By Howard Fischer
Capitol Media Services
PHOENIX -- State schools chief Tom Horne is making a last-ditch effort to force school districts to use only "structured English immersion'' to teach students who are not proficient.
In a new filing, Horne wants the Arizona Supreme Court to rule that he has inherent authority to enforce a 2000 voter-approved law 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.''
And he also wants to be able to sue Gov. Katie Hobbs and Attorney General Kris Mayes who he contends have "aided and abetted'' school districts who he said are ignoring that law -- and ignoring his demands they obey it.
So far, though, Horne has been unable to get his day in court on his claims. Both a trial judge and the state Court of Appeals said his objections to what the schools are doing are legally irrelevant because nothing in state law authorizes him to enforce what he believes is the law.
And his claims against the governor and attorney general have fared no better, with the appellate judges saying neither have any actual authority over what schools teach.
Now Horne wants the state's high court to reverse all that and let him proceed.
Central to the issue is Proposition 203, the 2000 ballot measure that was designed to prescribe only one acceptable method of teaching English to those coming from homes where that is not the predominant language: Put new "English language learners'' as they are referred to in state law, in a class together for four hours a day where they are taught English.
Horne said that mandate makes sense.
"It gives them the amount of English instruction that they need,'' he told Capitol Media Services. "And for beginners, they do need four hours so that they can learn English quickly and then succeed academically.''
But that practice caused concern among some education officials who said separating these youngsters from their peers was a form of segregation.
They also argued that the system meant these students were not getting instruction in their other subjects.
So in 2019, state lawmakers agreed to allow the state Board of Education to adopt and approve alternate "research-based'' models that involve two hours a day of English instruction, 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 filed suit in 2023 against the districts, the governor and the attorney general.
He cites data from the Creighton Elementary School District, one of those he sued for using a dual language approach, which he said shows the rate of English language learners becoming proficient in one year "at the pathetically low rate of 5.1%.'' By contrast, Horne cited five districts using structured English immersion which had rates ranging from 23.9% to 33.0%.
But so far he has been unable to make his arguments about the legal and educational merits of English immersion. That's because courts have said if anyone has the ability to sue over what schools are doing, it is the state Board of Education, not he as superintendent of public instruction. And the board has not sued.
Horne, through attorney Dennis Wilenchik, said that makes no legal sense.
He told the justices that Arizona law says it is the schools chief who determines whether school districts and charter schools are complying with laws dealing with English language learners.
"So, under the interpretation of the Court of Appeals, the superintendent is duty-bound to go to a district and say, 'You're not complying with state laws applicable to English language learners,' '' wrote Dennis Wilenchik who is representing Horne.
"But the district can say, 'We're going to continue doing what we're doing and what are you going to do about it? ' '' he continued. "That is the case now unless this court grants review.''
Conversely, Horne said if he knows that districts are not complying with the law but does nothing there could be penalties if it was determined "that his failure to implement the law was willful and repeated.''
And what of the 2019 law?
Horne contends none of that specifically mentions bilingual or dual-language instruction.
But even if it did, he said, the Arizona Constitution forbids the Legislature from tinkering with anything approved by voters unless the measure "furthers the purpose'' of the original measure. And allowing districts to ignore the mandate for structured English immersion, he said, does not.
That, then, leaves his argument to the state's high court why he should be able to sue both Mayes and Hobbs.
Horne said Mayes issued a legal opinion that empowered districts to put students into dual language programs, even without seeking a waiver from the immersion instruction from their parents.
And Hobbs?
"It was her advocacy for dual language, even though it was illegal, that helped the districts decide to violate the law,'' Horne said.
"After all, if the governor is for it, how bad can it be?'' he continued. "Instead of advocating for illegal action, the governor should have been calling on the attorney general to enforce the law.''
Horne has another request of the justices.
He wants them to reverse the decision by Maricopa County Superior Court Katherine Cooper, who was the first judge to toss his case, that he pay $120,000 to those he sued. And the state Court of Appeals not only upheld that order but said the defendants also can seek reimbursement for what they spent on the appeal.
Either way, it's the taxpayers on the hook. Horne said because he sued in the name of the Department of Education, it is that agency -- and not he -- which owes the money.
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