Judge tosses Horne's effort to block English learners from dual language programs

Leer en español

A judge has tossed out a lawsuit by state Superintendent of Public Instruction Tom Horne that tried to bar students not proficient in English from participating in dual language programs.

Horne filed the lawsuit in September against Gov. Katie Hobbs, Attorney General Kris Mayes and 10 school districts that offer dual language programs, including Mesa Public Schools, the largest district in the state.

Maricopa County Superior Court Judge Katherine Cooper dismissed the lawsuit on March 5, saying Horne did not have the legal authority to file the lawsuit against Hobbs and the other defendants. In tossing out the lawsuit, Cooper also said that even if Horne did have the authority, he failed to state claims against them.

Cooper also ordered Horne to pay the defendants' legal fees.

Cooper's decision represents a victory for proponents of allowing English learners to participate in dual language programs. In these programs, students spend half the day learning in English and half the day learning in another language, typically Spanish or Mandarin Chinese.

In a statement, Horne said he would appeal the judge's decision. He also suggested that now a parent might bring a similar lawsuit that could have more dire consequences for school officials. There are parents "prepared to file such a suit," Horne said, "and today's court decision dismissing my lawsuit on purely technical grounds means that is the pathway forward."

Proposition 203 allows parents to file lawsuits accusing schools of violating its terms. That enforcement mechanism allows elected officials and administrators "who willfully and repeatedly" refuse to follow the proposition's provisions to be held personally responsible for financial damages. School board members found liable in a parental lawsuit for violating the proposition must be removed from office and barred from "any position of authority" in an Arizona public school for five years.

"I sought to avoid this consequence for school personnel, by bringing a declaratory action" that would not have resulted in the same kinds of sanctions, Horne said.

Mayes' spokesperson, Richie Taylor, said the attorney general condemned Horne's response.

"She believes our public schools need support from state government, not threats," Taylor said.

Hobbs' spokesperson, Christian Slater, said the governor was happy Horne's lawsuit was dismissed.

"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," Slater said in a written statement.

"Governor Hobbs understands the important role dual language programs play in the success of students and the state as a whole, and she has fought hard to protect them. We are happy to see this lawsuit rightfully get dismissed, and hope this will put an end to the attack on dual language students," Slater said.

In his lawsuit, Horne argued that it is illegal for students not proficient in English, so-called English learners, to participate in dual language programs under Proposition 203, a ballot measure approved by voters in 2000. The law requires that English learner students be taught only in English.

However, in 2019, the Republican-controlled Legislature passed a law signed by Gov. Doug Ducey, also a Republican, that gave schools more flexibility in teaching English learners after years of data showed they were falling far behind academically under the Proposition 203 English-only immersion law.

Horne, a Republican, is a staunch opponent of bilingual education. He argues that research shows that English learners master English more quickly through immersion. Mastering English is key to their academic success, Horne says.

Supporters of dual language programs, though, say research shows the programs are more effective at teaching English learners than English immersion and have the added benefit of allowing students to learn to read, write and speak in two languages, making them more competitive in the job market.

The 2019 law directed the State Board of Education to develop research-based structured English immersion models for teaching English learners within the Proposition 203 framework.

In 2020, the board created four new structured English immersion models for teaching English learners. Three were based on a student's level of English proficiency, and the fourth allowed English learners to participate in dual language programs, which have since soared in popularity.

Horne contended that while school districts can offer dual language programs, they are forbidden from allowing English learners to participate under Proposition 203.

Cooper's decision, however, noted that the Legislature modified Proposition 203 to allow parents of English learners to seek waivers from structured English immersion instruction.

In July 2023, Mayes issued an official legal opinion stating that Horne did not have the authority to withhold funding from schools that offer dual language programs to English learners, as Horne had threatened.

The opinion also stated that no waivers are needed for English learners to participate in dual language programs based on models approved by the State Board of Education. But the opinion did not state whether dual language programs comply with state law.

Reach the reporter at daniel.gonzalez@arizonarepublic.com.

This article originally appeared on Arizona Republic: Judge tosses Horne dual language lawsuit, orders him to pay legal fees