By Howard Fischer
Capitol Media Services
PHOENIX -- State schools chief Tom Horne has no legal power to force school districts to use only "structured English immersion'' to teach the language to students who are not proficient, the Court of Appeals has decided.
In a new ruling Thursday, the judges said it is the state Board of Education that has the authority to decide what methods of teaching English are acceptable. And the board, against the wishes of Horne, has provided a variety of other options.
But Judge Paul McMurdie, writing for the unanimous three-judge panel, said the school chief's objections are legally irrelevant. He said nothing in state law specifically authorizes Horne to go to court to enforce what he believes is the law.
And there's something else.
In making his case, Horne sued not only various school districts that he contends are breaking the law but also both Gov. Katie Hobbs and Attorney General Kris Mayes. Only thing is, McMurdie said, neither of them have any actual authority over the English language program and what schools teach.
Horne said this isn't the end of his fight to force schools to use what he said voters approved in 2000, saying he is weighing an appeal to the state Supreme Court.
And, if nothing else, he noted that his wife, Carmen, who is an attorney, is representing parents -- who he believes do have standing -- in a separate case over how English is taught. But Horne acknowledged that case, too, is on appeal after being thrown out of court.
But, for the moment, the law Horne doesn't like remains in effect -- and he is now on the hook for the legal fees of everyone he sued.
Central to the case is Proposition 203, a 2000 voter-approved measure 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 school officials in several district have relied on a 2019 law which allowed the state board to adopt and approve alternate "research-based'' models that involve two hours a day, giving school more flexibility in how to schedule that time. It also allows classes mixed with both students whose native language in not English as well as those from homes where that is not the case.
Based on that, the board concluded -- backed by Mayes -- that one of the acceptable alternatives is a 50-50 "dual language model,'' where students can both learn English but also keep up with their peers on other subjects.
Horne, for his part, argues that 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 the academic subjects. And, more to the legal point, he contends that the 2019 law is unconstitutional because it is being interpreted to amend the 2000 ballot measure.
That's based on the fact that the Arizona Constitution forbids lawmakers from altering what voters have approved unless it "furthers the purpose'' of the original law. And the state schools chief said that cannot be the case 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.''
But the Court of Appeals ignored all that, instead focusing on whether Horne should even be in court.
"The superintendent has no independent policy-making authority,'' McMurdie wrote. "His authority is limited to executing, under the direction of the board, the policies that have been decided on by the board.''
And there's something else. The judge noted it is the board -- and not the schools chief -- that has express authority to contract, sue and be sued.
McMurdie acknowledged that the superintendent is responsible for identifying "English learners'' -- those who are not proficient -- and overseeing the funding by the Department of Education funding, administration and monitoring role.
"But the superintendent has no role in determining the instructional models available to schools,'' the judge said. "The Board (of Education) alone is allowed to adopt and approved lawful structured English immersion and non structured English immersion education models for the schools' use.''
Then there's that issue of whether Horne had legal "standing'' to sue Mayes and Hobbs.
In the first case, the schools chief sued the attorney general because she issued a legal opinion that the state board -- and not Horne -- has sole authority over English immersion models. And he sued Hobbs claiming that the governor "has been touting dual language even though she knows, or should know, that is contrary to law.''
McMurdie pointed out that Arizona law provides such standing only to those who have a legitimate interest in the controversy. Beyond that, it requires that someone filing suit must allege a personal injury traceable to the conduct of those being sued.
That, said the court, doesn't exist here.
"The superintendent has not alleged that he has or will suffer an injury by the attorney general's written opinion,'' McMurdie said.
Nor was the appellate court impressed by the claims against the governor.
McMurdie acknowledged that the Arizona Constitution, as Horne points out, does require that all laws be "faithfully executed.'' And her duties also include appointing members of the Board of Education beyond Horne who serves based on his position.
"But the superintendent's pleading seeks not relief for the governor's exercise of her duties and powers,'' the court noted. "He simply complains that she has publicly supported the 50-50 model.''
And McMurdie called it "speculative'' that the governor could use her power to force the board to take an action to side with Horne.
The court also separately said he has no standing to sue the school districts that have chosen the 50-50 model.
Finally, McMurdie said even if he and his colleagues were to conclude that Horne is entitled to sue, they could not do what he asks: declare the 50-50 model illegal.
"The most we could do would be to reverse the dismissal and permit the superior court to decide the merits,'' he said, the first court that dismissed his lawsuit last year.
In that case, Maricopa County Superior Court Katherine Cooper ordered Horne to pay $120,000 in legal fees to those he sued. The appeals court on Thursday not only upheld that order but said that the defendants now can seek reimbursement for what they spent on the appeal.
Horne said because he sued in the name of the Department of Education, it is that agency -- and not he -- who owes the money
Not everyone agrees with Horne's contention that English immersion is the best method to teach the language.
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. And it spelled out that schools must provide "effective and appropriate instructional methods.''
"This is a simple bill that says all the kids should have the equal chance to learn,'' said John Fillmore, then a Republican representative from Apache Junction.
The problem, Fillmore said, is when students are confined to classrooms where English is the only thing being taught they are not keeping up with their counterparts who are in classes learning math, science and other subjects. That, he said, means they end up "being held back.''
And Fillmore said his measure would create something else: an opportunity for students who come to school knowing only English to pick up a second language.
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 which was chaired by Anthony Kern, then a state representative out of Glendale.
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