State has met English learning requirements, attorney tells appeals court

SAN FRANCISCO - The attorney for Republican legislative leaders argued Tuesday that lawmakers have done all they need to comply with federal laws requiring the state to ensure all students have an opportunity to learn English.

In fact, David Cantelme told the 9th U.S. Circuit Court of Appeals that lawmakers even can repeal a 2006 law which is supposed to provide more funds to schools to help teach students not proficient in English.

Cantelme said Arizona schools are complying with the federal No Child Left Behind act, designed to ensure schools are making progress in improving education. That, he argued, means the state also is now complying with the federal Equal Education Opportunity Act, the law a judge first concluded nearly eight years ago the state is violating.

But Judge Marcia Berzon, heading the three-judge panel hearing the case, said Cantelme is confusing the laws. She said the law at issue says states must provide "an appropriate education now for each child." By contrast, she said, NCLB simply measures overall progress of schools in raising academic achievement, something Berzon called a "more aspirational" goal of better education sometime in the future.

Hanging in the balance is how much more - if anything - Arizona taxpayers will have to provide to ensure the approximately 135,000 youngsters classified as "English language learners" become proficient.

Two federal judges have concluded Arizona is not providing sufficient funds. Based on that, the Republican-controlled Legislature voted in 2006 to come up with "models" of how English should be taught through English immersion programs, with a promise to provide the funds each district says it needs.

That funding has yet to occur, a point which U.S. District Court Judge Raner Collins cited two months ago in holding the state in contempt. And Collins said the funding comes with illegal strings, including a two-year limit on extra cash for each student.

Collins gave lawmakers until March 4 to fix the law and come up with the cash. On Tuesday, though, Cantelme argued lawmakers don't even need to comply with that law.

He said students in the Nogales Unified School District - where the original parents who sued in 1992 are from - now are learning English with the funds the state already provides. He said that means the court orders and the contempt citation should be thrown out, without lawmakers providing even an additional penny.

Attorney Tim Hogan who represents the parents, said Cantelme is cherry-picking his facts, saying English learners in most Nogales schools still are not performing on par with those whose native language is English.

Anyway, Hogan said what is happening in Nogales is irrelevant. He said the trial court declared Arizona's funding scheme for English learners illegal and directed lawmakers to fix it for the entire state.

Arizona now provides about $365 a year for each youngster classified as an English learner on top of basic state aid for all students. Trial judges have repeatedly ruled there is no evidence to show that is enough to do the job and comply with federal law.

Berzon also noted that officials from several school districts filed a legal brief saying they still don't have enough money. But Eric Bistrow, attorney for state School Superintendent Tom Horne, brushed that aside.

"School districts want more money," he said. "That's what it's about."

How much is at issue remains unclear.

Hogan said a study lawmakers commissioned from the National Conference of State Legislatures found the average cost was about $1,800 a student, a figure that would add close to $200 million a year to state education costs.

The appellate judges, noting the years spent litigating the case, suggested the various sides might try mediating the dispute - and the amount of funding necessary - rather than keep winding back in court.

"It seems to me if Israel and Palestine can agree to sit down, maybe you folks can, too," Judge Betty Fletcher said. But the attorneys all said in one form or another they are not sure a negotiated deal is possible, given both the politics and the amount of money involved.