The Arizona Republic
The political and legal battle over the state’s English learner program has gone from awkward and curious to truly bizarre.
This saga begins with a federal law that is Congress at its worst. The Equal Educational Opportunities Act provides, in relevant part, that educational agencies take “appropriate action to overcome language barriers that impede equal participation by its students in its instructional program.” No guidance as to what constitutes appropriate action, no funding and no penalties specified for not complying.
In 2000, a federal judge looking at only one school district in the state, Nogales, determined that the state wasn’t spending enough on English learner programs to comply with the federal law. The state, in a serious mistake, did not appeal this finding.
More recently, a different federal judge, Raner Collins, started fining the state for not remedying the alleged inadequacy.
Last week, the Legislature finally enacted something that can, in good faith, be argued to satisfy what the federal court has found in misapplying a federal statute that is more sentiment than prescriptive law.
In 2000, the state allocated an extra $150 per pupil to fund English acquisition programs. The Legislature has almost tripled that to $432. In addition, school districts could apply to a new grant program that would be established to cover any shortfalls schools may encounter in implementing the English immersion approach voters dictated, also in 2000.
Gov. Janet Napolitano has allowed this program to become law without her signature, but trashed it in a letter to legislative leaders.
It is one thing for Napolitano to say that the state should guarantee more than the Legislature provides in per pupil funding, or that the Legislature should demonstrate its commitment to the supplemental grant program by appropriating money. That’s the sort of thing budget fights are all about.
Napolitano, however, goes further and contends that the legislative program doesn’t meet the requirements of the federal court order. The logical corollary of that is that the judge should start reimposing the fines, which is a curious position for the governor of a state to take.
One of Napolitano’s legal contentions, that the funding provided in the legislative program is arbitrary and capricious, is frivolous. The funding in the legislative program is based upon demonstrated need to implement specific state models of English immersion. It’s the opposite of arbitrary and capricious.
The more serious contention is that the program violates the anti-supplanting provisions of various federal funding laws.
The legislative program does use certain federal funds to offset the additional state grants. But only those that can be used for English language acquisition and the English learners’ pro rata share of other federal funds.
Properly considered, the supplanting argument actually cuts in the opposite direction. If the state picks up all the cost of educating English learners, then their pro rata share of federal funds will be used for other students and purposes.
Moreover, this is supposedly a federal requirement. It seems a bit odd to argue that federal funds cannot be used to partially satisfy it. And it’s certainly odd for a governor to argue that a federal judge should force state taxpayers to pay more to meet a federal requirement.
Napolitano’s position has put Attorney General Terry Goddard in a real pickle. Thus far in this litigation, he has taken the position that the governor speaks for the state and he is her lawyer.
But Goddard, as attorney general, has a general obligation to defend the constitutionality and legality of state laws. The judge in this case has kept the issue of whether federal funds can be used open. Given that the judge considers this an open question, it would be strange if Goddard decided not to at least make the case on behalf of the law.
Goddard did comply with Napolitano’s wish to ask the judge to immediately disperse the fine money that has accumulated to English learners.
The sensible thing would be for Collins to let the legislative program become law and see how it works. But, of course, the sensible thing would have been for the federal court not to get into the business of micromanaging English learner acquisition programs in Arizona in the first place.
Robert Robb, an Arizona Republic columnist, writes about public policy and politics in Arizona. E-mail: firstname.lastname@example.org