Judge dismisses State Superintendent’s English Language Learner suit

A lawsuit filed by Arizona Superintendent of Public Instruction Tom Horne that challenge an English Language Learner model used in schools across the state was tossed out on Friday. Photo by Jerod MacDonald-Evoy | Arizona Mirror

A lawsuit launched by Arizona schools chief Tom Horne last year in the hopes of shutting down dual language instruction across the state was tossed out of court on Friday. 

Maricopa County Superior Court Judge Katherine Cooper, in a 14-page ruling, offered a blistering criticism of Horne’s complaint, repeatedly stating that the Superintendent of Public Instruction has no authority or standing under Arizona state law to challenge the teaching model. 

“Simply put, no Arizona statute grants the Superintendent an open-ended general grant of authority to sue,” she wrote. 

At issue is how Arizona schools help their English Language Learner students achieve proficiency in English. The State Board of Education authorizes schools to implement one of four teaching methods, including the 50-50 Dual Language Immersion model, under which students learn half the day in English and the other half in another language, such as Spanish.  

Horne, long an opponent of bilingual education, contends that the 50-50 model violates the provisions of Prop. 203. Approved by voters more than two decades ago, the initiative mandates English-only instruction and requires a parental waiver before bilingual methods can be taught. In 2019, lawmakers concerned about the lack of academic advancement of ELL students directed the board of education to research and authorize the use of effective teaching models. One of those models ended up being dual language instruction. Since then, as many as 26 school districts across the state and more than 100 schools have adopted the model.

In late June of last year, just months away from the start of classes, Horne threatened to withhold funding from schools using the 50-50 model. The Republican heads the Arizona Department of Education, which carries out the directives of the board of education and monitors schools to ensure they’re complying with both state laws and board policies. That announcement set off a monthslong spat between the state superintendent and Arizona Attorney General Kris Mayes, who shortly after issued a legal opinion stating that Horne had no authority to follow through on his threat. The Arizona State Board of Education quickly affirmed its backing of the 50-50 model, and Horne later responded by taking Mayes, Gov. Katie Hobbs and 10 school districts using the model to court. 

Horne sought a statement from the court that Mayes’ opinion was incorrect and that the use of the 50-50 model sans waivers unlawfully violates Prop. 203. 

Judge Cooper dismissed Horne’s request concluding that the head of Arizona’s public schools has no power to sue, and, even with the authority to do so, Horne’s case falls flat due to a lack of valid claims. 

State lawmakers imbued the Arizona Board of Education with the power to launch a lawsuit or be the subject of one. But state superintendents were given no such authority. Horne is responsible for overseeing Arizona’s public schools, and the most he can do under state law when a school is out of compliance is refer cases to the board for further review. 

Horne attempted to argue that an ability to sue was necessary to execute his role as the enforcer of board policies and state law. Cooper was unconvinced, pointing out that neither the laws outlining a state superintendent’s responsibilities nor the ELL laws that Horne is disputing authorize him to sue. But, she noted, the board does have explicit authority to file lawsuits, and Prop. 203 itself expressly empowers parents of students to take schools to court to enforce its provisions. 

“Well-established, controlling case law holds that the Superintendent has only those powers and duties prescribed by law,” Cooper wrote. “Neither the general statutes imposing educational responsibilities nor particular provisions in the ELL statutes authorize him to file this lawsuit.” 

Another of Horne’s arguments sought to persuade Cooper that his rights as a state Superintendent were jeopardized by the actions of the education board and the incongruent ELL laws. They both prevented him from carrying out his responsibilities as the chief supervisor of Arizona public schools and thus a clarification from the court was necessary, Horne said. But the board, which is the only entity that can modify or strike down a teaching method, isn’t a defendant in the lawsuit, Cooper noted. Mayes, Hobbs and the 10 school districts have no power to address Horne’s complaint.   

“Simply filing a lawsuit for judicial declarations on a topic does not create standing,” Cooper said. “Superintendent Horne has not shown that the Defendant Parties have affected his own rights or status. Further, even if he had, he could not file this lawsuit against them because he lacks the statutory authority to do so.” 

And the case as a whole is unable to move forward because the parties Horne sued aren’t involved with implementing the requirements of Prop. 203, Cooper added. Challenging them based on violations of the initiative would lead nowhere. Horne included Hobbs in the lawsuit due to her repeatedly expressed support for dual language instruction, alleging that as the state’s top executive it’s her responsibility to enforce state laws. But, Cooper said, the governor’s comments don’t amount to violations and she has no hand in determining school teaching methods. Mayes was sued because of her legal opinion and the 10 school districts were sued because they use dual language instruction. Cooper dismissed the complaint against the AG, pointing out that Mayes’ legal opinion is purely advisory, and said the school districts were simply fulfilling their responsibilities. Ultimately, only the state board of education is in charge of deciding how to teach English Language Learners. 

“At its core, the (complaint) challenges the way in which Prop. 203 has been implemented,” Cooper wrote. “Only the State Board has the authority to control how schools implement Prop. 203.” 

Cooper concluded that each of the parties Horne had erroneously sued were eligible to recover their costs, and granted a request from Hobbs to recover her attorneys’ fees. 

In an emailed statement, Horne vowed to appeal Cooper’s ruling and criticized her ruling for not discussing the allegation that Prop. 203 is being undermined. As that argument hasn’t yet been ruled on, it’s still available to pursue, according to Horne. He added that his intent was only to obtain a declaration from the court that 50-50 learning models must be changed to comply with the initiative, and now that such a declaration is out of reach, worse consequences for schools lie ahead. 

“The districts that opposed our position will regret this development. A near identical action will be filed by a parent, and this will have much worse consequences for the districts,” Horne said. “If such a lawsuit is successful, the school board members and superintendent of a district found to be in violation of the law are removed from their positions and cannot run for any public office in education for five years. There are parents prepared to file such a suit, and today’s court decision dismissing my lawsuit on purely technical grounds means that is the pathway forward.”

Stand for Children Arizona, a public education advocacy organization that has been a strong critic of Horne’s moves against the 50-50 model, celebrated the court’s ruling. Rebecca Gau, executive director of the group, noted that the 2019 law that Horne, a Republican, opposes was unanimously supported by Arizona Republicans in the state legislature, and slammed Horne for threatening a critical educational tool. 

“We hope this marks the end of Horne’s flagrant misuse of taxpayer dollars to try to overturn a law that was unanimously supported by Republican legislators, Governor, and State Board of Education members and is enabling Arizona school districts to achieve educational progress,” Gau said, in an emailed statement. 

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