By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — State schools chief Tom Horne has no legal authority to sue to force all Arizona schools to use only “structured English immersion” to teach the language to students who are not proficient, a judge has ruled.

In a 14-page ruling released Friday, Maricopa County Superior Court Judge Katherine Cooper said nothing in state law allows Horne to ask her to declare school 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.

Horne reacted angrily to the ruling and issued an ominous warning.

“The districts that opposed our position will regret this development,” he said in a prepared statement.

“A near identical action will be filed by a parent,” Horne said, who presumably does have a right to sue. “And this will have much worse consequences for the district.”

And so his message isn’t lost, his press release said new legal action “paves the way for potentially draconian measures to be taken against school board members who fail to follow the law.” That, he said, includes the possible legal remedy of school board members being removed from their position and being barred from running for any public office in education for five years.

Horne’s comments about possible “draconian” actions against school officials in a new lawsuit drew a slap from Attorney General Kris Mayes, one of the people he unsuccessfully sued.

“The attorney general certainly doesn’t think those types of comments are helpful,” said press aide Richie Taylor. “She believes our public schools need support from state government, not threats.”

And any action against schools and school officials still would have to prove they actually are acting illegally, proof the judge said may be lacking.

At the heart of the lawsuit is his claim 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 that violates Proposition 203, a 2000 voter-approved measures 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.”

But districts have relied on a 2019 law that 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 have argued — and are 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.

He pointed out the Arizona Constitution forbids lawmakers from altering what voters have approved unless it “furthers the purpose” of the original law. And Horne 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.”

Cooper, for her part, did not get into the merits of that claim.

Instead, she pointed out 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.

In this case, however, the state board has not only adopted rules permitting alternatives to English immersion but has chosen not to sue over what Horne contends are violations of the initiative.

“The state board has sole authority to adopt and approve research-based models of structured English immersion for school districts and charter schools to use subject to statutory minimum requirements,” Cooper said. And she said the Legislature has set up a system for monitoring compliance.

The judge said there is a role for the Department of Education, which Horne heads, to monitor compliance.

But she said the law does not provide any enforcement power, instead requiring the agency to refer the school district to the state Board, which can determine if it is out of compliance. And if the board does, the penalty is that the school will not continue to get funds from a special “English language learner” fund.

That question of his right to sue aside, Cooper said there’s another flaw in Horne’s lawsuit.

She pointed out his complaint says school districts are violating Proposition 203 by using the dual-language model without first getting a waiver from parents specifically opting out of English immersion. Yet she said even Horne acknowledged the dual-instruction model approved by the board does not require such a waiver.

“Thus, in alleging that the school districts are implementing the dual-language instruction model without a waiver, Superintendent Horne has alleged that the school district are, in fact, doing their job,” the judge wrote.

And there’s something else. Cooper said Horne lawsuit is flawed because 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 Gov. Katie 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 Horne never alleges 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 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.”

Hobbs praised the ruling.

“This lawsuit was an attempt to take a proven and successful program away from Arizona’s students and force them into programs that are outdated and ineffective,” said press aide Christian Slater. “Gov. Hobbs understands the important role dual-language programs play in the success of students and the state as a whole.”