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Back to Mar. Ed Reporter

Education Reporter
NUMBER 242 THE NEWSPAPER OF EDUCATION RIGHTS MARCH 2006

Judge Punishes Arizona Legislature —  
Demands Payment of $$$$ Millions
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The State of Arizona has been ordered to deposit millions of taxpayer dollars into a fund for the children of illegal aliens in public schools. The required payments began accruing on Jan. 25 at the rate of $500,000 a day and rose to $1 million a day on Feb. 24.

The payments were ordered by Judge Raner Collins, a native of Arkansas whom President Bill Clinton appointed to the federal district court in Tucson. Unless the judge relents, the court- ordered payments will rise to $1.5 million a day on March 24, and then rise again to $2 million a day when the legislature adjourns later this spring, continuing indefinitely thereafter.

Judge Collins presides over a case called Flores v. Arizona, in which a private lawyer named Tim Hogan was granted the right to represent the estimated 160,000 so-called English Language Learners (ELLs) in Arizona public schools. The vast majority of ELLs are children whose parents have illegally entered the United States from Mexico.

The state's Democratic governor (and former attorney general) Janet Napolitano and the current Democratic attorney general Terry Goddard have been responsible for defending the lawsuit. Neither the Republican superintendent of education, Tom Horne, nor the Republican-led state legislature are represented in court, although they bear the burden and are expected to pay all the costs of complying with the judge's orders.

As required by the controversial Supreme Court decision of Plyler v. Doe, which was decided in 1982 by a bitterly divided 5-4 vote, illegal alien children have long been permitted to enroll in Arizona schools at public expense. But their performance in school is extremely low. More than 80% of these children have failed the statewide assessment test called AIMS (Arizona's Instrument to Measure Standards), a failure rate which is more than triple the statewide average.

Following an earlier Supreme Court decision (Lau v. Nichols, 1974) that required states to provide adequate instruction to children whose native language is not English, Congress passed a federal law requiring each state to "take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs."

A previous judge in the Flores case had refrained from ordering any specific action because, as he said in 1999, there is no legal standard for determining what kind of action is "appropriate." That judge ruled in 2000 that the state was not doing enough, and the legislature responded by increasing state funding from $150 to $360 per ELL, over and above what other students receive.

But the extra money has not led to higher test scores. Judge Collins' ruling cites poor AIMS scores as proof that the state has "illegally underfunded" ELL programs, thereby depriving ELLs of their right to a free public education.

Accordingly, Judge Collins ordered the state legislature to spend however much money the court deems "appropriate" to ensure that ELLs can "overcome language barriers that impede equal participation." His order suggests that illegal alien children not only have the right to attend public school, but also the right to pass the tests given in English.

The order also mandates 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." Evidently, Judge Collins will not be satisfied until illegal alien children can pass the AIMS test at the same rate as native children.


 
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