Gov. Janet Napolitano has broken the legislative stalemate over how to pay for the education of English-language learners in Arizona.
The governor decided to let a bill spelling out how to finance English-acquisition programs become law without her signature, essentially thrusting the issue back into the hands of a federal judge.
“After nine months of meetings and three vetoes, it is time to take this matter to a federal judge,” the governor wrote in a March 3 letter to the legislature, explaining her decision.
On the same day, at Ms. Napolitano’s request, state Attorney General Terry Goddard filed a motion in the U.S. District Court in Phoenix, asking the court to speed up its decision on whether the measure satisfies its earlier rulings. Last week, U.S. District Judge Raner C. Collins scheduled a hearing for April 3 on the adequacy of the legislation.
In December, Judge Collins had given the state until Jan. 24 to find a way to finance programs adequately for the state’s 150,000 English-language learners, or be hit with hefty fines. The ruling was one of many in the 14-year-old lawsuit, Flores v. Arizona, concerning the education of Arizona’s English-language learners.
Fines Piling Up
While the Republican-controlled legislature and the governor, a Democrat, failed to agree on a plan during the current legislative session, the state accrued $21 million in court-imposed fines. Fines began at $500,000 a day on Jan. 24, increased to $1 million a day on Feb. 23, and have the potential to rise to $2 million a day at the end of the legislative session this spring.
Sen. Ken Bennett, a Republican and the president of the state Senate, said he believes the new law for English-learners will satisfy the court.
“It has reasonable and fair mechanisms for districts to be reimbursed on actual costs” for educating such students, he said. The legislature responded, Mr. Bennett contended, to the fundamental flaw the court had identified in the funding system: The system was “arbitrary and capricious.”
The measure became law March 9 but won’t take effect until 90 days after the close of the legislative session. It will increase the state’s extra funding to school districts per English-language learner from the current $355 to at least $432. It will limit that base aid for an individual English-learner to two years, but provide an additional sum of $10 million that districts can use for students who still need extra help after that time.
The legislation also will set up a task force to identify model programs. Once the models are selected, schools can request additional state money to carry them out, after proving actual costs and first using a proportion of federal funds available for ELL students.
Further Delay Feared
Timothy M. Hogan, the executive director of the Arizona Center for Law in the Public Interest and the lawyer representing the plaintiffs in Flores v. Arizona, says he wishes the governor would have vetoed the latest bill because it doesn’t provide enough money.
“I think if she had vetoed it—and with the accumulating fines—there’s a point in which the fines would have brought the legislature back to the negotiating table,” he said.
Negotiations outside of court, Mr. Hogan said, might have been more meaningful for establishing a structure for paying for ELL programs than within the court.
“What concerns me is the time,” he said. “These kids have gone long enough without getting the programs they need. I’m concerned that going back to the court process raises the potential for further delays.”
Identifying Models
Mr. Hogan believes the two-year cap that the legislation places on funding for English-language learners violates federal civil rights laws. He argued that it is also a violation of federal law to supplant state aid with federal funds.
But Mr. Bennett and Tom Horne, the state superintendent of public instruction, maintained that the law meets state and federal laws. Mr. Horne plans to file a brief in the federal court supporting it.
Mr. Horne, a Republican, particularly likes how the law will provide money for increased monitoring of programs for English-learners and set up a task force to identify model programs.
“The court has been calling for a number of years for a scientific basis for determining the amount to be spent on English-language learners,” he said. “Simply increasing the amount is not sufficient if there is no scientific basis to determine that.”
According to Mr. Horne, the new measure sets up a structure for determining costs. “When the schools show how they comport with the model, they have to show how much that will cost, how much they have available, and how much they will need,” he said. “There’s nothing more scientific than going out and seeing what the facts are.”
Gov. Napolitano wrote in her March 3 letter that while she decided to let the measure become law, “I do not believe this bill meets either the court’s multiple orders or our existing consent decree.”
