the legal beat
Language Barriers
Arizonans battle federal court order to spend more
BY JOSHUA DUNN AND MARTHA DERTHICK
Once past the long, agonizing upheaval of school desegregation, the states and their education departments by and large have bent to the federal will. But what happens when they don’t? What if instead they see a federal judicial order as a threat to be resisted? Legislative leaders and the twice-elected
state superintendent of schools in Aricanceled the fines. He has also hinted at In Flores v. Arizona, the zona are putting these questions to the jail sentences, which presumably would test in a long-running lawsuit. In Flocentral issue is how much fall on the Speaker of the Arizona House res v. Arizona, the central issue is how and the president of the Senate, who are the state must spend for much the state must spend for English intervenors in the suit, and the superlanguage learners (ELL) beyond a basic English language learners intendent, who is a named defendant. grant to school districts. This is a heated Judge Collins found an ELL law issue in a state on the Mexican border (ELL) beyond a basic grant enacted by the legislature in 2006 withwith a large immigrant population and out the governor’s signature to be inadto school districts. a Republican party that gave the counequate, but the Ninth Circuit instructed try Barry Goldwater. him to hold an evidentiary hearing to Flores v. Arizona was filed in 1992, a class action brought by determine whether the original court order was still valid. The an advocacy law firm on behalf of parents in the town of intervenors argued that changes of fact (increases in general eduNogales. The suit rested on the Equal Educational Opportunication spending) and in law (enactment of No Child Left ties Act of 1974, which provides that no state shall fail “to take Behind) made the original order obsolete and asked to be appropriate action to overcome language barriers that impede relieved from judgment. Collins ruled against them and was equal participation...in its instructional programs.” In 2000, a upheld in 2008 by the Ninth Circuit. federal district judge ruled that Arizona was violating this relUnder threat again of fines, the legislature approved an atively obscure law, both by not spending enough on its Lau proadditional $40.6 million for ELL in April 2008, and again the grams—a reference to a Supreme Court decision of 1974 and governor let the bill become law without her signature. Disregulations of the federal Office for Civil Rights—and by failtricts were instructed to use model plans developed by the ing to provide enough teachers, aides, classrooms, materials, and state department of education, which called for four hours tutoring. Eight years later, Arizona is spending $430 extra per a day of intensive English instruction. This directive caused ELL student per year, but has not satisfied the court. Rather, the trouble on the local front, in districts that resisted the four legislature challenged the court with a law that would have put hours of immersion or were disappointed with the allocaa two-year cap on extra spending for any individual ELL stution formula. A Tucson-area district, Sahuarita, announced dent and use federal funds in place of some state funds. that it would defy the state law, stating that federal civil Arizona did not appeal the judgment and signed a consent rights laws are trump. decree that addressed matters other than spending. The spendThe issue headed, once again, to Collins’s court, with a ing issue festered as the politics grew more problematic. In 2000 renewed demand from the Flores plaintiffs for more money. Tom the electorate approved a ballot initiative that abolished bilinHorne, the outspoken state superintendent, protested that “we gual education and replaced it with English immersion. Janet don’t need an aristocracy of federal judges ruling over us.” Napolitano, a Democrat who was elected governor in 2002 and Horne and the legislative leaders have demonstrated, if nothreelected in 2006, has battled with Republican state legislators ing else, that determined opponents of the “judicial aristocracy” over what to do. can buy a lot of time, and probably avoid going to jail. Judge Raner Collins has twice found the state to be in civil contempt. Early in 2006, he imposed a fine of $500,000 per day, Joshua Dunn is assistant professor of political science at the to be held in a fund dedicated to ELL instruction. A total of $21 University of Colorado–Colorado Springs. million was collected from the state, but the Ninth Circuit Martha Derthick is professor emerita of government at the appeals court ruled that Collins had exceeded his authority and University of Virginia.
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