By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Hoping to force the issue, Arizona schools chief Tom Horne filed suit late Wednesday to get a court to rule that any school that doesn’t use “structured English immersion” to teach students who are not proficient is violating the law.

In new legal papers, Horne said the Creighton Elementary School District in Phoenix is using a “dual language model” where students are taught academic subject matter in classrooms featuring both English and their native language, usually Spanish.

But Horne said all that violates Proposition 203, a 2000 voter-approved measure that spells out “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, however, have relied on a 2019 law that 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” Horne contends is illegal.

So now he wants a Maricopa County Superior Court judge to declare that 2019 law to be unconstitutional if it is being interpreted to amend the 2000 ballot measure.

That’s because 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.”

Horne contends Creighton is not alone in violating the law, having previously named about two dozen other districts in the same situation. But he told Capitol Media Services his decision to sue only that district “was pretty random” in order to quickly get the issue before a judge.

“If I get a declaration, I win on everybody,” he said.

How many schools would be affected if Horne wins the lawsuit is unclear.

The Department of Education lists just 10 schools who the agency says are violating state law by simply enrolling their students in dual-language models.

There are, however, many more schools that have dual-language instruction. And that, by itself, is permitted if the school gets a signed waiver from the parents from the structured English immersion requirement.

But the department says state law allows schools to seek such waivers only in three circumstances: the student already has a working knowledge of English, the student is at least 10 years old, or the student has special needs. And the agency says it will begin auditing those districts to be sure only students qualified for waivers are being exempted from structured English immersion.

The lawsuit also names Gov. Katie Hobbs as a defendant based on what his lawyers said is her constitutional obligation to “take care that the laws be faithfully executed.” But it’s not just that.

“In addition, the governor has been touting dual language even though she knows, or should know, that it is contrary to law,” the lawsuit says.

The governor, however, was unapologetic.

“Gov. Hobbs is proud to stand by dual language programs that help ensure the next generation of Arizonans have an opportunity to thrive,” said press aide Christian Slater.

“Dual language programs are critical for training the workforce of the future and providing a rich learning environment for Arizona’s children,” he said. “She will not back down in the face of Superintendent Horne’s lawsuit.”

Also named as a defendant is Attorney General Kris Mayes.

She had no comment. And there was no immediate response from the Creighton district.

The battle has been brewing for months.

Horne announced in June that any school teaching “English language learners” in what has come to be known as a 50-50 dual-language model are breaking the law.

More to the point, in a letter to school districts he said schools that don’t use immersion programs could lose access to special funds to teach English. And Horne said the law also allows any parent to sue any school board member or any administrator responsible for violating Proposition 203, with that individual held personally liable for damages.

The following month, however, Mayes issued a formal opinion declaring Horne has no authority to cut off funds to schools that don’t use structured English immersion. She said only the state Board of Education has the authority to declare that a school district is not complying with the 2000 voter-approved law.

She cited that 2019 law reducing the amount of time students must spend in structured English immersion classes and that also gave the state Board of Education flexibility to develop alternatives, including the “dual language model.”

Mayes sidestepped the question of whether that model complies with what’s required by Proposition 203. She said that is a question of fact and not law.

But the attorney general said the state board did conclude dual language programs are acceptable, that school districts “remain entitled to rely on that approval” — and that Horne can’t do anything about it.

“Only the (state) board has the statutory authority to exclude the dual language model from the list of approved SEI models and to declare a school noncompliant and ineligible for ELL funds,” Mayes wrote. “The superintendent does not have authority to impose any consequences on, or withhold any monies from, a school district or charter school that utilizes a board-approved SEI model absent a finding of noncompliance with the board.”

Horne said Wednesday a ruling in his favor resolves the dispute and he would expect Creighton — and all other districts not teaching English immersion — to fall into line.

The issue, he told Capitol Media Services, is more than a spat about the law. He contends 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.

“What the studies show is that you’re better off falling a little behind academically and conquering English quickly and then catching up than trying to keep up with your academics and never learning English, or it takes too long to learn English,” he said.

Not everyone agrees.

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.

Horne said he is seeking a quick hearing in hopes of getting the question resolved.

There was no immediate response from either Hobbs or Mayes.