By Howard Fischer
Capitol Media Services
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.
The new order comes more than two months after Maricopa County Superior Court Judge Katherine Cooper ruled that 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.
More to the point, Cooper said nothing in state law even allowed Horne to go to court and ask her to declare that schools 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.
And Cooper said even if Horne did have such a right, it really doesn't matter. She said he has failed to establish he has any sort of "justiciable claim'' that a court could resolve.
On Wednesday, Horne said 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. The schools chief said he has filed an appeal.
Even if that appeal fails, Horne has engineered a separate lawsuit -- this one filed on behalf of a parent by his wife, attorney Carmen Chenal -- which raises the same underlying legal issues.
That case has yet to go to a judge. But even if Maricopa County Superior Court Judge Melissa Julian agrees with his legal theories, that still leaves Horne -- or, more to the point, Arizona taxpayers because he sued in his official capacity -- on the hook for the legal fees in the first case unless it is overturned.
At the heart of both lawsuit is his 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 all that violates Proposition 203, a 2000 voter-approved measures which 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.''
But 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 Mayes -- that one of the alternatives is the "dual language model,'' the one that Horne contends is illegal.
Horne responded by asking Cooper to declare that 2019 law to be an unconstitutional amendment of the 2000 ballot measure.
Cooper, however, sidestepped that claim, pointing out that the superintendent of public instruction has only those powers granted by the Legislature. And Cooper said that list does not include the right to sue anyone at all.
Anyway, the judge said, the question of enforcing Proposition 203 rests not with Horne but instead with the state Board of Education.
But the flaws in his lawsuit, Cooper said, was 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 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 also legally irrelevant.
She pointed out that Horne never alleges that she can control these programs. And the judge said the schools chief offers no basis for an argument that Hobbs indirectly controls the actions of the state board because she appoints its members.
Horne also named Mayes, arguing that her opinion that the state board -- and not Horne -- 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,'' she said.
"It is not actionable,'' the judge said. "Moreover, the court has no authority to critique an attorney general's opinion.''
Horne on Wednesday insisted there were good reasons for him to name both.
He said that districts would argue they had a right to rely on Mayes' opinion. ``So I had to sue her,'' he said.
And Hobbs? He said there were legal precedents that said if someone doesn't like the opinion of the attorney general ``you sue the governor that enforces it.'' That, said Horne, who is an attorney, was designed to keep the case from being thrown out on a legal technicality.
In the new case, Horne is getting around Cooper's ruling that he has no right to file suit sue 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, Chenal, is representing her. And the lawsuit also includes a 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.
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