By Howard Fischer
Capitol Media Services
PHOENIX -- Rebuffed by a trial judge, state schools chief Tom Horne is pursuing a new shot at overturning the policies of some schools that use dual-language instruction to teach English.
But he's actually getting someone else to do it for him this time.
In a new lawsuit Monday, a parent is suing the Creighton Elementary School District because it does not use "structured English immersion'' as the only method of providing proficiency in English to students. The lawsuit says that violates the terms of Proposition 203, a 2000 voter-approved measure that spells out how English must be taught.
And it seeks not just an order to overturn the board's decision to use dual-language instruction but also a declaration that the board members, having violated that law, have forfeited their office and cannot run again for five years.
The lawsuit comes less than a month after a judge tossed a similar lawsuit by Horne concluding that he lacked the legal standing to bring such a challenge. He responded at that time with an ominous warning, saying that a "near identical action will be filed by a parent.
"And this will have much worse consequences for the district,'' he said at the time.
But this new lawsuit is hardly coincidental:
- The schools chief told Capitol Media Services he recruited Patricia Pellett who isn't even a parent in the Creighton district but has a son in the Scottsdale district;
- Horne's wife, Carmen Chenal Horne, is representing Pellett;
- The lawsuit includes a legal declaration about the issue from Margaret Dugan who works for Horne as his chief deputy school superintendent;
And Horne even had his office send out a press release announcing the new lawsuit -- the one in which he is not a party -- complete with comments on how if Pellett wins her case there will be "draconian consequences'' because it would immediately disqualify the school board members from holding office.
While this lawsuit is limited to Creighton, a ruling against the district would set the stage for similar litigation against other districts who do not strictly use structured English immersion.
As with the first lawsuit, the dispute surrounds Proposition 200. It spells 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 around the state, however, have relied on a 2019 law which reduced the amount of time students must spend in structured English immersion classes and gave the state Board of Education flexibility to develop alternatives. And they have said -- backed by Attorney General Kris Mayes -- that one of the alternatives is the "dual language model'' that Horne contended is illegal.
Maricopa County Superior Court Judge Katherine Cooper tossed the lawsuit.
She said nothing in state law allowed Horne to ask her to declare that school districts are violating the 2000 ballot measure. Any such right, she said, actually belongs to the state Board of Education which has not sued.
But the new lawsuit, filed by Horne's wife, says that's only partly true.
"The parent or legal guardian of any Arizona school child shall have standing to sue for enforcement of the provisions of this statute,'' the law reads. And schools chief Horne, who also is an attorney, said it is legally irrelevant that the plaintiff in this case does not even have a child in Creighton schools.
Backing up the new lawsuit is that declaration by Dugan who, before she went to work for Horne in 2004 when he was previously the state school superintendent, was co-chair of English for the Children. That is the group that wrote the initiative which became Proposition 200.
Dugan said the purpose of the ballot measure was to end bilingual and dual-language classes, where students are taught academics part of the day in Spanish. Instead, she said, the law says they "should be taught the entire school day in English, so that they would quickly become proficient in English.''
In her role with the Department of Education, Dugan said she participated in crafting the models that implemented the requirements.
"If the school day was partly taught in another language, this would delay their mastery of English,'' Dugan said in her declaration, saying it is no different than models used by adults who want to learn a new language.
"It is also consistent with the doctrine of 'time on task,' where the more times students spend learning something the more they will learn,'' she said. "If only half the school day is spent in classes taught in Spanish, the students will certainly learn English more slowly.''
But the legal situation may not be that clear cut.
State legislators voted in 2019 to reduce the time students must spend in structured English immersion classes. That came amid concerns that students coming to school speaking other languages, separated from their classmates for at least half a day, were falling behind on their academics.
Lawmakers also gave the state Board of Education the flexibility to develop alternatives, including dual-language instruction. That provided an opportunity for students who come to school knowing only English to pick up a second language.
Emily Waszolek, communications director for the Creighton district, said Monday that her board relied on that approval by the state board in choosing dual-language instruction.
In filing suit, however, Carmen Chenal Horne said even if the 2019 law allows dual-language instruction -- a point she is not conceding -- that doesn't matter.
"It is unconstitutional,'' she said. And she pointed out that the only way voter-approved measures can be altered is with a three-fourths vote of both the House and Senate, and only if it "furthers the purpose'' of the original measure, something she said the law does not.
What that also means, Carmen Chenal Horne said, is that any action by the State Board of Education to approve dual-language measures is similarly void because it overrides the 2000 initiative.
Complicating matters is that opinion issued by Mayes.
On one hand, she sidestepped the question of whether the dual-language model conflicts with the initiative. But Mayes said that schools, making decisions on how to teach English, could rely on the decision of the state board authorizing the use of that model.
Mayes, who successfully fought to have Horne's prior lawsuit dismissed, took a swat at the latest litigation.
"Attorney General Mayes believes the superintendent should spend his time supporting our state's public schools rather than soliciting lawsuits against them for using evidence-based dual-language models approve by the state Board of Education,'' said press aide Richie Taylor.
Pellett has been active in issues involving her home district in Scottsdale, including an unsuccessful effort in 2024 to recall school board members. Among the issues she cited was racial and sexual content in the school curriculum.
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