A federal judge ruled April 26 a funding plan passed by the Legislature earlier this year to teach students English violates federal law on several counts and does not comply with previous court orders in a federal lawsuit.
Republican lawmakers, however, said they believe the judge is wrong and indicated they would appeal the ruling to the U.S. Supreme Court, if necessary. Further, they say the judge’s decision carries no weight at the moment because a federal appeals court is scheduled to hear an appeal on the judge’s earlier orders in July.
Judge Raner C. Collins wrote in his April 26 ruling that H2064 (Laws 2006, Chapter 4) “does not bare any rational relationship to the cost of providing an ELL [English Language Learner] program… and it has added new hurdles to the mix.”
Among those hurdles are requirements that school districts use federal education funding to offset the cost of teaching students English and limiting students to two years of extra funding if they aren’t proficient in English. Both of those requirements, Judge Collins wrote, are contrary to federal law.
“The [law] reminds district schools and charter schools they must adhere to all State and federal laws, but requires them, by using offsets, to violate federal law,” he wrote.
Noting that federal law requires states to teach the schoolchildren English, Senate President Ken Bennett, R-1, called the prohibition on using federal funds to do so “illogical and wrong.”
State Superintendent of Public Instruction Tom Horne, who supported H2064, said Judge Collins’ order “has no effect right now,” pending a decision by the 9th Circuit Court of Appeals on an appeal he filed earlier this year that challenges the judge’s decision to force the state to act or face fines.
Leaders plan appeal
House Speaker Jim Weiers, R-10, said he and Mr. Bennett would be meeting with attorneys and will likely file an appeal specifically aimed at the most recent ruling.
“We are starting on the appeals immediately,” he said on the House floor April 26.
Rep. Linda Lopez, D-29, said the unwillingness of Republicans to abide by the court’s decisions throughout the Flores v. State of Arizona case, which was originally filed in 1992, was difficult to comprehend.
“I don’t know how many times we have to be slapped in the face on this,” she said.
H2064 passed the House 31-27 on Feb. 27 and the Senate 16-13 on March 2. The following day, Ms. Napolitano announced she would let the bill pass into law without her signature.
The fines
When an ELL funding plan was not in place by Jan. 24, the court began fining the state for failing to comply with a December order. By the time the law was passed, the fines had accumulated to $21 million, which Judge Collins ruled in March could be used to supplement ELL programs this year.
It is uncertain whether the fines will be reinstated. Attorney Tim Hogan, who brought the lawsuit against the state, says he believes the last line of Judge Collins’ ruling, which refers the parties back to the December 2005 order, means the fines are adding up once again.
However, Republican leaders say the fines are on hold until the 9th Circuit hears the appeals of the judge’s earlier rulings.
The court’s decision came as no surprise to either Governor Napolitano or legislative Democrats, all of whom opposed H2064 as it moved through the Legislature. Ms. Lopez, assistant minority leader in the House, said she and others were convinced the legislation would not stand up to the court’s scrutiny.
“I hate to say, ‘I told you so,’ but, ‘I told you so,’” she said.
On the House floor, Rep. Pete Rios, D-23, blasted his Republican counterparts, saying they had to have expected the ruling to come down the way it did.
“I thought that you all just wanted to be convinced that it was a bad piece of legislation,” he said April 26.
Ms. Napolitano said the crux of the case isn’t which side is victorious.
“It’s easy to say, ‘Governor wins this round, you know, Legislature loses.’ I think that miscasts this problem,” she said. “This problem…is about how we get 160,000 Arizona children who don’t speak English to be able to read, write and speak English and be academically successful and economically competitive.”
The governor also said she expects the Legislature to address another solution to the lawsuit before the current session ends.
“I’m hopeful when we reconvene with legislative leadership this afternoon, we get past the typical ‘Oh, we’re going to appeal’ and all the chest-thumping that gets done…” she said.
Rep. Kyrsten Sinema, D-15, said the Legislature needs to act immediately because the judge’s ruling invalidated the state law.
“As of today,” she said in an April 26 floor speech, “there is no law on ELL in Arizona.”
However, Mr. Weiers said the law is still on the books because the appeals court granted a stay on the judge’s earlier orders so it could hear Mr. Horne’s appeal. He said the Legislature will fund ELL programs as directed in H2064.
“We’re not changing anything,” he said.
4th bill since May
H2064 was the fourth bill revamping the ELL system since last May; Ms. Napolitano vetoed the first three before letting H2064 pass into law without her signature.
That bill represented a departure from the previous iterations on several points, most notably in that it maintained a base level of per-student funding for ELL students and it did not contain provisions creating a tax-credit program to subsidize the cost of ELL students attending private schools.
However, it still retained the essence of the previous Republican plans: districts would be eligible for state ELL funding only if they could demonstrate a need after all other funding sources — state, federal or otherwise — were accounted for.
In order to qualify for additional state funding under H2064, school districts would have been required to implement an English immersion instruction model approved by the nine-member Arizona English Language Learners Task Force. The cost to the district of instituting the model would be offset by the $432 per-student funding; any federal funds designated for English instruction; and portions of the federal funds received for at-risk students and local tax levies for desegregation, prorated to the number of ELL students in the district.
Reporter Phil Riske contributed to this story.