As soon as he is finished drafting the motion, attorney Tim Hogan will ask a federal judge to terminate the highway funding appropriation Arizona received from the federal government because the state failed to meet a deadline to properly fund students learning English in public schools.

“I’m preparing it and next week is my objective,” he said in a July 27 interview. “I’ll file when I’m done with it. I’m anxious to get it filed because time’s wasting away.”

All of the details have not been finalized, but Mr. Hogan, the executive director of the Arizona Center for Law in the Public Interest, said he would definitely ask the judge to withhold the highway monies. Other possible sanctions were still being discussed, he said, though no further decisions had been made.

“I’m just trying to figure out a way to get this done,” he said. “So far, I haven’t come up with a better idea.

“I’m pretty sure [removing] federal highway funds would get their attention.”

Mr. Hogan did say there would probably be no request for daily fines, as the amount would have to be “staggering” in order to convince lawmakers to act on the issue as soon as possible.

**Judge Issued Order In January***

In January, a judge issued an order that the state needed to submit a funding proposal to resolve the ~Flores v. Arizona~ lawsuit by the end of the legislative session. House and Senate Republicans drafted a plan and pushed it through on the final day of the session, but Governor Napolitano vetoed it a week later, saying it was not acceptable because it did not receive bipartisan support.

Mr. Hogan has said in the past that he asked the governor to veto the Republican plan because he believes it would not have met the requirements of the court.

The state is in violation of a court order for not delivering a proposal to the court. After Mr. Hogan files the motion, the state would have a short period of time to file a response, a spokeswoman from the Attorney General’s Office said, though she was unsure how long the state would have to prepare its response. The judge would then rule on the motion.

“I don’t think any of us want to predict what the judge would do,” said Andrea Esquer, spokeswoman for the AG’s Office.

***Some History***

In 2000, a federal court ruled that the state had violated the Equal Education Opportunity Act by not giving non-English-speaking students the same opportunity for learning because programs to teach them English were underfunded.

There is no precedent for withholding federal funds for violating a federal law, Mr. Hogan said, but he says it is as viable a solution as any.

“Why not≠” he wondered. “They’re violating federal law but are continuing to receive the benefits of the federal relationship.”

***Rep. Biggs: No Surprise***

Rep. Andy Biggs, R-22, has been critical of the ~Flores~ suit and Mr. Hogan’s attempts to get the state to act as he sees fit.

“This is Tim Hogan once again trying to control the future of the state through an unelected federal judge,” he said, “and that’s really a shame, because it’s the U.S. Congress that appropriates federal monies…

“It’s not surprising that he’s doing this.”

Mr. Biggs, a retired lawyer, said a federal court has no jurisdiction over federal appropriations and said it would be “a real stretch” for a judge to come to the opposite conclusion.

He said it is “very unlikely” that the judge would rule against the state in this case but, if that happens, Congress would probably ignore the ruling and continue to appropriate highway money to Arizona.