Governor asks for judge to toss suit over dual language instruction

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. But that, Horne said, violates 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.’’

And he wants Judge Katherine Cooper to rule any actions to the contrary are illegal.

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

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

“The superintendent is not powerless when it comes to board policy,’’ Arrowsmith wrote. “He is a member of the board and is therefore able to directly influence board policy,’’ he told Cooper. “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.’’

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

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

Andrew Gaona, representing Hobbs, said in his own legal filings that Horne’s case against his client is even more tenuous.

In suing the governor, Horne argued she has a constitutional obligation to “take care that the laws be faithfully executed.’’ But the schools chief is unhappy with her for another reason.

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

Gaona, however, said that misses the point that the whole fight 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.’’

Gaona 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, told Capitol Media Services 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,’’ he said.

“They’ll do whatever the court decides,’’ Horne said. “It seems kind of silly to name them as a part of a lawsuit.’’

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

At the heart of the fight is that 2000 initiative which created a requirement for a rigid bloc of instruction of at least four hours a day in a classroom with only those students 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

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

That led to questions of not just that students were being segregated but that 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 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. And it allows classrooms mixed with both 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 that structured English immersion produces better results. But he said that is legally irrelevant to the bottom-line claim that what the Legislature approved and the state board adopted legal.

“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.’’

And he took a swipe at lawmakers and board members who approved the alternative.

“If the English language is familiar to the people, whoever’s making decisions, it means what it says, he said. “That’s my argument, not what’s science-based or not science-based.’’

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 that is permitted only if they “further the purpose’’ of the original initiative, something he 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 (ITALICS) purpose (ROMAN) 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 that 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 still stands.

And Haws, like the other attorneys, said if Horne has a problem with all that he should sue the school board.

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 and now a state senator.

A hearing has been set for January.