Arizona schools chief sues over dual language program for English learners

PHOENIX — State schools chief Tom Horne filed suit late Wednesday, trying to get a court to rule any school that doesn’t use “structured English immersion’’ to teach students who aren’t proficient in the language is violating the law.

The Republican elected official’s lawsuit says Creighton Elementary School District in Phoenix is using a “dual language model’’ in which students are taught academic subject matter in classrooms featuring both English and their native language, usually Spanish.

Horne said that violates Proposition 203, a 2000 voter-approved measure 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.’’

School officials in Creighton and elsewhere, however, have relied on a 2019 state law which reduced the amount of time students must spend in structured English immersion classes and gave the Arizona Board of Education flexibility to develop alternatives.

They have said — backed by Democratic Attorney General Kris Mayes — that one of the alternatives is the “dual language model’’ Horne contends is illegal.

Horne now wants a Maricopa County Superior Court judge to declare the 2019 law unconstitutional if it is being interpreted to amend the 2000 ballot measure.

That’s because the Arizona Constitution forbids lawmakers from altering what voters have approved unless it “furthers the purpose’’ of the original law.

Horne said that cannot be the case here because the purpose of Proposition 203 “is that children be taught in English for the entire school day, in order for them to quickly become proficient in English.’’

Other districts

Horne contends Creighton is not alone in violating the law, having previously named about two dozen other districts in the same situation. But he told Capitol Media Services his decision to sue only that district “was pretty random’’ in order to quickly get the issue before a judge.

“If I get a declaration, I win on everybody,’’ he said.

How many schools would be affected if Horne wins the lawsuit is unclear.

The Department of Education lists 10 schools, none in the Tucson area, he says are violating state law by enrolling their students in dual-language models without getting waivers.

There are, however, many more schools, including in Southern Arizona, with dual-language instruction. That, by itself, is permitted if the school gets a signed waiver from parents from the structured English immersion requirement.

But the department says state law allows schools to seek such waivers only in three circumstances: The student already has a working knowledge of English, the student is at least 10 years old, or the student has special needs. Horne’s office says it will begin auditing the districts with waivers to be sure that only qualified students are being exempted from structured English immersion.

Hobbs “proud to stand by dual language”

The lawsuit also names Democratic Gov. Katie Hobbs as a defendant based on what Horne’s lawyers said is her constitutional obligation to “take care that the laws be faithfully executed.’’

“In addition,” the lawsuit says, “the governor has been touting dual language even though she knows, or should know, that it is contrary to law.”

Hobbs is unapologetic. “Gov. Hobbs is proud to stand by dual language programs that help ensure the next generation of Arizonans have an opportunity to thrive,’’ said her press aide Christian Slater.

“Dual language programs are critical for training the workforce of the future and providing a rich learning environment for Arizona’s children,’’ he said. “She will not back down in the face of Superintendent Horne’s lawsuit.’’

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Also named as a defendant is Attorney General Kris Mayes. She had no comment.

The Creighton district is reviewing the issue with its legal counsel, but the dual language model it is using was approved by the state Board of Education, said district spokeswoman Emily Waszolek. “We always strive to do what is best for our kids. We will continue to support parent choice and the programs that are supported by our community and families,” she said.

Horne, Mayes dispute

The dispute has been brewing for months.

Horne announced in June that any school teaching “English language learners’’ in what has come to be known as a 50-50 dual language model is breaking the law.

In a letter to school districts, he said schools that don’t use immersion programs could lose access to special funds to teach English. Horne said the law also allows any parent to sue any school board member or any administrator responsible for violating Proposition 203, with that individual held personally liable for damages.

The following month, however, Mayes issued a formal opinion declaring Horne has no authority to cut off funds to schools that don’t use structured English immersion. She said only the state Board of Education has the authority to declare a school district is not complying with the 2000 voter-approved law.

She cited the 2019 law.

Mayes sidestepped the question of whether the dual language model complies with Proposition 203’s requirements. She said that is a question of fact and not law.

But she said the state board concluded that dual-language programs are acceptable, that school districts “remain entitled to rely on that approval,’’ and that Horne can’t do anything about it.

“Only the (state) board has the statutory authority to exclude the dual language model from the list of approved SEI (Structured English Immersion) models and to declare a school noncompliant and ineligible for ELL (English Language Learner) funds,’’ Mayes wrote. “The superintendent does not have authority to impose any consequences on, or withhold any monies from, a school district or charter school that utilizes a board-approved SEI model absent a finding of noncompliance with the board.’’

Teaching methods debated

Horne said Wednesday that a court ruling in his favor would resolve the dispute and that he would expect Creighton — and all other districts not teaching English immersion — to fall into line.

He said the issue is more than a spat about the law. He contends studies have shown it is more effective to have students learn English quickly by being immersed in language lessons, even if they fall behind their peers in academic subjects.

“What the studies show is that you’re better off falling a little behind academically and conquering English quickly and then catching up than trying to keep up with your academics and never learning English, or it takes too long to learn English,’’ Horne said.

Not everyone agrees.

There was an effort in 2020 to put a measure on the ballot to replace Proposition 203 with a requirement for public schools to provide dual language programs for both native and non-native English speakers. Sponsored by a Republican legislator, it would have spelled out that schools must provide “effective and appropriate instructional methods.’’

It was approved by the House Education Committee on a 10-1 margin but died when it could not get the required hearing by the Rules Committee.