Gov, AG and schools ask court to reject Horne’s lawsuit against dual-language instruction

A lawsuit opposing dual language instruction for immigrant students launched by Arizona Superintendent Tom Horne should be thrown out of court because he has no power to sue in his official role and he failed to sue the right people, the defendants told the court. 

Schools in the Grand Canyon State can choose one of four teaching methods approved by the State Board of Education to help students not yet proficient in English learn the language. One of those is the 50-50 Dual Language Model, under which students are taught half of the day in English and the other half in their native language. 

The model has been growing in popularity and as many as 26 school districts across the state have implemented it so far. But Republican schools chief Tom Horne, long an opponent of bilingual education, believes the teaching method violates state law and should be eliminated. 

A look back: the ongoing fight over ELL teaching methods 

In 2000, an overwhelming 63% of Arizona voters approved Proposition 203, which mandated English-only, immersion-style instruction for students still learning the language. Narrow exceptions were available for students who were at least 10 years old, had special individual learning needs or already knew English. If a student met any of those qualifications, their parents could provide annual written consent to remove them from immersion classes after visiting the school and learning about its educational programs. 

Just nine years later, alarmed over the poor academic performance of ELL students, lawmakers unanimously approved a law that gave the State Board of Education the power to adopt alternative, research-backed teaching models, including dual-language instruction. And while the use of the 50-50 model has grown sharply in the three years it’s been available to public schools, it has faced repeated criticism from Horne, who ran on a campaign to weed out bilingual education, and whose deputy superintendent helped draft Prop. 203. 

Horne argues that the 50-50 model is invalid because the 2019 law that led to its adoption violates the Voter Protection Act, a provision in Arizona’s constitution that bars legislators from amending voter-approved initiatives — like Prop. 203 — unless those changes further the original intent of the initiative and receive the backing of a supermajority of lawmakers. 

Over the summer, Horne threatened to withhold funding from schools employing the 50-50 model. The move earned a quick condemnation from Arizona’s  Democratic attorney general, Kris Mayes, who wrote in a legal opinion that Horne had no authority to take action against schools for a teaching model approved by the State Board of Education, who he reports to. The board publicly rebuked Horne, announcing it had no intention of doing away with the model or punishing schools for not requiring the waivers mandated by Prop. 203. 

Undeterred, Horne took the battle to court, asking Maricopa County Superior Court Judge Katherine Cooper in a September filing to rule the 2019 law unconstitutional and declare that any 50-50 teaching model that doesn’t include waivers is illegal. 

In their latest filings, Gov. Katie Hobbs, Mayes and the school districts who were sued say Horne’s challenge shouldn’t even be considered. 

Mayes: Suing isn’t in the superintendent’s job description

The role of the state superintendent is strictly administrative, the AG’s Office wrote in its motion asking Cooper to dismiss the lawsuit. The Arizona Department of Education, which the superintendent leads, is charged with monitoring schools with an eye towards ensuring that decisions made by the State Board of Education are complied with. 

And it’s the board, not the superintendent, who is responsible for directing the state’s educational policy, Mayes told the court. 

If an issue arises, the superintendent is meant to work with the school district to develop a corrective action plan to resolve the problem. If there has been no change within a year, then the superintendent is required to inform the State Board of Education, which takes over the investigation and ultimately determines whether violations have occurred and whether to withdraw funding. 

Horne’s challenge, Mayes warned in her motion to dismiss, is a clear attempt to circumvent that process.

“In bringing the lawsuit, the Superintendent attempts to sidestep the statutory procedures prescribed by the Legislature for addressing situations in which schools or school districts are allegedly not in compliance with the ELL Statutes,” she said. 

And while state law expressly authorizes the State Board of Education to take legal action to address educational matters, no such power is afforded to the state superintendent, Mayes noted. In fact, lawmakers gave parents and guardians the right to sue to ensure their children receive an English-language public education, but made no move to add that power to the list of superintendent duties. 

“Had the Legislature intended that the Superintendent be able to independently bring litigation in his official capacity to right alleged constitutional or policy wrongs in the education domain, it would have done so,” Mayes said. 

Hobbs: The lawsuit lacks any relevant defendants 

“The complaint has nothing to do with Governor Hobbs,” wrote attorneys for the Democrat in her motion to dismiss. 

Horne reasoned that Hobbs, as the state’s chief executive responsible for enforcing the laws, should be added to the lawsuit. But Hobbs rebutted that she neither oversaw the implementation of Prop. 203 when it was first passed, nor does she now have any hand in overseeing education policy. None of the agencies she directs fall under the purview of the initiative’s requirements, her attorneys contended, and she has no power to influence the decisions of the State Board of Education. 

Therefore, Hobbs’ attorneys argued, she’s not able to resolve the complaint Horne brought. Likewise, neither Mayes nor the school districts named in the lawsuit can change the policy that currently allows the 50-50 instructional model to be used. The State Board of Education, however, which does have the authority to change how English Language Learners are taught, is not part of the lawsuit. 

“The State Board of Education’s absence makes it impossible for this Court to provide effective relief among the existing parties,” Hobbs said. “That’s because the State Board of Education — and only the State Board of Education — has the authority to modify or eliminate the ‘50-50 Dual Language Immersion Model’ that Superintendent Horne attacks.” 

Doug Nick, a spokesman for Horne, told the Arizona Mirror that including the board in the lawsuit was “unwarranted” because its executive director, Sean Ross, said the board would abide by any court decision. 

Hobbs also requested that Horne be required to pay her attorneys’ fees for unnecessarily including her office in the lawsuit. Despite her administration reaching out to Horne about the issue, Horne failed to remove Hobbs from the challenge in either of his two revised complaints. 

Hobbs accused him of suing her for political reasons. The governor has been a vocal proponent of dual-language learning, and her support for the program was cited by Horne as another reason to sue her along with the other defendants. 

Hobbs urged the judge to dismiss the lawsuit, saying that not even two amended versions were enough opportunity for Horne to fix his legal errors. 

“Superintendent Horne alleges that various governmental entities and officials unlawfully implemented Prop. 203,” Hobbs said. “Yet he stumbled out of the gate and then doubled — and even tripled — down on his mistakes. Despite already filing three complaints here, he still names the wrong defendants.”

Schools: Dual language instruction does fulfill the requirements of Prop. 203

In a joint motion to dismiss, the nine school districts sued by Horne for using dual-language instruction, including Flagstaff and Glendale Unified and Creighton Elementary School District, denounced Horne for attempting to circumvent proper procedures and install himself as an authority on English Language Learner programs. 

“By this lawsuit, (Horne) would have the Court anoint him a one-member alternative to the state board of education and side-step all the Legislature’s delineation of powers granted to (the State Board of Education) and the Superintendent,” wrote attorney Robert Haws. “The Court should reject the Superintendent’s impermissible power grab.” 

The school districts added that ruling in Horne’s favor would be a burden on public school officials, who would effectively be forced to answer to both the State Board of Education and the superintendent’s office on their teaching methods for ELL students. They asked the judge to dismiss the case and remand Horne back to debating the validity of dual language instruction with the State Board of Education, of which he is a member. 

Nick told the Mirror that the State Board of Education forced Horne’s hand by informing him that it would not take up a position on the matter until a court decision came down.

In the brief, the school districts argue that Horne’s interpretation of Prop. 203 is flawed. While the superintendent has asserted repeatedly that the initiative mandates English-only instruction, the school districts note that messaging around Prop. 203 sold the idea to Arizona voters as education which mostly involves English, not completely. And, in the end, it’s the understanding of everyday voters that counts. 

“In 2000, voters were informed that Proposition 203 was based on the finding and declaration that ‘young immigrant children can easily acquire full fluency in a new language, such as English, if they are heavily exposed to that language,” explained Haws. “‘Heavily’ means ‘to a great degree,’ but — to the Superintendent’s chagrin — it does not mean exclusively.” 

State law supports that interpretation, Haws added. The legal definition of Sheltered English Immersion — the teaching method which Horne advocates for instead of dual-language instruction and which is demanded by Prop. 203 — describes it as a language acquisition process in which “nearly” all classroom instruction is in English. The definition also notes that teachers may use the child’s native language when necessary, although it also mandates all subject matter be taught in English.

The school districts further argue the 2019 law that led to the adoption of dual language instruction isn’t in violation of the Voter Protection Act because it clearly advances the core intent of Prop. 203: increasing English literacy among non-proficient students.

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