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Published in Print: March 5, 2008, as Arizona Still Grappling With Order on Adequate Funding for ELLs

Arizona Still Grappling With Order on Adequate Funding for ELLs

Recent federal appeals court ruling in Flores case puts lawmakers on the spot.

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Arizona legislators made little headway last week on agreeing how to adequately pay for the education of English-language learners, despite a Feb. 22 ruling by a federal appeals court panel that upheld a decision by a lower court to require such a plan.

The lower court, the U.S. District Court in Tucson, had given the legislature until this week to find a solution for funding ELL programs.

“Right now, the attorneys [of the legislature] are looking at whether to appeal the ruling” of the three-judge panel upholding that deadline, said Barrett Marson, the director of communications for James P. Weiers, a Republican and the speaker of the Arizona House of Representatives, said in an interview last week. Mr. Weiers had intervened in the case to back the state’s appeal to the U.S. Court of Appeals for the 9th Circuit, in San Francisco.

Mr. Marson said the legislature is considering appealing the Feb. 22 ruling by a three-judge panel to the full 9th Circuit court or to the U.S. Supreme Court. But that stance already is drawing criticism.

“I think my Republican colleagues are watching the clock go by,” said Jorge Garcia, a Democrat and the assistant minority leader of the Arizona Senate. “They decided to spend the money on the attorneys for the court rather than on the kids.”

In its 91-page rulingRequires Adobe Acrobat Reader, the appeals court panel unanimously stood by Judge Collin C. Raner’s decision last March that an Arizona law passed in 2006 concerning instruction for ELLs wasn’t acceptable.

The appellate ruling is the latest stemming from the 15-year-old Flores v. Arizona federal court case, a class action arguing that English-language learners in Arizona receive poor quality schooling. In 1992, the plaintiffs cited the federal Equal Educational Opportunity Act of 1974 to argue that the state was providing inadequate funds for ELLs.

The federal district court agreed in a 2000 ruling. At that point, the state was giving schools $340 in additional funds for each English-learner. The 2006 law intended to address that ruling increases the amount to $450 per student.

In the recent appeal, the legislature and Arizona Superintendent of Public Instruction Tom C. Horne, who is a defendant, argued that because the state complies with the federal No Child Left Behind Act on English-language learners, it also complies with the older federal statute.

The EEOA requires “reasonable efforts to get non-English speakers to learn English,” Mr. Horne said in an interview last week. He noted that the NCLB law requires schools to meet specific benchmarks for ELLs. “How can you be meeting those benchmarks and not be making reasonable efforts?” he asked.

But the appeals court panel said the superintendent and the legislative intervenors failed to appreciate the distinctions between the EEOA and the NCLB law.

“The first is an equality-based civil rights statute, while the second is a program for overall, gradual school improvement. Compliance with the latter may well not satisfy the former,” the ruling says.

Legislative Clash

That 2006 Arizona law at the heart of the most recent ruling was approved after a stalemate between Gov. Janet Napolitano, a Democrat, and the Republican-controlled legislature regarding how much money the state should provide for ELLs.

“She allowed it to become law so it could get into court and we could get something done,” said Jeanine L’Ecuyer, a spokeswoman for the governor, last week. “The ball is in the legislature’s court, and the [federal] court drew the legislature’s playbook.”

The appeals court found two problems with the state law: a two-year limit for the amount of time that an English-language learner can benefit from state funds for specialized instruction, and a provision that lets school districts use federal funds to supplant state funds for financing programs for ELLs.

Mr. Marson indicated that the legislature should be able to deal with those two problems without much trouble.

But Timothy M. Hogan, the executive director for the Arizona Center for Law in the Public Interest and the lawyer for the plaintiffs in Flores v. Arizona, disagrees. He interprets the appeals court’s ruling as saying that the Arizona legislature must solve the “overarching problem” of how to pay for the education of ELLs.

Peter Zamora, the Washington counsel for the Mexican American Legal Defense and Educational Fund, said he agrees with the appeals court.

“Arizona should stop wasting money on legal fees and arguing against appropriate funding for ELLs. Arizona should start using its funds in the classroom,” he said.

Vol. 27, Issue 26, Pages 16-17

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