Court suggests parties in Arizona's battle over English-language instruction try mediation
Warring factions in Arizona’s legal battle over English-language instruction went to court looking for resolution―and got a suggestion that they hold their own peace talks on the controversial matter. Johnnie B. Rawlinson, a Circuit Court judge with the 9th U.S. Circuit Court of Appeals asked if any of the parties had tried mediation. “It seems like the state is feeding on itself,” she observed, noting that state officials and lawmakers are at odds over how to meet federal equal-opportunity requirements for English instruction. The issue has been tied up in court for more than 15 years. No, she was told, mediation is one consideration that hasn't been entertained in the long-running Flores vs. Arizona case. Attorney Tim Hogan, representing the estimated 140,000 Arizona students classified as “English-language learners,” said he would be amenable to mediation. He told the three-judge panel he wants to see the lawsuit resolved, and noted that he had made a settlement offer to lawmakers early this year that was rejected. But, Hogan said, there are philosophical, financial and political barriers to convening a mediation conference. Attorney Jose Cardenas, representing Gov. Janet Napolitano and the state Board of Education, said he imagined the governor would be open to mediation if there were a reasonable chance of success.
State officials are divided, even though technically, they are on the same side of the case because they're named as defendants. Gov. Napolitano split from state Superintendent of Public Instruction Tom Horne's defense that the state had made great strides in educating students struggling to learn English and, therefore, the lawsuit should be dismissed. Instead, although she is a defendant, she hired her own attorney and effectively joined Hogan in arguing for further contributions from the state. Meanwhile, legislative leaders hired their own attorneys and joined the lawsuit, adding their voices to Horne's defense. Attorneys for those defendants had no immediate sense of whether mediation was a possibility. Even if they did, there's the likelihood that legislative leaders would be unable to guarantee a majority of lawmakers would follow them. “What we need is a prompt ruling from this court,” Mr. Cardenas said.
Attorney David Cantelme, representing Senate President Tim Bee and House Speaker Jim Weiers, told the court that Arizona education has come a long way since 2000, when a federal judge ruled that the state's plan to pay for such instruction was “arbitrary and capricious.” The judges pressed him, however, to point to a dollar figure that represents adequate funding. “No one has a complete, accurate estimate in the record,” he said. And that's because success is judged by results, not by funding levels. Attorney Rick Bistrow, representing Horne, argued that the No Child Left Behind (NCLB) act is proof that Arizona schools such as the Nogales district are providing an equitable education. Nogales met the federal standards, and, by implication, that indicates students are getting enough funding to learn English, he said. Hogan argued that simply taking instruction money out of maintenance-and-operations budgets won't meet the federal standard of providing equitable education opportunities. He pressed his case that the state needs to put more money into a program that targets English-language learners.
Before Tuesday's arguments, House Speaker Weiers said he was confident the state would prevail, since he believed the facts show improvement in language instruction even without big infusions of money. But lawmakers are also readying themselves for a prolonged legal battle, lining up former special prosecutor Ken Starr to help argue their case before the U.S. Supreme Court, if it comes to that. It is widely believed that whichever side loses its arguments before the Appeals Court will try to convince the nation's highest court to take it on.
Arizona Republic By Mary Jo Pitzl
[Editor’s Note: For background on the suit, see below.]
NSBA School Law pages on Arizona English language learner lawsuit