On paper, the issue the U.S. Supreme Court will take up Monday is simple: should Arizona lawmakers be forced to spend hundreds of millions of dollars to comply with a judge’s ruling that they do more to ensure students learn English?
But what the court rules in the case that has been dragging through the legal system for the last 17 year is giving a host of outside groups a forum to push their own agendas. These range the debate on the merit of settling lawsuits with consent decrees to an attack on bilingual education as dividing the nation.
If nothing else, the decision due later this summer could redefine states’ rights versus federal authority.
Monday’s hearing follows rulings by a trial judge and the 9th U.S. Circuit Court of Appeals that Arizona is not complying with federal laws requiring states to “take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.”
Republican lawmakers and state School Superintendent Tom Horne contend the state is in compliance. They also argue the situation has changed since the 2000 ruling, making further judicial oversight unnecessary and illegal.
But Tim Hogan, representing the parents who sued, said the record shows otherwise.
Hogan wants the nation’s high court to note state officials actually signed a consent decree in 2000 agreeing to bring Arizona’s teaching into compliance with the law. He said that prevents lawmakers from trying to get the Supreme Court to overrule indirectly what they never challenged directly.
Efforts to fix the problem
It all started with a complaint in 1992 by several parents that their children, enrolled in Nogales public schools, were not getting the education they needed. They charged the state was not complying with the “appropriate action” requirement of the law.
The trial judge agreed, finding there were too many students in classrooms, not enough qualified teachers, inadequate tutoring programs and insufficient teaching materials.
Lawmakers subsequently enacted several changes affecting schools throughout the state, all of which judges have found lacking.
The most recent effort, a 2006 change in the law, found some favor with Judge Raner Collins for a possible solution. But he concluded — and appellate judges agreed — two provisions were illegal: limiting extra help for each student to no more than two years and requiring schools to first use other federal funds before getting additional state cash.
Horne and lawmakers decided to seek a Supreme Court review, not only over the two provisions, but the whole question of whether federal courts should butt out.
DISPUTE CENTERS ON MONEY
One threshold question is whether the problems still exist — and where.
When the complaint was filed, Miriam Flores, the child of one of the Nogales parents, was in grade school; she is now a student at the University of Arizona.
Attorneys for Horne and the Legislature say Nogales students are doing better because of prior changes, making further court intervention unnecessary. Those changes have put extra funding for students labeled “English language learners” at about $360 above basic state aid, compared to $150 when the lawsuit was filed.
Hogan said the record in Nogales shows otherwise. And he said there is evidence it takes an extra $1,600 for each English learner to do the job right.
With about 150,000 English learners in Arizona schools — close to one out of every eight students — that carries a price tag of close to a $250 million.
He also said Collins recognized the problem is not confined to a single community. Hogan said courts need to stay involved in the case until all students statewide have the opportunity to learn guaranteed in federal law.
From there, the issues become more legally complex.
Ken Starr, the nationally known lawyer hired by lawmakers at more than $900 an hour to argue the case, said Collins had no right to set deadlines for the state to come up with acceptable plans. Collins even imposed fines for delays, though those were overturned at the appellate level.
Hogan said fines are the only way to get the attention of the Republican-controlled Legislature.
OTHER GROUPS WEIGH IN
Outside groups have submitted their own legal theories to the high court.
The American Legislative Exchange Council, made up of state lawmakers from around the country who push free enterprise and states’ rights issues, wants the justices to halt further court oversight of Arizona’s programs. The organization’s lawyers say legislators need the flexibility to adjust to changing circumstances.
Attorneys for the Eagle Forum filed their own arguments saying bilingual education — which technically is not even an issue in this case — is dangerous for the country because it doesn’t force kids to become proficient in English.
That group’s legal brief even warns that 40 million people in this country who do not speak English could demand their own language be used for public business, eventually leading to schools that teach in their language and government operations in that language, too.
And the Washington Legal Foundation argued it is irrelevant that state officials entered into that consent decree in 2000 to fix the problems. Its lawyers say that the promises of prior public officials cannot bind those currently in office.
On the other side, attorneys for Tucson, Mesa, Sunnyside, Tempe Elementary and Phoenix Union school districts argued that Collins’ orders are not micromanagement of education policy. They said the judge simply told lawmakers when their prior efforts fell short and gave them deadlines to come back with new plans.
The Obama administration also is on Hogan’s side, with the acting solicitor general saying the evidence shows Arizona has not yet complied with federal law.
And even a group of individuals who describe themselves as “educational policy and finance scholars” filed their own legal papers arguing that adequate funding of programs is necessary to ensure students learn English.