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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.
鈥淎rizona needs this court鈥檚 help to return control over the funding of Arizona鈥檚 school programs to where it rightly belongs鈥攐ut of the hands of a single federal district court judge and back into the hands of Arizona鈥檚 democratically accountable officials,鈥� 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鈥檚 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 鈥渕andated special statewide funding legislation to benefit ELL鈥� students.
Two Federal Laws
In a sign of the political complexity of the Arizona case, the state鈥檚 attorney general, a Democrat, filed a brief urging the Supreme Court not to review the case, saying Arizona鈥檚 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鈥檚 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 鈥渢ake appropriate action to overcome language barriers that impede equal participation by its students in instructional programs.鈥�
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 鈥渁ppropriate action鈥� 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鈥檚 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鈥檚 ELL funding system remained irrational and in violation of the EEOA. In upholding the judge鈥檚 ruling last year, the 9th Circuit court said that 鈥渄espite considerable efforts, and some improvements in outcomes, Arizona, as a state, does not appear to have turned the corner on ELL education performance.鈥� (鈥淎rizona Still Grappling With Order on Adequate Funding for ELLs,鈥� 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.
鈥淚t is both unfair and irrational for the federal government, on one hand, to approve Arizona鈥檚 ell programs as effective under NCLB, but, on the other hand, to allow the federal judiciary to rule that Arizona has failed to take 鈥榓ppropriate action鈥� to assure effective ell programs under EEOA,鈥� says the brief filed on behalf of Mr. Horne.
The Washington Legal Foundation, a conservative legal group in the nation鈥檚 capital, filed a friend-of-the-court brief urging the justices to take up the case, arguing that the lower courts鈥� 鈥渋ntrusions鈥� into the state鈥檚 policies trampled 鈥渂edrock principles of separation of power and federalism.鈥�
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鈥檚 review, saying the case 鈥渉as spun out of control.鈥�
But a brief filed on behalf of the Nogales families said 鈥渢he Arizona legislature has spent the past eight years resisting compliance with the district court鈥檚 lawful order. In prodding the state toward compliance, the district court has repeatedly shown both deference and patience.鈥�
