Sanctions Against Arizona for Inaction on ELL Funding, Court Suspends High Stakes Tests for Students Denied Opportunity

On December 15, 2005, federal District Court Judge Raner C. Collins ruled that, beginning 15 days after the legislature convenes in January, the state of Arizona must pay daily escalating fines, unless it has by then enacted legislation to provide sufficient additional funding for the state's English language learner (ELL) students. Judge Collins also granted plaintiffs' Motion for Injunctive Relief by prohibiting the state from requiring ELL students to pass the “AIMS” tests to receive a high school diploma.

$500,000 per Day

Although the court imposes sanctions of $500,000 per day for 30 days, and increases them to $1 million, $1.5 million, and $2 million per day every 30 days thereafter, the court's order can only be characterized as moderate, given the state's on-going violation and failure to comply with the court's previous rulings.

Students Cannot “Hold up the Walls” Without Foundation

The plaintiffs requested an injunction lifting the high-stakes AIMS test as a requirement for high school graduation until ELL students have a meaningful opportunity to be prepared for the exam. Over 80 percent of ELL students routinely fail the English language reading and writing tests that are part of AIMS. The court granted plaintiffs' request and ordered

that ELL students not be required to pass the AIMS test to secure their diploma until the State has properly funded ELL programs and there has been sufficient time to allow ELL students to compete equally on the test.

The court succinctly describes the situation as one in which the state is

requiring something of ELL students for which the State has failed to provide the proper foundation and for which the State still wishes to require ELL students to nevertheless hold up the walls.

Reactions

Tim Hogan, of the Arizona Center for Law in the Public Interest and counsel to the Flores plaintiffs, said, “The plaintiffs are very pleased with the court's decision and hope this will lead to a prompt solution this legislative session that includes adequate funding for English language learner programs.” 

As reported in the Arizona Republic, Tom Horne, State Superintendent of Public Instruction, said that he will work with the legislature to meet Collins' demands but also plans to ask a federal appeals court to block the sanctions. He also believes that the AIMS test should still be a requirement; otherwise, he said, students earn "a meaningless diploma that is a product of seat time rather than academic achievement.''

Background

The case, Flores v. Arizona, was filed in 1992 by the Arizona Center for Law in the Public Interest on behalf of the 185,000 ELL school children in the state, a group constituting about one in every five students.

State Funding Arbitrary and Capricious

Almost six years ago, in early 2000, the court ruled that the State of Arizona was violating the federal Equal Education Opportunity Act “by failing to adequately fund instruction for children who are ELLs.” The latest court decision summarized the history of the case, writing that:

Thousands of children who have now been impacted by the State's continued inadequate funding of ELL programs had yet to begin school when Plaintiffs filed this case. . . , the case finally resulted in Judge Marquez deciding in February 2000, that the method used by the State for funding ELL programs bore no rational relationship to the actual cost of providing such programs and was inadequately funded in an arbitrary and capricious manner.

Cost-based Funding

In its 2000 opinion, the court had also ordered the state to develop cost-based funding for ELL programs. Then, last year, the court gave the state until the end of the 2005 legislative session to enact a sufficient ELL funding methodology.

Instead, the legislature passed a bill that would have increased ELL funding by $75 per pupil, despite a cost study conducted by the National Conference of State Legislatures (NCSL) that “identified incremental costs of providing ELL programs in the range of $1,026 to $2,571 per student depending on grade level and student need.” The governor vetoed the bill, saying that it did not “meaningfully addresses the Court's legitimate concerns.”

Prepared by Molly A. Hunter, December 30, 2005