Arizona taxpayers on hook for legal fees after Horne lost English teaching lawsuit

PHOENIX — State schools chief Tom Horne has been ordered to pay more than $120,000 in legal fees over his unsuccessful bid to quash dual-language instruction in Arizona schools.

Arizona taxpayers are on the hook for the money because Horne, a Republican elected in 2022, sued in his official capacity.

The new order comes more than two months after Maricopa County Superior Court Judge Katherine Cooper ruled Horne had no legal authority to force all Arizona schools to use only “structured English immersion’’ to teach the language to students who are not proficient.

Cooper said nothing in state law even allowed Horne to go to court and ask her to declare that school districts are violating a 2000 voter-approved measure dealing with English instruction. Any such right, she said, actually belongs to the state Board of Education.

Even if Horne did have such a right, it really doesn’t matter, the judge said. She said he failed to establish he has any sort of “justiciable claim’’ that a court could resolve.

Horne said Wednesday that Cooper was wrong, not only on her legal conclusion but on awarding fees to attorneys for Gov. Katie Hobbs, Attorney General Kris Mayes and lawyers representing the school districts he sued. He said he has filed an appeal.

Even if that appeal fails, Horne has engineered a separate lawsuit — this one filed by Horne’s wife, attorney Carmen Chenal, on behalf of a parent — that raises the same underlying legal issues. That case has yet to go to a judge.

At the heart of both lawsuits is Horne’s claim that some school districts are using a “dual language model,’’ where students are taught academic subject matter in classrooms featuring both English and their native language, usually Spanish.

Horne contends that violates Proposition 203, the voter- approved measures spelling out that “all children in Arizona public schools shall be taught English by being taught in English, and all children should be placed in English language classrooms.’’

The districts have relied on a 2019 law, which reduced the amount of time students must spend in structured English immersion courses. That law also gave the state Board of Education flexibility to develop alternatives.

The districts argued — and were backed by Democrat Mayes — that one of the alternatives is the “dual language model,’’ the one Horne contends is illegal.

Horne responded by asking Cooper to declare the 2019 law to be an unconstitutional amendment of the 2000 ballot measure.

Cooper sidestepped that claim, pointing out that the superintendent of public instruction has only the powers granted by the Legislature. She said that list does not include the right to sue anyone.

Anyway, the judge said, the question of enforcing Proposition 203 rests not with Horne but instead with the state Board of Education.

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She said the flaws in his lawsuit go deeper than that. She said he sued people who not only have no role in English instruction but can’t order the schools to make the changes he demands.

One of those is Hobbs. Horne, in his lawsuit, said the Democratic governor “has been touting dual language even though she knows, or should know, that is contrary to law.’’

Cooper said even if that is true, it’s legally irrelevant.

The judge pointed out that Horne never alleges Hobbs can control these programs. The schools chief also offers no basis for an argument that Hobbs indirectly controls the actions of the state board because she appoints its members, she said..

Horne also named Mayes, arguing that her opinion that the state board has sole authority over English immersion models is “erroneous.’’ Cooper said that’s not a basis to sue.

“An opinion by the attorney general is just that, an opinion,’’ the judge said. “It is not actionable. Moreover, the court has no authority to critique an attorney general’s opinion.’’

Horne, an attorney, insisted Wednesday there were good reasons for him to name both. He said districts would argue they had a right to rely on Mayes’ opinion. “So I had to sue her,’’ he said.

As for Hobbs, he said there were legal precedents saying if someone doesn’t like the opinion of the attorney general, “you sue the governor that enforces it.’’ That was designed to keep the case from being thrown out on a legal technicality, he said.

In the new case, Horne is getting around Cooper’s ruling that he has no right to file suit by getting a parent to sue the Creighton Elementary School District for its use of dual-language instruction.

Horne’s role in the new case is clear.

He said he recruited Patricia Pellett, who isn’t even a parent in the Creighton district, and his wife is representing her. The lawsuit also includes a declaration about the issue from Margaret Dugan, who works for Horne as his chief deputy school superintendent. Horne had his office send out a news release announcing the suit.

While this lawsuit is limited to Creighton, a ruling against the district would set the stage for similar litigation against other districts that do not strictly use structured English immersion.