Habla Hymanese?

Mark Hyman’s absolutely right: checks and balances are essential limitations that all branches of government must honor. And the case he cites in his recent editorial supports his point, but in a way exactly contrary to his interpretation of it.

Hyman performs a variation on the “activist judges” conservative riff by decrying a recent decision by a federal judge concerning the funding of ESL teachers in Arizona schools. Recently, Judge Raner Collins held that the state of Arizona could be fined millions of dollars if the legislature and governor don’t get together to fully fund instruction in English for the thousands of non-native speakers in Arizona public schools. According to Hyman, this is a case of an activist judge violating separation of powers by forcing the legislature to pass laws crafted by the judge.

But that’s not what’s happening. The controversy is part of the fallout from the lawsuit Flores v. Arizona. The issue was that Arizona implemented a high stakes graduation test that all public students had to pass in order to get a diploma. But many parents of non-native speakers of English noted that there wasn’t enough instruction to help their kids get up to speed in English, a situation that set them up for failure and dropping out of school when the test rolled around.

Hyman notes that the lawsuit was filed in 1992, but then erroneously says that “a court battle has since raged.”

Not true. A decision was made in 2000. The judge found that the state of Arizona had not funded ESL instruction adequately. What has happened since then is a lot of foot dragging, particularly on the part of the Republican legislature. Despite periodical prodding by the courts, the legislature and governor have not come up with a plan to fully fund ESL instruction.

In fact, the legislature reneged on payment for a study of the issue when the results didn’t come back the way they wanted. The National Conference of State Legislatures was commissioned to do a study of how to best fund ESL education. When their report wasn’t to the liking of the legislature, they declared the study “flawed” and refused payment.

As Judge Collins said in his ruling, there is no telling how many non-native English speakers have been held back or dropped out of the school system due to lack of resources to fund proper instruction. The blame for this lies squarely on the shoulders of those politicians who’ve tried to shortchange Arizona’s ESL students. The threat of fines is simply there to get the legislature and the governor to finally step up to the plate and abide by the ruling made by the court six years ago.

So yes, Hyman is right: all branches of government must abide by the system of checks and balances. But that means that when the judiciary finds a current law or practice illegal, it's incumbent on the legislative and executive branches to remedy the problem, not drag their feet (and punish children) because they disagree with the ruling.

And that’s The Counterpoint.

Hyman Index: 2.26