New Law May Break Long Deadlock in Arizona's ELL Court Case

By Sarah Auerbach, ELL Outlook™ Staff Writer
Arizona March 3, 2006

Miriam Flores was the little girl who in 1992 became the center of the landmark Flores v. Arizona lawsuit that has forced the state to reform how it teaches students learning English. As an 8-year-old child growing up in Nogales and speaking Spanish at home, she struggled to keep up with fellow students when her bilingual classes ended in the third grade. The Arizona Center for Law in the Public Interest sued the state on her behalf, and over the course of a decade her case won the support of the courts.

Miriam Flores is now a 19-year-old nursing student at the University of Arizona, but her lawsuit is still not settled. Late last year, a federal judge ruled that Arizona was still not adequately funding programs for its more than 154,000 English language learners (ELLs). The judge told the state's lawmakers that unless they solved the problem by January 24, 2006, he would fine the state $500,000 a day, a fine that would grow to $1 million after 30 days, and eventually $2 million a day if the legislature adjourned without a plan. Since then, the Republican-dominated legislature has been fighting with Democratic governor Janet Napolitano over how to meet the judge's demands, incurring fines that reached $21 million as of the beginning of March. Now a new piece of legislation, which became law on March 3, may break the deadlock.

During the past three months, the two sides have brawled over a number of issues. The biggest is how funds should be allocated to schools. Napolitano and Democratic lawmakers want schools to be awarded funds based strictly on the number of English language learners in each district, which is the formula currently in place. Napolitano initially proposed that funding per student be tripled, from $355 to $1,200 per student. By contrast, Republicans want school districts to apply for grants, demonstrating specific need for the funds. Republicans have already passed three bills-all of which met with Napolitano's veto-that would have required districts to apply for state monies after first exhausting federal and local dollars.

The new law represents a compromise of sorts, since it would increase per-student funding 22% next year, from $355 to $432 per student. For additional dollars, districts would have to first use federal and local funds, and then request grant monies. To win the grants, schools must follow instructional models developed by a Department of Education-based task force that the law creates. Students must move through the model programs in two years, after which time funds are cut off.

Some Republicans have criticized the new law because it sets no limit on the total state cost of funding ELLs through grants. Meanwhile, Democrats say that students need more than two years to master English.

Even though the law is a compromise between the two positions, it does not appease Napolitano, who had wanted at least $667 per ELL. As a result, she declined to sign the law, an alternative to vetoing that will send it back to the court system for evaluation. It will be reviewed by U.S. District Court Judge Raner Collins, the judge who in December 2005 ordered politicians to remedy the system or face fines. The law goes to Collins' bench accompanied by a letter from Napolitano stating her objections: Not only does she think the law underfunds education, she also believes that requiring districts to use federal funds before they apply for state monies violates federal law. She calls the funding level "arbitrary"-a characterization that, if true, could cause the law to be rejected by Collins. She also says that because the law moves students through programs in two years regardless of their progress, it fails to ensure academic accountability or program effectiveness, two other court requirements. Finally, she criticizes the task force that the law creates, calling it "unwise creation of a new bureaucracy and excess paperwork." Republicans say that Napolitano's letter to the judge undermines their compromise and invites court rejection.

This isn't the first such accusation Republicans have leveled at the governor. The icy political relationship between Napolitano and the Republican-controlled legislature has slowed resolution of the Flores case. In feuds unrelated to the current controversy, Republicans have accused Napolitano of going back on her word last year after agreeing to sign a corporate tuition tax-credit bill and have challenged the constitutionality of her line-item veto power. In the current arena, they say she overreached her authority by vetoing their ELL bills, depriving the judge in Flores v. Arizona of his prerogative to decide whether the legislative solution is adequate. Some, like State Rep. Bill Konopnicki of Safford, also feel that the judge handed Napolitano an undeserved political victory when he imposed the fines on the state, since the fines stood to far exceed the amount of funding that Napolitano's proposals advocated. Napolitano has, in fact, asked the judge to give the fines, $140 per student, directly to schools for English language learning. [Editor's Note: On March 17, Judge Collins granted the state's motion to distribute the $21 million in fines to Arizona schools on a per-student basis. On March 21, Superintendent Horne filed a motion to stay the distribution of the money until the status of the ELL funding legislation is resolved. A hearing on the new funding law is scheduled for April 3.]

Tim Hogan deplores the political wrestling match as well as its most recent outcome. Hogan, executive director of the Arizona Center for the Law in the Public Interest and the lawyer who has taken up Miriam Flores' cause, dislikes the provision that requires districts to exhaust federal funds and apply for additional funds. He says it's illegal because it puts the onus on the district when the court has explicitly stated that funding schools adequately is a state responsibility. But above all, Hogan believes the promised funding is just plain inadequate. "Based on all the cost data I've reviewed over the last six years, we need to be spending four times what we're spending," he says, pointing to a cost study by the National Conference of State Legislatures (NCSL) submitted to the Arizona legislature early in 2005, which recommended an increase of $670 per ELL student. "I think the cost study is an important guidepost." Though Hogan had urged Napolitano to veto the new law, he has publicly said that he is pleased that the judge will have a chance to review it.

While politicians struggle to produce a solution, Arizona's educators look on with dismay at a dysfunctional political process that has, as one describes it, turned kids into pawns in a fight between adults. Most educators favor Napolitano's proposals and agree that districts need more per-student dollars, preferably without restrictions on their use. They point not only to the cost study cited by Hogan but also to their experience on the ground when calling for adequate per-student funding to reduce class sizes. "We have a lot of teachers who are struggling and frustrated, with no option to say, 'Here's an aide,' or 'We can reduce the numbers in the classroom because we can hire another teacher,'" says Irene Frklich, English language acquisition director for the Mesa public schools. Like many administrators who serve the ELL population, Frklich strongly favors per-student funding rather than a grant-based approach, and wants district administrators to retain the ability to decide how the funds are used. "We know who our students are; we know who our teachers are; we know what they need." In a district like Mesa, which is Arizona's largest, a "one-size-fits-all program is not going to work," Frklich says. The distribution of ELLs in Mesa is highly uneven; schools can have ELL populations that are as small as 1% of their total student population or as large as 80%. And students come into the district with vastly different educational backgrounds. "We're getting kids that have no education and kids that have an excellent education, and we have to provide for both of them," she says.

But Arizona's superintendent of schools, Tom Horne, doesn't want individual districts to call the shots on English language learning. Instead of simply handing out a flat sum of money to the districts, Horne, who will defend the unsigned law in court, believes that it's crucially important for the department to provide models for successfully teaching structured English immersion (SEI). That's the method for teaching English mandated by the state's Proposition 203, which in 2000 effectively eliminated bilingual education in Arizona. Horne believes that by examining successful models for teaching SEI, the state can provide the "scientific basis" demanded by the court for demonstrating how English language learning should be delivered and how much it should cost. Horne also praises the law because it gives him resources to provide technical assistance to schools. With more resources at the state, as opposed to the district, level, Horne says he could do his job better. "I have six people in my English acquisition department," says Horne.

He adds that those six are "run ragged" doing court-ordered monitoring of schools to make sure they're teaching English language learners properly. With the 26 English acquisition staffers that the new law would provide, he says, the department could provide better assistance to individual schools, demonstrating what's happening at schools that are succeeding, and helping schools that aren't succeeding to imitate them.

As an example, he points to a recent push to boost performance in 81 schools in their second year of underperformance and on the verge of failing. He focused efforts on those schools for one year. In that year, 70 out of 81 improved enough to become classified as performing schools. "I think we've demonstrated that when we have the resources we give effective technical assistance," he says.

In response to Napolitano's accusation that the law will cause the "unwise creation of a new bureaucracy," Horne says, "Those are my people she's talking about, and they are going to help the schools vastly improve their methods of teaching ELL. When they work for you, they're experts, and when they work for the other guy, they're bureaucrats."

The "experts" versus "bureaucrats" problem may also explain the difference between Horne's and Hogan's views of the NCSL's 2005 cost study. Of the study, which Hogan cites respectfully in his call for higher levels of funding, Horne says, "The draft that [the NCSL] came up with had no scientific basis and it was so bad that they actually wrote off their fee." The difference in their perceptions boils down to the question of who is an "expert" on the cost of English language learning. The NCSL study made use of a panel of experts convened to analyze what it would cost to provide successful programs. But critics of the study, like Horne, would prefer the approach that the law maps out-identifying the best-performing schools and analyzing their techniques. The fact that Horne and Republican legislators have largely dismissed the study is a thorn in Hogan's side. While he agrees that the study was flawed in one sense-because it collected current ELL costs from too few school districts-"the important part of the cost study is the exercise of figuring out what they should be spending, not what they are spending; we've already figured out from court that what they are spending is inadequate."

At least one educator has also leveled the "bureaucracy" charge at Horne's monitoring and technical assistance "experts." Casey O'Brien, Assistant Superintendent of Curriculum for the Nogales Unified School District, doesn't believe that more resources should go to state monitoring and technical assistance. "What we don't need is another layer of bureaucracy from the state level," he says. "To put it in military terms, we're in a battle and we need boots on the ground to get the job done." Two-thirds of O'Brien's 6,200 students are ELLs, and Nogales, where Flores originated, struggles with some issues specific to its population. The border district has a steady influx of older students who have to be brought up to speed as middle or high school students. The district has trouble finding teachers trained in delivering structured English immersion in content areas.

Instead of watching more funds go toward enforcing state models for education, O'Brien would like to target areas where his district needs the most help. He'd like to spend more on training teachers bilingually and in SEI. He'd like to create better English language development curricula and build individualized plans to provide ELL students with extra help outside of school hours. He'd also like money in his own district to support monitoring of student progress that the state already requires, a costly proposition. "More money [at the district level] equals better service and more success for those students," says O'Brien.

But O'Brien and the other educators are ultimately willing to do whatever the law tells them they need to. "If a more stringent measure [than I'd like to see] goes through, we will still do the job, but there's no doubt in my mind that it will not be as effective," he says. And that sentiment is echoed by Catherine Rivera, Executive Director of Elementary Schools and Excelling Teaching and Learning for the Scottsdale Unified School District. "We do the best job of educating our students under the guidelines we're given," she says. That doesn't mean she's not allowed to have her own vision. "My dream would be to have bilingual education for all students in our global society, which means all students become not just orally proficient but literate in at least two languages. So that not only encompasses ELL students, but it encompasses only-English speakers, because they need to be accessible to the world also."

Despite the progress that's been made since December, it's clear that Rivera and like-minded educators have a while to wait before her vision is realized, and for now, it's the waiting game that has educators most on edge. "Flores is how many years old? And we're still trying to figure it out," says Mesa's Frklich. "Children come and go and we have to continue to educate them whether or not we get money. The political process is slow and it is not sensitive to children's needs and that to me is a real crime."

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