Arizona gov, AG ask judge to toss suit vs. dual-language classes

PHOENIX — Gov. Katie Hobbs and Attorney General Kris Mayes want a judge to toss a lawsuit filed against them by state schools chief Tom Horne because they can’t give him the legal relief he wants: an end to public schools’ dual-language programs he contends are ineffective and illegal.

Hanging in the balance are more than the practices for teaching English in the 10 districts that Horne sued. Whatever the court decides could determine whether other districts, wanting something different than structured English immersion, will be allowed to offer dual-language lessons to the approximately 95,000 students classified as “English language learners.’’

The litigation stems from the fact that several Arizona 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, a Republican, 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.’’

He wants Judge Katherine Cooper to rule any actions to the contrary are illegal. A hearing has been set for January.

“She has no such power”

In filings in Maricopa County Superior Court, neither the governor nor the attorney general, who are Democrats, address Horne’s claim that schools that do not use “structured English immersion’’ to teach students who are not proficient are acting illegally.

Instead, an assistant attorney general, Nathan Arrowsmith, said Horne has no legal right to sue. He said if Horne thinks some schools are out of compliance, there is only one legal remedy: To take the case to the Arizona Board of Education, which approved using the dual-language model.

“The superintendent is not powerless when it comes to board policy,’’ Arrowsmith wrote of Horne, whose title is superintendent of public instruction.

“He is a member of the board and is therefore able to directly influence board policy. However, he has declined to take any action in his capacity as a board member and instead brought his disagreement with the board of the dual-language instruction model before this court.’’

Horne’s problem with Mayes, Arrowsmith wrote, appears to be that she wrote a legal opinion saying he has no authority to override the board’s actions approving the dual-language model. Mayes said school districts “remain entitled to rely on that approval,’’ and that Horne can’t do anything about it.

But simply writing a legal opinion, Arrowsmith said, provides no grounds to sue.

Horne’s case against Hobbs is even more tenuous, said an attorney for the governor, Andrew Gaona, in his own legal filings.

In suing Hobbs, Horne argued she has a constitutional obligation to “take care that the laws be faithfully executed.’’

Horne’s lawsuit says, “The governor has been touting dual-language even though she knows, or should know, that it is contrary to law.”

Gaona, however, said the whole dispute has nothing to do with Hobbs.

“The complaint alleges no facts establishing that Gov. Hobbs implemented Prop. 203 or has any power to control how anyone else implements Prop. 203,’’ Gaona said, adding “she has no such power.’’

State board approved program

Hobbs’ attorney also said if Horne is upset that the state Board of Education won’t take action against the schools, he should sue it. He said the only way Horne can get the legal relief he wants — a declaration against the use of dual-language instruction — is to sue the board for approving it, something he has refused to do.

Horne, however, said there’s a good reason he didn’t do that.

“The executive director told me that the board will take no action until there’s a court decision,’’ Horne told Capitol Media Services. “They’ll do whatever the court decides. It seems kind of silly to name them as a part of a lawsuit.’’

He insisted there’s nothing legally wrong with filing the lawsuit he did against everyone else to get dual-language instruction declared illegal.

The 2000 initiative created a requirement for a rigid bloc of instruction of at least four hours a day in classrooms whose students are not proficient in English. The idea was that a single year of immersion would result in proficiency quicker than bilingual-education programs where instruction was offered in both English and the language spoken by students when they enrolled in school.

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Dueling data claims

Theoretically, that was designed to provide proficiency in just one year. That proved not to be true, with the Arizona Department of Education finding that in 2018 just 14% of “English language learner’’ students were proficient enough to leave the program.

That led to questions about why the students were being segregated, especially if the language instruction meant they were not keeping up with their peers in other subjects.

A 2010 study by researchers at Arizona State University said ELL students are “physically, socially, and educationally isolated from their non-ELL peers.’’

In 2019 then-Gov. Doug Ducey, a Republican, signed legislation allowing the state board to adopt and approve alternate “research-based’’ models that involved just two hours a day, giving school officials more flexibility in how to schedule that time. It allows classrooms mixed with students whose native language is English as well as those from homes where that is not the case.

That led to the dual-language model adopted by the board.

Horne said he has data showing structured English immersion produces better results. But he said that is legally irrelevant to his bottom-line claim that what the Legislature approved and the state board adopted are illegal.

“The language of the initiative passed by over 60% of the voters says that English language learners will be instructed in English by being taught in English,’’ Horne said. “The initiative means what it says.’’

Voter-approved law

He said it doesn’t matter that the Legislature authorized it.

The Arizona Constitution spells out that lawmakers cannot repeal anything approved by voters.

Alterations are acceptable. But the Voter Protection Act says those are permitted only if they “further the purpose’’ of the original initiative, something Horne said this does not do.

To back up that argument, he provided the court with a declaration from Margaret Dugan. She said she not only participated in writing the 2000 initiative but is now the chief deputy superintendent in Horne’s Department of Education.

Dugan said it is clear that neither the 2019 law nor the 2020 rules adopted by the Board of Education meet the requirements of the ballot measure that all children shall be taught English by being taught in English and that all children shall be placed in English-language classrooms.

“This is the purpose of the initiative: that children should no longer be taught in bilingual or dual-language classes, where they are taught part of the day in Spanish, but should be taught the entire school day in English, so that they would quickly become proficient in English,’’ Dugan said.

Horne has something else: a memo from Hannah Nies, general counsel to the Arizona Legislative Council. She said if the dual-language model allows students to be taught subject matter in a language other than English, “the model likely violates Proposition 203.’’

In a separate legal filing, Robert Haws, representing the schools that Horne sued, said they are doing nothing wrong.

He cited the 2019 law directing the Board of Education to develop “evidence and research-based’’ models for teaching English. Board members complied the following year — before Horne was schools chief and a member of the board — with the dual-language model, a decision that stands.

If Horne has a problem with all that he should sue the board, said Haws, echoing the other attorneys.

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. It 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.