Once past the long, agonizing upheaval of school desegregation, the states and their education departments by and large have bent to the federal will. But what happens when they don’t? What if instead they see a federal judicial order as a threat to be resisted? Legislative leaders and the twice-electedstate superintendent of schools in Arizona are putting these questions to the test in a long-running lawsuit. In Flores v. Arizona, the central issue is how much the state must spend for English language learners (ELL) beyond a basic grant to school districts. This is a heated issue in a state on the Mexican border with a large immigrant population and a Republican party that gave the country Barry Goldwater.
Flores v. Arizona was filed in 1992, a class action brought by an advocacy law firm on behalf of parents in the town of Nogales. The suit rested on the Equal Educational Opportunities Act of 1974, which provides that no state shall fail “to take appropriate action to overcome language barriers that impede equal participation…in its instructional programs.” In 2000, a federal district judge ruled that Arizona was violating this relatively obscure law, both by not spending enough on its Lau programs—a reference to a Supreme Court decision of 1974 and regulations of the federal Office for Civil Rights—and by failing to provide enough teachers, aides, classrooms, materials, and tutoring. Eight years later, Arizona is spending $430 extra per ELL student per year, but has not satisfied the court. Rather, the legislature challenged the court with a law that would have put a two-year cap on extra spending for any individual ELL student and use federal funds in place of some state funds.
Arizona did not appeal the judgment and signed a consent decree that addressed matters other than spending. The spending issue festered as the politics grew more problematic. In 2000 the electorate approved a ballot initiative that abolished bilingual education and replaced it with English immersion. Janet Napolitano, a Democrat who was elected governor in 2002 and reelected in 2006, has battled with Republican state legislators over what to do.
Judge Raner Collins has twice found the state to be in civil contempt. Early in 2006, he imposed a fine of $500,000 per day, to be held in a fund dedicated to ELL instruction. A total of $21 million was collected from the state, but the Ninth Circuit appeals court ruled that Collins had exceeded his authority and canceled the fines. He has also hinted at jail sentences, which presumably would fall on the Speaker of the Arizona House and the president of the Senate, who are intervenors in the suit, and the superintendent, who is a named defendant.
Judge Collins found an ELL law enacted by the legislature in 2006 without the governor’s signature to be inadequate, but the Ninth Circuit instructed him to hold an evidentiary hearing to determine whether the original court order was still valid. The intervenors argued that changes of fact (increases in general education spending) and in law (enactment of No Child Left Behind) made the original order obsolete and asked to be relieved from judgment. Collins ruled against them and was upheld in 2008 by the Ninth Circuit.
Under threat again of fines, the legislature approved an additional $40.6 million for ELL in April 2008, and again the governor let the bill become law without her signature. Districts were instructed to use model plans developed by the state department of education, which called for four hours a day of intensive English instruction. This directive caused trouble on the local front, in districts that resisted the four hours of immersion or were disappointed with the allocation formula. A Tucson-area district, Sahuarita, announced that it would defy the state law, stating that federal civil rights laws are trump.
The issue headed, once again, to Collins’s court, with a renewed demand from the Flores plaintiffs for more money. Tom Horne, the outspoken state superintendent, protested that “we don’t need an aristocracy of federal judges ruling over us.” Horne and the legislative leaders have demonstrated, if nothing else, that determined opponents of the “judicial aristocracy” can buy a lot of time, and probably avoid going to jail.
Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.
