Judge Seeks End to Education Impasse by Jailing Governor and GOP Leaders

TUCSON (Susan Carroll, Arizona Republic) November 1, 2007 — A federal judge on Monday raised the possibility of jailing elected officials, including the governor, or freezing lawmakers' salaries if the state fails to comply with a court order to improve immigrant-student education.

U.S. District Court Judge Raner C. Collins heard arguments in a controversial case brought by public interest attorney Tim Hogan seeking a freeze on more than $500 million in federal highway construction funding until the state's politicians can reach a compromise on English-learner education.

After more than two hours of arguments on Monday afternoon, the judge issued no decision and took the case under advisement. Lawyers on the case expect a ruling possibly in December, near the eve of the Jan. 9 opening of the legislative session.

Collins repeatedly questioned attorneys for the state and Hogan on the possibility of holding lawmakers and the governor in criminal contempt, at one point directly asking Jose Cardenas, the lawyer for the state, "Who would you lock up?"

"So, hypothetically speaking," he asked Hogan, "if we were talking about throwing someone in jail, who would be the first three names off your lips?"

Cardenas said no one should be locked up, but Hogan listed his top three choices: Gov. Janet Napolitano, Senate President Ken Bennett and House Speaker Jim Weiers, the three powerful leaders in a bitter stalemate over the issue of English-learner funding.

The case centers on a court decision in 2000 that found education for students learning English as a second language failed to meet federal standards. Hogan is arguing the state has failed to improve instruction more than six years after a pivotal court decision and needs a "powerful incentive," such as withholding the federal funds, to force a compromise between the Republican-dominated Legislature and Democratic Gov. Janet Napolitano.

Hogan pushed for the judge to force the Legislature to convene a special session as soon as possible, saying the decision could affect up to 185,000 students.

"How long before we lose an entire generation of these kids?" Hogan asked. "Over 80 percent of these kids are failing AIMS. They don't have a chance. Where's the concern for those kids?"

Hogan also asked Collins to exempt English learners from having to pass the AIMS test to graduate from high school next year because of the state government's failure to comply with the court's order.

Collins had given Arizona's leaders until the end of last spring's legislative session to comply with his order in the Flores vs. Arizona lawsuit, which was filed in 1992 on behalf of a family in Nogales. But that deadline blew up in May in a hail of partisan name-calling and finger-pointing. Napolitano vetoed a Republican legislative plan that she said did not meet the court's demand for adequate funding for English instruction.

The English-learner program could cost the state an extra $200 million a year and boost the skills of 160,000 to 185,000 Arizona children, most of whom are U.S. citizens but whose parents generally are immigrants.

Jose Cardenas, an attorney for the state, said state lawmakers and the governor are at an impasse and both sides on the debate believe they are correct and in compliance with the law. He asked that Collins give further guidance on how to comply with the law rather than sanction the state or freeze the highway funds.

Collins also scolded Ronald Messerly, the lawyer representing American Council of Engineering Companies and Associated General Contractors of America, who questioned his legal power to freeze federal highway spending.

If the money were stopped, it could have an immediate effect on freeway projects that include the widening of Interstate 17 from Loop 101 to the Carefree Highway; the construction of carpool lanes on the Pima freeway; and, in the East Valley, the widening of U.S. 60 from Val Vista Drive to Power Road.

In threatening an appeal, Messerly said: "I'm perfectly willing to go home and take my toys with me."

Collins leaned forward in his chair before dismissing Messerly and asked, "What course in law school prepares you to tell a judge what he can and can't do?"