Briefs in a federal lawsuit over how the state funds programs to teach students English have been filed in federal appeals court in advance of a hearing next month.
In a June 7 filing with the Ninth Circuit Court of Appeals in San Francisco, public interest attorney Tim Hogan argued that, not only does the basis of the appeal not pass judicial muster, State Superintendent of Public Instruction Tom Horne, who filed the appeal in March, has no standing in the case.
Mr. Horne is appealing a lower federal court’s ruling that English language learner, or ELL, students do not have to pass the AIMS test to graduate from high school because the state has failed to comply with a 2000 judgment in the Flores v. State of Arizona lawsuit. He is also challenging the distribution of $21 million in fines imposed on the state as sanctions and says the court had no right to allocate those fines to fund ELL programs.
Mr. Hogan wrote that Mr. Horne does not meet the standards of Article III of the U.S. Constitution and, despite his office being named in the lawsuit, he “has no more protectible interest in maintaining the AIMS test as a graduation requirement than any other citizen in the State of Arizona” because the test exists as a matter of state law, independently of Mr. Horne’s actions.
Defendants v. codefendants
He argues that the state was the only defendant that met those criteria and the state, under the attorney general, opted not to challenge fines levied on the state by a District Court for failing to meet a court-ordered deadline to comply with an earlier ruling.
However, Mr. Horne responded in a June 21 filing that a defendant can appeal, even if his codefendants choose not to.
“Merely because one defendant, who is primarily liable, does not appeal, another co-defendant that is secondarily liable still has sufficient standing to appeal,” attorney Eric Bistrow wrote. “Indeed, a co-defendant has an absolute right to challenge an injunction that adversely affects his interest.”
Mr. Horne also argues the merits of his appeal, saying the lower court’s ruling on the AIMS test was inappropriate because it was made with no factual basis. He says the court was aware of “major modifications in the funding” since 2000 and that no evidence was presented supporting the contention that “the huge increases in funding provided by the state and federal government… are currently inadequate to fund ELL programs.”
“For the District Court to claim, with no record, that funding was now inadequate was to indulge in judicial imagination,” he wrote.
Mr. Hogan, though, argued in his filing that the superintendent was allowed to introduce every piece of evidence he thought relevant into the record for the court to consider. The court’s order, he contends, did not need to be based on evidence because it was a matter of law.
“By definition, the state’s failure to comply with [federal education law] over the last six and a half years is a denial of [fair education] for ELL students,” he wrote. “It was based on that denial of opportunity that [I] sought to protect ELLs from a test for which the state refused to prepare them.”