Court Finds Arizona Under-Funds ELLs; Litigation in Missouri and Kentucky

Arizona is illegally under-funding programs directed towards English learners, a federal court ruled in late March. Arizona’s actions, Judge Raner Collins of the U.S. District Court for the District of Arizona ruled, violate multiple federal laws and may put in jeopardy $600 million of federal education funding that Arizona receives.

In other litigation news, closing arguments were held last month in Committee for Educational Equality v. State, Missouri’s school funding trial, and the Kentucky trial court is considering a motion for reconsideration of its February decision to grant defendants’ motion for summary judgment in Young v. Williams.

Funding Formula Insufficient and Illegal

Judge Collins’s ruling is the latest event in Flores v. Arizona, Arizona’s long-running lawsuit in which plaintiffs claim the state is not providing the resources English Language Learner (ELL) students need to receive an adequate education. The ruling invalidates HB 2064, the funding formula passed by the Arizona legislature in response to an earlier decision in the case. HB 2064, which would raise the amount of funding directed for ELL programs from $365 to $444 per pupil, Judge Collins ruled, is insufficient to meet the needs of ELL students. The formula, he noted, provides significantly less than was recommended by a court-ordered cost study completed in 2005.

According to the federal Equal Educational Opportunities Act, under which the court struck down HB 2064, states are required to ensure that all students, regardless of native language, have the opportunity for “equal participation” in public education. The insufficient funding, Judge Collins, ruled, violates this federal law.

Judge Collins also ruled HB 2064 illegal in other ways. First, it mandates that schools can only receive the additional funding for a student for two years. The record in the case showed that many ELL students take longer – often four or five years – to become proficient in English. HB 2064 would illegally deny these children equal participation in education. In addition, the bill stipulates that districts are required to use a portion of their Title I, Title II, and Title III federal funds to pay for ELL services before they get state aid. As all of these federal funds are given under the condition that they will “supplement not supplant” state monies, this requirement is illegal and jeopardizes the $600 million in federal funding that Arizona receives, the court ruled.

Progress Coming Slowly

The Flores lawsuit has been in court for fifteen years. This past July it was remanded by the Ninth Circuit Court of Appeals for a full hearing on whether “changed circumstances” required modification of the original 2000 court order that invalidated Arizona’s formula for funding ELL programs. Tim Hogan, lead attorney for the plaintiffs, was pleased with last month's ruling, which upheld the 2000 court order and demanded action from the state. “For the last seven years, [lawmakers] have tried to get along with putting as little money as possible into this,” he told the Arizona Republic.

Closing Arguments in Missouri, Motion for Reconsideration in Kentucky

On March 29 and 30, closing arguments were heard in Committee for Educational Equality v. State. Attorneys for the state and attorneys for the school districts suing the state faced off one last time in a trial that lasted for over seven weeks. The plaintiffs are arguing that the state has failed to provide enough school funding for all children to have a meaningful educational opportunity.

"We don't think anyone can say with a straight face that an equal opportunity is being provided to all," Alex Bartlett, lead attorney for the plaintiff school districts, told the court. Attorneys for the state, in response, argued that Missouri’s newest school funding plan, passed in 2005, is more than sufficient to meet the state’s constitutional obligations.

Judge Richard Callahan had tough questions for both sides. He asked attorneys for the plaintiffs whether schools had the responsibility of making up for social factors over which they have no control. He also indicated he was “troubled” by the idea of ruling that programs such as preschool were constitutionally mandated and that more money was the only way to address the question of adequacy. To the state, Judge Callahan addressed questions as to whether the funding formula was truly adequate. Judge Callahan said he believed schools were in serious trouble, and he questioned whether the slow, seven year phase-in of the 2005 formula was appropriate for meeting the needs of students.

Also pending as part of the CEE v. State lawsuit is a dispute over property tax assessments in Missouri. Lawyers for the Committee to Fund Excellent Schools, a group of school districts that joined the lawsuit, argued that inaccurate property tax assessments unconstitutionally corrupt the school funding formula by causing rural areas to collect too little in local taxes and thus receive too great a share of state aid. Lawyers for the state disputed this claim, saying that the districts failed to prove widespread inaccuracies.

With arguments over, attorneys on both sides must now submit final briefs and proposed findings of fact and conclusions of law. Judge Callahan has said that attorneys should not expect a decision any time soon.

In March, Judge Thomas Wingate held a hearing on plaintiffs’ motion for reconsideration of his decision in Young v. Williams. Judge Wingate granted the state’s motion for summary judgment in February citing separation-of-powers issues and a lack of “objective evidence of shortcomings in Kentucky’s education system.” Depending on the court’s ruling on the motion, the parties are expected to consider an appeal.

Prepared by Matthew Samberg, April 5, 2007