Ninth Circuit refuses to reconsider its ruling in Arizona’s ELL funding suit
Next stop in the legal battle over the state's English-learner program: The U.S. Supreme Court. State Superintendent of Public Instruction Tom Horne said that in the wake of a denial from the 9th U.S. Circuit Court of Appeals, he intends to take the case to the nation's top court. "Fundamentally, there's an issue of principle involved," Horne said. It boils down to who should control the state's programs for teaching English to non-native speakers: The people, through their elected officials, or a judge, Horne said. His comments came as the Appeals Court on Thursday denied state officials' request to reconsider its February ruling against the state's English-learner program. Horne, along with Republican legislative leaders, had asked the Appeals Court for an en banc review, in which a bigger appeals panel would review the case. The 9th Circuit's denial came with a footnote: Lawmakers should not rely on a portion of federal law that they had argued would allow them to count federal dollars toward their obligation to pay for a new, intensive English-language program for non-native speakers. Horne said that he and lawmakers had decided some time ago to take their case to the U.S. Supreme Court, if necessary. They have received a commitment from former federal special prosecutor Ken Starr to help handle the case. The state officials have 90 days in which to file their request. The Ninth Circuit’s February ruling agreed with U.S. District Judge Raner Collins' ruling that the English-learner program was deficient and did not meet U.S. equal-education-opportunity laws. Specifically, Collins has criticized the state plan for its two-year time limit and for its plan to count federal dollars toward the new language program.
Source: Arizona Republic, 4/18/08, By Mary Jo Pitzl
[Editor’s Note: The order by the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, GU, MP) denying the petition for rehearing is below. The order amended the court’s own February 22, 2008 opinion to make clear that the three-judge panel rejects the state’s argument that a provision in the No Child Left Behind Act (NCLB) excuses the state from complying with the Equal Educational Opportunity Act’s (EEOA) prohibition on weighing federal funds against the state’s obligation to make financial contributions—in other words, on using federal funding to “supplant rather than supplement” state contributions. Background on the case, including summaries of past court rulings, is available starting with the news of the latest legislative move at second link.]
Order in Flores v. Arizona
NSBA School Law pages on latest ELL legislation