TUCSON - Frustrated by a lack of resolution, a federal judge on Monday suggested he might have to jail the governor and legislative leaders to finally secure proper funding for students learning to speak English.
U.S. District Court Judge Raner Collins noted it has been more than five years since a now-retired predecessor found the state was not complying with federal laws to make sure all students learn English. And the state never followed his own January order to have a plan in place by now to help 185,000 Arizona school children who lack such language skills.
"So who would you jail?’’ the judge asked attorneys at a Monday hearing in Collins’ Tucson courtroom.
Attorney Jose Cardenas, hired to represent the state, and Tim Nelson, legal counsel to Gov. Janet Napolitano, both said the judge can’t incarcerate their clients.
And Tim Hogan, who represents parents who filed the successful lawsuit more than a decade ago, said the only way that might work would be to "put them all in the same jail cell . . . and they couldn’t come out until they solved this.’’
Instead, Hogan wants Collins to withhold $650 million a year in federal highway aid, saying that is the only way to get state officials to comply with a 2000 court order.
But Cardenas and Nelson argued the only way to break the impasse between Republican legislative leadership and the Democratic governor is for Collins to tell both sides what he wants. And Ronald Messerly, a lawyer representing construction companies that compete for state contracts, warned slashing road-building funds could put 25,000 people out of work.
Collins gave no indication Monday what he will do.
Another judge ruled in 2000 that additional state funding of $150 per pupil for students with limited English skills was "arbitrary and capricious,’’ with no bearing on actual cost. Lawmakers subsequently increased aid to school districts to the current figure of about $360 per pupil.
But that judge rejected the $360 figure in 2002 because it was not based on any data of the real cost. And when a deadline for a new study came and went last year, Collins, as the new judge on the case, said he wanted a funding plan in place by the end of this year’s legislative session.
The GOP-controlled Legislature did approve some additional funds for this year. But future dollars would have relied on each school district drafting a plan and asking the state for cash if they needed more. Napolitano vetoed that as inadequate and later responded with a more costly plan, one which legislative leaders have refused to discuss.
Cardenas said Napolitano and Republican leaders believe their own plans comply with the court order — and neither side will budge on possible compromises. He and Nelson asked the judge to review both plans and decide if either one would put the state into compliance.
But Hogan said that’s just more delay.
"That’s exactly why we need meaningful, powerful sanctions to break that impasse,’’ he told the judge.
Attorney Eric Bistrow, who represents State Superintendent of Public Instruction Tom Horne, separately urged Collins to ignore Hogan’s request for sanctions. He said it was improper for Hogan to urge Napolitano to veto the legislative plan, leaving the state with nothing to present to the judge.
But Nelson said Hogan’s letter only confirmed the governor’s own belief the legislative plan was insufficient.
In a related matter, Hogan also wants Collins to exempt about 10,000 seniors classified as "English language learners’’ from having to pass the AIMS test to graduate this spring.
Hogan said more than 80 percent of English language learners have failed to pass all three sections of the test required to get a diploma, versus about 26 percent statewide. Hogan said it’s not fair to penalize these students because the state has never properly funded English language programs.