien enemies in a hostile occupation and children of diplomatic representatives of a foreign state — born in the United States are “recognized [as] exceptions to the fundamental rule of citizenship by birth within the country.”

Governor’s Proposal

The governor’s proposal appropriates an additional $13.5 million for English Language Learner, or ELL, funding for the fiscal year 2006 budget, which begins July 1. Essentially, the plan calls for a 21.7 percent increase over the current statutory funding level for ELL Group B weights, from 0.115 to 0.140.

Because it costs more to teach students that do not speak English, school districts receive a slightly higher funding level for those students in the form of Group B weights, a factor that is added to the per-student funding all pupils are allotted.

After the upcoming fiscal year, Ms. Napolitano’s plan repeals the Group B funding for ELL students effective June 2006 because, according to a summary of the proposed bill that accompanied the legislation, the current weight “is not appropriately isolated to manage and track expenditures for English Language students.” The current system, the summary continues, creates a dedicated funding mechanism that protects the funding “by making it more transparent and eases financial accountability.”

In order to appropriately fund ELL students to meet the court mandate, the legislation would create the English Language Acquisition Program (ELAP) fund, beginning in fiscal year 2007.

The ELAP allocation for a school district or charter school is determined by multiplying the number of ELL students by $667 in FY2007; $978 in FY2008; and $1289 in FY2009.

State Spends $355 Per English Learning Student

The state currently spends $355 per ELL student.

The funding will be used to provide instruction and other services for ELL students, including: professional development for teachers; developing strategies to reduce student to teacher ratios; developing plans for extended learning opportunities for students; transportation for students to attend extended learning opportunities; parent and community outreach; teaching materials and supplies.

There are approximately 160,000 students in state schools that speak foreign languages, mostly Spanish. If the number of ELL students remains steady, in FY2009, Ms. Napolitano’s plan would cost the state an estimated $206 million. The costs for FY2007 and FY2008, respectively, would be nearly $107 million and more than $156 million.

Public Hearings Set

The Governor’s Office is hosting a pair of public hearings on the proposal to gather input from parents and school administrators. The first hearing will be June 28, from 10 a.m. to noon in Phoenix, at the Pendergast Learning Center, 3841 N. 91st Ave. The second will be June
30, from 5 p.m. to 7 p.m. in Tucson, at the Sunnyside Unified School District offices, 2238 E. Ginter Rd.

Mr. Weiers said he was not surprised at the governor’s recommendations but doubts whether they will meet the court’s requirement in the Flores v. State of Arizona case, which was filed on behalf of a Nogales family in 1992.

Weiers: GOP Plan Made More Sense

In 2000, a federal court ruled that the state was in violation of federal education law because it did not adequately fund ELL programs. The amount the state spent, the court said, was “arbitrary and capricious.”

Mr. Weiers said the amount of money the governor is asking for is more than then entire budget for the Department of Public Safety and twice the cost of running Northern Arizona University in Flagstaff. Nor, he said, does it meet the court’s requirements.

“Does $900 make it less capricious and arbitrary≠” he said. “It makes it more capricious and arbitrary.”

He said a Republican plan — H2718 — Ms. Napolitano vetoed in May would have allowed individual school districts to determine how much it cost to educate their ELL students. That approach makes more sense and is more fiscally responsible than the one-size-fits-all approach proffered by the governor, he said.

House Minority Leader Phil Lopes, D-27, said he does not believe the governor’s plan will violate what the court is requiring.

“There has to be sufficient money and I think the phrase ‘arbitrary and capricious’ is used because, historically, we’ve never given school districts sufficient money,” he said. “What the governor’s proposal does — we think — is sufficient, is adequate.”

Attorney Seeks To Withhold Highway Funds

Tim Hogan, executive director of the Arizona Center for Law in the Public Interest and the lawyer who sued the state in Flores, said he is supportive of the funding levels in Ms. Napolitano’s plan, as well as the accountability measures.

“This includes the kind of things I’ve been looking for all along,” he said, namely the removal of Group B weights and a statutory definition of how ELL money can be spent.

Mr. Hogan said he will return to court to ask a federal judge to withhold all of the state’s federal highway funding if Republicans and the Governor’s Office do not meet and make progress on a deal to satisfy the court.

No meetings are currently scheduled.

The state is currently in violation of a January court order to adopt a Flores plan by the end of the session. Republicans blame the governor for vetoing their plan and not allowing the judge to see it.

Mr. Lopes said he wants Republicans to seriously consider the governor’s proposal.

“I would hope the Republican leadership accepts it as a serious proposal and is willing to talk to her about changes in it and these talks are serious and the substance not being simply ways not to do this,” he said. —