Tucson Citizen November 5, 2007

HEADLINE: Az lawmakers seek reversal of ruling on English learners

PHOENIX - With potentially high stakes for Arizona taxpayers and thousands of predominantly Hispanic students, a federal appeals court is being asked to decide whether the state has done enough to improve school programs for students learning English.

Lawyers for Republican legislative leaders are asking the 9th U.S. Circuit of Appeals to overturn a trial judge's ruling last March that changes made to Arizona's English Language Learning programs and funding don't satisfy a 1974 federal mandate for equal educational opportunities for English-learning students.

The appeal cites changes made under a 2006 law that set the state on a course to require districts to pick and choose among a menu of state-drafted instruction models and get supplemental state funds depending on the district's costs.

A key issue in arguments scheduled Dec. 4 by the San Francisco-based appellate court is whether a since-retired judge's 2000 ruling that Arizona's programs and funding were inadequate still is valid in the wake of the federal No Child Left Behind school accountability law and other developments that changed the education landscape in Arizona since 2000.

Also being contested is whether the case applies statewide or only to conditions in Nogales, a southern Arizona border town whose school district was the basis for the 1992 class-action lawsuit.

The Nogales district has approximately 6,000 students, predominantly Hispanic. Arizona's more than 1 million public school students include approximately 135,000 English-learning students.

If the appeal is denied, the state could face contempt-of-court fines if it doesn't substantially increase state funding for ELL programs at a cost that some have estimated could exceed $200 million annually. The March 4 deadline falls about only seven weeks into the 2008 legislative session, and lawmakers would be hard-pressed to resolve the issue that quickly, particularly in the face of a developing budget deficit.

A ruling the other way would allow full implementation of the 2006 law and allow lawmakers to step back from an issue that's bedeviled them for years. It's not yet known how much its changes will cost because those will vary by school district.

Though the case is now 15 years old, the starting point for the current appeal is U.S. District Judge Raner C. Collins' March 22 ruling that the 2006 law still doesn't provide adequate funding and violates federal law in several respects.

The Legislature missed a deadline that Collins set for action by the end of the 2007 legislative session last June, and Collins said in an Oct. 11 order that he will impose sanctions if the state fails to adequately fund the programs by March 4.

Republican legislative leaders' appeal argues that Nogales has improved its ELL programs, now providing appropriate class sizes, qualified teachers, adequate instructional material and a functioning tutoring program.

Also, the state has increased its funding for districts' ELL programs, instituted standards, provided districts with coaching assistance and monitors their performance, the appeal argues.

However, an underlying issue is that Collins has missed the fundamental point that federal courts' previous approach for enforcing the 1974 mandate with a cost-study approach is obsolete with the enactment of No Child Left Behind, the appeal said.

The 2006 state law will tailor funding to districts according to their specific needs, not by a blanket funding increase, the appeal stated.

Lawyers for the lawsuit plaintiffs said the state's funding system remains arbitrary and capricious, bearing no relation to actual funding needed so ELL students can master academic standards.

No Child Left Behind didn't erase the state's duty to fund ELL programs without violating federal law by requiring districts to lose state dollars by the amount of the their federal funding, the plaintiffs' lawyers argued.