Janet Napolitano’s Role in Flores v. Arizona

By Mary Ann Zehr — November 25, 2008 2 min read
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Arizona Governor Janet Napolitano has been a key figure in the long-standing controversy in Arizona over how to provide adequate funding for the education of English-language learners in the state. So when I heard that President-elect Barack Obama reportedly was picking her to head the U.S. Department of Homeland Security, I wondered what her absence in Arizona might mean for Flores v. Arizona, the federal lawsuit regarding funding for ELLs.

If Ms. Napolitano, a Democrat, leaves her post as governor, the next person in line for the job is Arizona’s secretary of state, Jan Brewer, who is a Republican.

Tom Horne, the superintendent of public instruction for Arizona, told me in a phone interview last week that having a Republican as governor of Arizona could mean that the governor might take his side in Flores. He’s been making the case to the federal courts that the federal government is overstepping its role in trying to tell Arizona that it’s not adequately funding education for ELLs. The level of funding should be a state decision, he contends. Right now, Arizona’s legislature is also fighting the plaintiffs, but the governor is not. If Ms. Napolitano is replaced as governor, “I might have the governor on my side for a change,” Mr. Horne said last week.

Timothy Hogan, the executive director of the Arizona Center for Law in the Public Interest and the lawyer for the plaintiffs in Flores v. Arizona, said if a new Arizona governor would decide to argue against the plaintiffs in the case, then he would have to listen to three sets of lawyers in court instead of the two sets he listens to now, one group representing Mr. Horne and another group representing the legislature. Ms. Napolitano has argued for more funding for ELLs than the legislature has been willing to appropriate. She and the legislature were once locked in a stalemate for months on how to come up with a plan to comply with the U.S. District Court’s ruling that the state’s funding for ELLs wasn’t adequate. Finally, Ms. Napolitano let a piece of legislation become law in 2006 without her signature so that the matter could proceed.

Other than perhaps having to listen to three sets of lawyers making arguments, Mr. Hogan said he can’t see that Ms. Napolitano’s leaving her post would have an impact on the Flores case.

On Friday, the U.S. District Court in Tucson completed 11 days of hearings for Flores over whether the $40 million in additional funding for ELLs authorized in the 2006 law is adequate, according to Mr. Hogan. He thinks the additional $40 million isn’t adequate funding. Mr. Horne and the legislature believe the amount is in compliance with the U.S. District Court’s order. Mr. Hogan told me this week that the U.S. district judge isn’t expected to make a decision based on the hearings before February. Readers, if you’ve seen any news coverage on the hearings, send me a link to it.

Mr. Horne and the legislature have asked the U.S. Supreme Court to review the Flores v. Arizona case. They both contend that the federal government has been overly aggressive in telling Arizona how it must pay for the education of ELLs.

A version of this news article first appeared in the Learning the Language blog.