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Published in Print: January 9, 2009, as Supreme Court to Hear Case on ELL Funding in Arizona
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Supreme Court to Hear Case on ELL Funding in Arizona

Long-Running Dispute Involves Two School Laws, Questions of Federalism

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The U.S. Supreme Court has agreed to step into a long-running lawsuit in Arizona over funding for services to English-language learners, in a case that also raises questions of federalism and the interplay between two federal education laws.

The justices accepted appeals from legislative leaders and the state schools superintendent of lower-court rulings that Arizona was not adequately funding English-language-learner programs under a little-known 1974 federal law that requires states to act to help students overcome language barriers.

A federal district judge at one point ordered the state legislature to increase funding for such programs or else face fines of as much as $2 million per day, although a federal appeals court tossed aside the sanctions. But the appeals court last year upheld a ruling by the judge finding that a 2006 state law that increased funding for ell students was inadequate.

The Supreme Court on Jan. 9 granted review and ordered an expedited briefing schedule for the appeals, Horne v. Flores and Speaker of the Arizona House of Representatives v. Flores (Cases No. 08-289 and 08-294), indicating that the justices intend to hear arguments by April and decide the case by the end of their term in late June.

"Arizona needs this court's help to return control over the funding of Arizona's school programs to where it rightly belongs—out of the hands of a single federal district court judge and back into the hands of Arizona's democratically accountable officials," said an appeal co-written by Kenneth W. Starr, a former U.S. solicitor general and independent counsel, on behalf of the legislative leaders, who are Republican.

A separate appeal on behalf of Thomas C. Horne, the state's superintendent of public instruction, argues that it was the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that went too far last year when it "mandated special statewide funding legislation to benefit ELL" students.

Two Federal Laws

In a sign of the political complexity of the Arizona case, the state's attorney general, a Democrat, filed a brief urging the Supreme Court not to review the case, saying Arizona's unique situation made the case unsuitable for a national precedent on the effects of federal education laws on instruction for English-language learners. Gov. Janet Napolitano, a Democrat who is President Barack Obama's choice to become secretary of the Department of Homeland Security, battled the legislature and sought more funding for ell students as the case proceeded.

Under the Equal Educational Opportunities Act of 1974, each state must "take appropriate action to overcome language barriers that impede equal participation by its students in instructional programs."

In a class action brought in 1992 by families in Nogales, Ariz., a federal district judge in Arizona ruled in 2000 that the state had violated the "appropriate action" language of the EEOA by failing to provide adequate funding for its ell instructional methods.

U.S. District Judge Raner C. Collins of Tucson ruled in 2007 that the 2006 law passed by the state legislature that increased per-pupil ELL funding and made other changes to the state's program did not go far enough. The state law increased a per-pupil extra amount for English-language learners to $444 from $365, and authorized school districts to seek additional funding for such students. But the law effectively supplanted certain federal funds, and it cut off the majority of state ell money for any student who remained classified as an English-language learner for more than two years.

That led Judge Collins to conclude that the state's ELL funding system remained irrational and in violation of the EEOA. In upholding the judge's ruling last year, the 9th Circuit court said that "despite considerable efforts, and some improvements in outcomes, Arizona, as a state, does not appear to have turned the corner on ELL education performance." ("Arizona Still Grappling With Order on Adequate Funding for ELLs," March 5, 2008.)

NCLB Questions

In their separate appeals, the state legislative leaders and Mr. Horne argue that the federal No Child Left Behind Act, with its extensive requirements for the states on English-language learners, should trump the 1974 law.

"It is both unfair and irrational for the federal government, on one hand, to approve Arizona's ell programs as effective under NCLB, but, on the other hand, to allow the federal judiciary to rule that Arizona has failed to take 'appropriate action' to assure effective ell programs under EEOA,' says the brief filed on behalf of Mr. Horne.

The Washington Legal Foundation, a conservative legal group in the nation's capital, filed a friend-of-the-court brief urging the justices to take up the case, arguing that the lower courts' "intrusions" into the state's policies trampled "bedrock principles of separation of power and federalism."

The American Legislative Exchange Council, a Washington-based group representing some 2,000 right-leaning state legislators nationwide, also filed a brief urging the court's review, saying the case "has spun out of control."

But a brief filed on behalf of the Nogales families said "the Arizona legislature has spent the past eight years resisting compliance with the district court's lawful order. In prodding the state toward compliance, the district court has repeatedly shown both deference and patience."

Vol. 28, Issue 18, Pages 20-21

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