Ariz. Faces Sanctions in LEP-Student Funding Lawsuit

The Arizona legislature adjourned last week without acting on a
federal judge's directive to increase funding for students with limited
English proficiency, raising the specter that the state could forfeit
all federal funding—for everything from highway construction to
schools—under a worst-case scenario.

Arizona officials and legislators said they expected to stave off
penalties against the state by dealing with the issue in a special
legislative session scheduled for this summer. But they acknowledged
that it remained unclear whether that ultimately would satisfy the
judge's requirements.

And the lawyer who represented limited-English-proficient students
in the class action that set the current crisis in motion said he plans
to ask the judge next week to increase the pressure on the state to
comply with the court's earlier ruling that the state must increase
funding for LEP students.

"I haven't decided what kind of sanctions we want imposed," said
Timothy M. Hogan, the executive director for the Arizona Center for Law
in the Public Interest. "We could ask the judge to stop the school
finance system from working until they comply with this, which is to
shut the schools down."

Mr. Hogan sent a letter in March to Gov. Jane Dee Hull and the
leaders of the state House and Senate in which he said he would ask
U.S. District Judge Alfredo Marquez to withhold all federal money from
the state if the legislature didn't increase funding for LEP students
in its recent session.

"I don't think anybody is casual about it," Elliot Talenfeld, the
lawyer who is defending the state in the class action, said of the
situation. "It's extremely serious."

"I don't think anyone wants to wait and do whatever a judge tells us
to do," added Sen. Randall Gnant, a Republican and the president of the
Senate. He said consideration of the matter had moved from the
"let's-just-ignore-it stage to the front-burner stage" among state
lawmakers.

Unusual Focus

The Arizona lawsuit breaks new ground in court battles concerning
LEP students' education because it focuses on how much states and
school districts spend on such students, rather than whether their
education itself is adequate, said Peter D. Roos, a co-director of the
Boston-based Multicultural Education, Training, and Advocacy Inc., or
META, a nonprofit group that monitors such litigation.

"There are no direct parallels in litigation that's currently going
on," he said.

Mr. Roos said no consensus has emerged in recent court cases
regarding how much states should set aside to educate LEP students.
"Most of the cases have not been directly related to funding," he said,
"but cases that challenge the substance of what school districts and
states are doing."

META filed a lawsuit in 1990 against Florida, which resulted in a
federal consent decree to improve the education of LEP students in that
state. The consent decree increased state funding for such students, it
focused on the need for the state to establish a system for identifying
those students, set standards for teachers who worked with them, and
otherwise improve language-acquisition programs.

Arizona lawmakers cannot be sued individually, so the federal judge
hasn't told them directly what to do in his rulings in the Arizona
case, Flores v. State of Arizona. The lawsuit pits LEP
students and their parents in the 6,210-student Nogales school district
against the state of Arizona, the state schools chief, and members of
the state board of education.

But the judge ruled in January of last year that the $150 Arizona
currently gives districts to help educate each LEP student above what
it already allocates for other students is not adequate. The judge
ordered the state to increase that amount.

In October, he directed the state education department to commission
a study of what it costs to educate LEP students and submit the
findings to lawmakers in time for them to consider the issue during the
session that just adjourned. He also called for increased funding in a
timely manner.

Part of the study was delivered to the legislature in March, but the
education department didn't put final copies of the study on the
lawmakers' desks until this month—after the legislature's regular
session had ended.

An education department spokeswoman said the study was late in part
because no one responded to the agency's first request for outside
groups to conduct the study. Some legislators say the study's tardy
release prevented them from taking action on funding for LEP students
this spring.

But other lawmakers say that even without the cost study, they
should have increased aid for LEP students in the budget to show the
judge they were serious about the issue.

The Senate favored putting $32 million into the budget for LEP
students, which would have nearly doubled what the state now spends on
those students, but the House and Gov. Hull, a Republican,
disagreed.

Missed Chance

By doing nothing, the legislature missed a chance to resolve the LEP
issue with less money rather than more in the long run, asserted Sen.
Ruth Solomon, a Democrat and the chairwoman of the Senate
appropriations committee.

She said her concerns are grounded in past experiences of working
with Mr. Hogan. He won a lawsuit against the state that ended up
costing Arizona billions of dollars in new funds for school
construction while the matter might have been settled with millions of
dollars if the legislature had moved more quickly, she said.

Ms. Solomon thinks the legislature could face a similar situation in
the LEP case. "I believe if we had taken some action earlier and
included something in the budget, if we had put $32 million in, that
would have given us some time to buy," she said. "I'm not sure if the
people who are litigating this are going to be happy with $30 million
or $40 million."

"We are all sort of second-guessing the judge and we're
second-guessing Hogan," she added.

Rep. Laura Knaperek, a Republican and the chairwoman of the House
appropriations committee, said the legislature did do something that
may send a message to the judge that it has not ignored the court
order, even if it hasn't yet directly addressed it.

The legislature put $50 million into a "carry forward" fund to be
used to balance the state budget, Ms. Knaperek said, noting that
lawmakers could use some of that money to increase funding for LEP
students.

Ms. Solomon doesn't disagree, but notes that the budget contains no
language tying that money to LEP students.

A Wide Range

Lawmakers say the issue of financing programs for LEP students may
be resolved in a special summer session of the legislature, but the
cost study may be of little help because it shows such a wide range of
costs for LEP students. The study also found no correlation between the
proportion of LEP students in a school and what was spent on them.

In an overall survey, Arizona school districts reported spending
from zero to $4,600 per LEP student in addition to the money spent on
other students. The average for all districts was $1,200 extra per LEP
student, the study found.

Case studies of six English-immersion programs showed a range of
$185 to $3,008 spent per pupil, and a model bilingual education program
that was studied cost $1,295 per pupil."We were hoping for a smaller
range," Ms. Knaperek said. "The fight is going to be how much it should
be. It's not a number you can just declare and it works for
everybody."

And Arizona is likely to get little insight by looking at what other
states provide for LEP students, because those allocations are also all
over the map.

Some states with established immigrant populations pay out more for
LEP students than Arizona does. For example, in California, a district
can receive $100 to $600 in extra funding for each LEP student in a
single year, depending on the kind of state grant program it applies
for. Texas spends about $250 extra per LEP student, while Florida pays
out an added $679. States with emerging populations of LEP students
spend sums that range from $54 extra per student in Indiana to a
possible $3,401 extra per student in Georgia.

Ms. Solomon, the Arizona lawmaker, said it's difficult to budget for
LEP students, in part because the legislature hasn't previously
examined the educational costs of the LEP student population very
closely. "We've never done this for LEP—taken a look at the
policy behind it, what it costs, what a good program looks like, how
long students should stay in a good program," she said.

But Mr. Hogan, the lawyer for the LEP students, contended that if
Arizona legislators can't agree on an increase in funding for LEP
students, they aren't serious in serving a large proportion of the
state's students. Seventeen percent, or 151,000 of the state's K-12
students, have limited English skills.

"My goal is to see that these kids get a shot at a decent education.
Without language-acquisition programs, these kids are lost," Mr. Hogan
said. "Unless you pony up the money that it takes so these kids have a
shot at it, you're not doing the job."

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