to david can tell me appearing on behalf of the speaker the ozone house representatives and president of the arizona senate i have with me rick bistro who will be representing the superintendent of public instruction and we're dividing our twenty minutes equally at the following the parties the named parties plaintiff and the class of the p l l students in the no gallus district third the act adopted by the legislature a few months ago does not violate the supplement not supplant provisions of the elementary and secondary education act and finally the fines must be set aside because the compensatory and the district court held no hearing to determine the appropriate i'm out of the fines and i'll begin with jurisdiction well i mean if you something a couple of minor factual questions just are ever going to be straight  the money from the fines goes it doesn't go to the students right it goes to the districts that have the students that don't speak english as a primary language yes you're on jurisdiction in denying or not providing for injunctive relief he needed to move in to rule fifty nine or rule sixty to set aside the judgement so that they could then get injunctive relief but they didn't do either instead more and at that point your daughter's case was decided it was final there was not subject matter jurisdiction to provide injunctive relief i don't think i understood this from your briefs what you're saying is they had a declaratory judgment on the new galaxy district and it was all over and then more than a year later they asked for an injunction against the whole state that's it and they also asked for injunctive relief not just declaratory but this is the important point they as this is the only appeal in that case what we have here before now the parties where the name plaintiffs of course and in the second amended complaint they asked to for yellow instruction statewide aims which mr bistro will address in more detail was tried to the district court and the judgment denied relief tried in two thousand the judgment provided no   you know i appreciate your concern about the injunction in the scope of the class but your time is running now and you've got them there's some really critical issues here with respect to whether or not this is a compensatory or a or  have in order issued in december two thousand and five the order says the state must comply with prior decisions of this court and if you don't there's an escalating series of fines that order doesn't say coercive it doesn't say compensatory says there's an escalating series of fines now the attorney general came back in january and filed a motion to clarify and plaintiffs did not oppose and that was clarified that the he wanted the legislature to pass a bill to pass a law that compliant that implemented the original judgment your honor it's quite clear from reading that that the original order in december was coercive he wanted compliance you can't just read that order however you have to read that plus the january order well that's where you start out i think you have to start out with the with the notion that it was coerced or even december and the question is whether or not by allowing the money that had been deposited into the into the special fund to be disbursed to the district somehow or other converted that were to a compensatory welder but that just the court was very careful the order did not go to the plaintiff in this case it two categories inside the coercive in which case it goes to the treasury and you this court is twice held in both shuffler and the the nalco case or its compensatory there's no third category you can't make it co and then distribute the money other than of that to the tell me ask you this could if we determine that it was of course keeping we just reinstate that order i mean just basically modify the order and let the money go to the us treasury you would have to remain for this reason because the district court never went to the orders there is a standard and that standard must be met it has to be evaluated under that standard and that standard is in the united mine workers case and it must be the district court must evaluate the character this was a very serious problem and the district court made it clear what needed to be done six years later nothing had happened well it's not true that nothing had happened up there had been an interim order but there and there have been measured steps along the way but the district court there is still not been f compliance of the district court order i will grant you that that's how the just the district court regarded it he was running out of patience i would agree with that but i would also agree that there were many measures in between and then that court had found that the increase to three hundred fifty dollars  child was adequate at least on an interim basis but i will agree with you it is true that the district court in december of two thousand and five was not satisfied that the problem your honor is he didn't go about it the right way there are standards for setting fines and i'll reserve the rest of my time me please the court my name is over bistro and i represent the superintendent of public instruction thomas e horne within that council table i will deal with three broad issues satisfaction of the two thousand judgment propriety of contempt let me just your right to the question you are that you asked about with regard to any names the disparate impact of the initial january two thousand decision first of all the second minute complaint clearly implicated funding  minimum competency tests and the pretrial order which is that so you are one sixty seven so there's no question about that age fifty two it's quite clear from his order that from what was tried in the three date or two or three day ethnicity yes but the issue of inadequate funding he found inadequate funding of the two thousand decision that was also in front of him at that time in the pretrial order that because of an inadequate funding yellow students should be that two thousand judgment the challenge was to the validity of that test because it had a disparate impact and i gather if the plaintiffs to prevail on that claim the remedy would have been to enjoin use of that test period correct that's all let me turn to satisfaction of judgment of two thousand and just court found that the funny level of one hundred fifty dollars combined with other resources was not reasonably calculated to implement yellow programs in nogales unified school district the court did not reach that decision in a vacuum fell on the monies were insufficient because they did not provide the tools for new gallus to implement yellow programs and he made a whole series of findings about that you know after on clearly had there been no deficiencies than the gals unified school district the case would have gone the other way but now those deficiencies with regard to lack of classrooms and tutoring and insufficient materials and so on those deficiencies have now been cured the current funding levels the appendix to our reply brief on this issue so forth twenty five satisfied we joined that motion superintendent joining that particular motion and then provided a tremendous amount of evidence from the nogales unified school district that all the deficiencies that we complained about way back in two thousand in fact have been satisfied indeed we affidavit from the superintendent of the miguel's unified school district from two thousand through two thousand and five indicated funding was no longer a problem and no gallus that really what mattered in that particular school district was leadership kids kids who have been tested after two years of instruction are doing remarkably well in fact are exceeding the state average on aims tests so we take the position that the  court in view of the un contradicted evidence that was in front of it should have granted the rules of stevie five motion there was no evidence to there was no evidence for the other way heather been evidence that to go the other way we also made a formal request for an evidentiary hearing he didn't give us that either nor did he make any findings or reason why that motion was denied in his april twenty sixth two thousand and six order your honor i'm going to sit down and reserve one question little are we c with just no new callus district or the whole say that's a complicated question but the original case was framed in terms of  the evidence that has ever been presented with regard to inappropriate conditions has always been a gallus gallus is the benchmark if the conditions and you know you also been satisfied your honor then that that was the that was the school district that was picked by the plaintiff's lawyer if those conditions have been satisfied then that would apply to the entire state and there's some good reasons why he did not get also gallus at the border town it's easy percent of the kids in the know gallus your honor or  poverty stricken seventy five percent are not going to i'm not sure i understand that one save me you said if true costs the problem there was clarified it would apply to the whole state ye benefit if you take a look at the original opinion the case when they brought in evidence about the finnish union high school district on disparate impact the court said what about that's a relevant it doesn't deal with no gallus i'm confused about something you're saying the complaint the evidence at the hearing on the injunction or about no galleys to nothing but no galaxies but the judge issued an injunction applying to the whole state in two thousand and one that's what mr can tell me was talking about earlier yes and then the answer to everything being fixed in the galleys thing is but that doesn't matter the instruction applies to the whole state that is correct you never had findings of fact i'm healthy never going about the whole  new in compliance of the in two thousand but it could be a district court have ordered the legislature to just take care of nogales in other words adopt special funding or provide special funding just to know that you know i've never looked and not deal with the other students throughout the other each student throughout the state your honor i you know i've never looked into that issue clearly if you take a look at the beginning portions of the opinion in the original flora's of years on a case that deals with funding state wide and then it is nearly tailored to how that applies but i don't look to me like that was trying to be accomplished here whether you just look at this in terms of the gallus district students around the state that in order to accomplish to carry out the objectives of the original order the state had to redo its funding mechanism it had not the party seem to recognize that because afterwards the part proposed i mean they've agreed to this study that was going to lay the foundation for a revamped funding mechanism and then all this other stuff happened along the way and now when the when  know rubber hits the road sort of speak you know everybody backs off and you know none of this is only all about no gallant's now and you can't do all this stuff you can't force it to deal with the state line but it clearly looks like what they were trying trying to be accomplished here was to in order to carry out the judgment the district court had ordered the state to adopt measures that would any end would benefit the whole state well if we did we don't know that because there are never any evidence with regard to any of the school districts in the state at any time so for example in paradise valley school those are doors cultural unified school district no one knows whether based on the funny levels back then whether was deficient or not with the right never any of you know of an original injunction applied to the whole state is that right everything else so they direct their attorneys to leave this alone we're happy losing at so it's not appealed is there any way to penetrate that or is it all over that's a good injunction at that point your honor i think there supplement not supplant issues that the most recent legislation raises let me respond to a couple of questions that have come up and confirm first of all that the injunction most recent injunction we've asked for a number here the most recent injunction that the plaintiffs asked for is to stop using the aims test as a graduation requirement for english language learners not to stop  students in arizona it is one of the number of graduation requirements currently for students in arizona so we've just asked that it be stopped being used as a graduation requirement for graduating english on second there's been discussion about whether this case is just about no gallus unified school district the plaintiffs or class of parents and children from no gallus but if you look through the second amended complaint which was referenced here it's clear that what the plaintiffs were seeking was systemic relief i dress to the state school finance system not not to a particular school district was there evidence that the level of funding was not what the federal statute deems  appropriate use of the word program as i recall that the complaint first of all makes it clear that no gallus is an exemplary school district in the sense that if you understand my question i asked whether there was evidence of less than appropriate funding for locations other than no gallus no your honor the evidence at the trial in this case was directed to the no gallus unified school district and i mean more than anything else sufficient to demonstrate that there was harm as a result of these clearly arbitrary financer as evidence was just no gallus evidence that's right let me ask you what they think we have this night  could not imposed any remedies for the original failure of california to comply with federal law without having a hearing on the effect of the new legislation and how that might change things it said that federal courts must be sensitive to the need for modification when circumstances i'm wondering why that doesn't apply to your case well because of all the new money that's come in through the no child left behind act well for one thing the money comes in through the no child left behind act is not available for english language learners because of the supplement not supplant provisions put more generally your honor the answer to that with the injunction just to limit the supplement not supplant but and that's the point i'm going to speak to on its face this legislation did not satisfy the court's previous orders that the funding not be arbitrary and that it be based on cost fact doesn't speak to my change of circumstances if you were going to be a hypothetical to make it clear let's say ten years ago because of discipline problems in the schools and some disparate impact is totally hypothetical the federal district court issued an injunction saying there has to be a telephone in every classroom teachers can call for help or call the principal or the police when their discipline problems in the classroom the school bureaucracy totally blows it off that you actually nothing to comply ten years later they're back in court for lack of compliance but during that ten years everybody has gotten cell phones every teacher and cell phone there's no reason anymore to have a landline phone on every teacher's desk with the district court be able to impose sanctions for blowing off the injunction and order the schools to put the landline on every desk without holding a hearing on whether the now universal cell phones make it unnecessary to implement the original order i think the district court would be well within its i don't care if it's stupid you can blow off the district court put a landline on every teacher's desk now and i'm just anguishing between the authority to do that and whether it constitutes an abuse of discretion to do that certainly the district court would have authority to punish act that behavior as a contempt if that one of the defendants had blown off the coast be a criminal contempt that would not be coercive sanction well that may well be your honor depending on the nature of the you're correct i mean it may well be ultimately that it would be a judge to criminal contempt for not for for violating the court's order could that and it may well be and if it sanction you're going to pay a million dollars a day until you put a landline on every teacher's death under those circumstances that that suggests something must be working the change in the program from english is a second language to immersion the inject injection of new federal money and those all seem like requirements of the equal educational opportunities act which requires that funding be based on cost everybody's understood that for the last actually for the last twenty years or thereabouts what the this is a little different from that english well it doesn't even say that your honor it says the state has to take appropriate action to assist students to overcome language barriers that impede their equal participation and the appropriate action provision of the equal educational opportunities to act has been interpreted by cost in ada to mean a three prong test this case is brought under the second prong of that test challenging the resources the adequacy of resources that have been committed to the educational methodology that has been chosen by the state appropriate action to overcome language barriers that if they can show that the language barriers to been overcome by whatever action they're taken i don't get where you have a warrant to say but they're still they still should give us more money well that issues addressed in castaneda's well your honor because that the test requires the commitment of resources you don't look at outcomes any more than we could prove our case by this light outcomes you mean if they give  more money to the schools with a lot of students that don't speak english as their native language and that's what the schools do is build the swimming pool with every school that has a lot of non english speaking students that's fine that complies with federal law but if without spending the money to bring the students up to the same level of english competencies everybody else but they don't spend more money they just find better ways of doing  it that's not comply with the law well they they need to find better ways of doing it as well your honor but that's the issue is resources at least one of the issues and it comes before looking at outcomes because another because resources are what create the opportunities for those stairs understand that washington d c the best funded schools in america and the worst north dakota among the worst funded schools and the best that i don't understand why resources come first because resources are what create the opportunities for these students how do you know that that we wouldn't have many many more students doing much much better if we had adequate resources in place that's the issue not whether or not they're performing at average below average or above average that's why the constant made a case requires the commitment of resources before you look at that answer from looking at the total lack of correlation across the nation between resources allocated to schools and educational outcomes so yes we do voters approved english as a second language the second prong is the state has to commit adequate resources to affectively implement that methodology that's that's what congress as interpreted by the courts has stood in the quite educational opportunities are let me ask you along the lines of judge kleinfeld questions and following up on the questions i was asking counsel a minute ago i don't see why the state or or why the superintendent or the speaker or whoever could not have filed a motion anywhere along the way after the court issued an injunction order that said you know we moved or to  the injunction on the grounds that we're now in compliance by whatever whatever think whatever they want to present the showing that they're in compliance counsel just said to me that they tried to do that with  effective at the beginning of two thousand and one i mean the voter proposition that increased had largely had the effect of increasing teacher salaries was for six years ago something like that those at any thank you good afternoon my name is suspect hardness i represent the state of arizona along with my co counsel from the attorney general's office susan segal i want to focus principally on two things one is the federal funding restrictions that are the reasons why the state of arizona has such great concerns with h b twenty sixty four and the other is the serious missing teachin of authority found in the interviewer's reply brief arizona gets over five hundred thousand five hundred million dollars a year in yulee in federal educational funds in exchange for those funds it makes written commitments that it will administer those funds in accordance with all applicable statutes and further specifically that it will use those funds so as to supplement not supplant state and local dollars the problem with h b twenty sixty four is that it directly conflict with those prior commitment to the state of arizona judge collins held that the statute on its face violated those federal funding restrictions because you know affect the legislature wrote federal funding restriction violations right into the statute me ask you this twenty sixth you're talking about twenty sixty four you know the statute yes sure i ask you this life and somewhat problematic here if i understood it twenty sixty four it is not going to affect late was written the funding provisions they will take it from three fifty five to forty two so it isn't a fan and so is the legislature essentially asking for an advisory opinion well then they put that requirement in and the court would have had to consider anyway but even even if that wasn't there want this to really we don't really want to do this unless the district court ok you can do that that takes care of all the problems everything else goes into effect turning the only thing that doesn't go into effect is the one  money what's left three hundred fifty five dollars in group b weights and then you still have the what's what's in the twenty sixty four without the added money what's there for the three hundred fifty five dollars per student plus the way the scheme is worked to set up so that you the school district determine their actual incremental cost of funding equal education they then are required to offset right from that all these federal funds and then they get whatever the group the weight is which right now without the extra money is three hundred fifty five dollars plus whatever the difference is between those offsets and the actual incremental cost so the statute goes into effect if this is actually just not into it doesn't go into effect chunk of money yes because the only thing that this conditional is that fourteen million dollars ok and what you have is now what does the state have to do to purge itself of contempt well if they decide we're going to turn over a new  have politically everybody's on the same page now we want to do everything that this trick judge has ordered us to do so that we can stop these fines i can't figure out exactly what it is they have to do my point of view fairly straightforward what judge marcus says is you determine what your programs are he didn't tell the state what to do he said and then you think about what the actual cost is the problem the judge marcus found was that there was no rational it's actually between what the state was spending and what it actually cost but the but then the judge can still say no i still don't think it's appropriate or your program is not satisfactory no not at this stage because the judge neither judge cons nor just marcus has ever said what you are doing is wrong here methodological approaches runs never been set what they've always said is whatever you're doing fund it adequately but to me what it actually cost now this legislation in one respect is an improvement over what's gone before because they do provide a system whereby at some point we will know what the actual costs are now the problem is they then deduct from those actual costs all of the federal monies that would otherwise be received in determining what the state its contribution would be and that's a violation of two federal funding restrictions the first one being seventy nine o two which says specifically which prohibits exactly what  sixty four requires and that is consideration of federal funds in determining the amount of state aid that scene language runs directly in conflict with the supplement not supplant restrictions which are set forth in each of the federal funding any program whatsoever and any level of funding whatsoever so long as it funds that program will purchase the contempt what i'm saying is assuming that you have an adequate program which the courts have thus far assumed that they have a challenge sure to be evidence to an adequate i've never heard of an educator who thought their resources and programs were adequate that that may be the case sure but we're not even at that point in all the evidence that i was sensation and a point that you made and that is that  those districts that do not have adequate amount of resources that they can get in turn from a state pool it's cap for that yes and the problem with that there is that they used there you would agree vast adequate to the extent it does what judge market is requiring which attorney what the actual costs are then yes it seems to me that is responsive to what the court was asking for so would be a reason way of determining what the actual costs are it would depend upon what the models are that that state comes up with but it seems to me that that's on the path toward responding to that part of the court's order probably more reasonable and than the cost that  numbers the numbers that are proposed in each between sixty four are lower than than any of them have provided now with respect to to the supplement not supplant it's absolutely clear that if you're taking title one money and paying for programs in title one schools that are being paid for by state dollars in non title one schools you've got a clear supplement not supplant the problem all the cases we cited why you versus bell indiana versus bell show that that true and it's true whether or not you're talking about bilingual funds which was indiana versus bell which is also discussed specifically in the statute and that brings me if i may and you know come back some other points if i have time to the to the miss titration i was talking about restriction applies to bilingual fonts and they cite this on be circular and they cite half of the paragraph and you'll see that if you compare that to the actual language of the circular the part they leave out is makes clear that the exception that's referred to there applies to title seven not to title one and its oath title seven as existed and this is a quote from the circular prior to and says he'll be old title seven dealt with direct grant from the department of education it still exist as part of title three but it's a part of title three that is never been activated arizona doesn't get its monies from that part of title three the part of title three the arizona does get its monies from has the supplement not supplant restriction and it doesn't have that exception for bilingual funds the short of it is that you cannot avoid the federal restrictions that are imposed upon that five hundred million dollars th arizona receives in yulee and it was no abuse to find that h b twenty sixty five who are filing that federal law indeed it would have been an abuse of discretion for the district court judge collins to have held otherwise i guess i guess the feds come around  and do audits that with this is all about they do audits but even before we get to that point because one of the arguments is well let's just wait and see if the federal government not so much of anything big party may not do anything well they might not do anything but the impact is felt immediately because under the statu when school districts submit their budget request they have to duck that money right now so the harmful impact is felt at the moment that they submit their budget request and that's one of the problems with the statute in your honor for me address the question of a changed circumstances it seems to me that there would be an argument for change circumstances if you could come and work and we just focused on a gallus which i don't think is the appropriate focused because this is a state funding scheme that's what you're to marcus was talking about and that's what part's going to stay just take your analysis well here's my point even with respect to nogales the order is that you have to have a rational connection between the amount you're spending and what it actually cost and if you look very closely at everything in the superintendent's briefs and in the intervening brief you want to actually find anything that says we have gone out and we have determined what it actually costs to adequately educate e l o learners and here's the amount of money what they say is you know what we're doing pretty good and we've been able to do that with the money we have but they don't make the actual statements they would satisfy you might provide a change circumstance as you're on it was talking about so i think it's inappropriate to focus just on our bows for many reasons not the least of which that the parents themselves assume you have to decide the h p twenty sixty four issue if you read the lead argument in the universe brief for example the heading is the reforms are very so in education funding since two thousand and the adoption of the act in two thousand and six satisfied the judgment and resulting orders it made sense for the district court to first consider the legal issue which was the adequacy of each between sixty four and four even getting any question  i just have one observation just seems to be an extremely awkward way of trying to get a policy with regard to english as a language  to be able to get the both positive the legislature and the governor and the court all to agree on a particular method of doing  it seems like there ought to be a better way than what we're doing here well i wouldn't disagree with that your honor but again i would point out that in many respects what the federal court has required is is not that intrusive what the is you decide what your programs are and you decide what those cost and that's what the court has been waiting to see and that's what's not been provided to date thank you thank you feeling that that's the after the last rational like a party if they like something have a judge which is point out something happened down the line either politically or whatever that positions change down further further down the line the positions man change your honor but the fact remains these are the thank you your honor just to clarify something in the original two thousand opinion there were tons and tons and tons of findings that were made all of them dealing  that those findings are no longer true is something that you've already alluded to is the fact that we the state of arizona has provided millions and millions of dollars of additional money not just in the group the weights but we have fifty percent of its money there in any event there's been a tremendous amount of additional resources that have been provided one of the things that occurred early on when the motion for sanctions was initially we said that in addition to the base level of funding there is fourteen hundred dollars per student of ailill out there between state and federal sources in there are and there is now adequate funding in the school districts and we have asked for a hearing so that we could show what the effects of that was going to be and we were never provided hearing on that particular issue thank you your hon