Key Points:

• Ruling that state schools chief Tom Horne can’t sue certain school districts stands 

• Issue involves Prop. 203, a 2000 ballot measure on ‘structured English immersion’ 

• AG ruled that a dual language model is acceptable 

State schools chief Tom Horne has struck out in his claim that he is entitled to sue school districts that don’t use “structured English immersion” to teach English to students who are not proficient.

In a brief order, the Arizona Supreme Court has refused to disturb lower court rulings that said he lacks legal standing to enforce Proposition 203, a 2000 voter-approved measure that spells out how English must be taught to students who are not proficient in the language. The justices did not explain their ruling.

But Horne insists the battle is not over.

He pointed out that his wife, Carmen Chenal Horne, who also is an attorney, has raised the same claim in a parallel lawsuit. And Horne contends that even if he can’t sue as superintendent of public instruction – as the lower court has decided and the Supreme Court has now affirmed – the law does allow a parent he represents to bring legal action.

Only thing is, that case has not fared any better.

The Court of Appeals acknowledged that Patricia Pellett, the plaintiff in that case, is a parent. 

But the judges pointed out she does not live in any of the 10 school districts that she and Horne contend have been violating the 2000 law. Nor is her child enrolled in any English instruction program.

And that, the appellate court said, gives her no more right than her husband to sue.

“I think that was a very foolish decision,” Horne told Capitol Media Services. But he noted that case remains on appeal to the Supreme Court, though no date has been set for the justices to review it.

At the heart of all this is the question of whether the state Board of Education has the authority to decide which teaching methods are acceptable.

The 2000 voter-approved measure says 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.” That, Horne contends, means students who are not proficient in the language when they come to school – presumably from homes where another language is spoken – are placed in English immersion courses for four hours a day.

That concept, however, drew concern from some parents and schools who said that the special English classes led those students to fall behind in other academic subjects. There also were questions about whether these students were being segregated from others their own age.

In 2019, lawmakers voted to allow the state Board of Education to adopt and approve alternate “research-based” models that involve two hours a day of English instruction, giving schools more flexibility in scheduling that time. It also allows classes to include both students whose native language is not English and those from homes where that is not the case.

Based on that law, the board concluded – backed by Attorney General Kris Mayes – that one acceptable alternative is a 50-50 “dual language model,” where students can learn English while keeping up with their peers in other subjects.

Horne filed suit.

He says studies have shown that it is more effective for students to learn English quickly by being immersed in language lessons, even if they fall behind their peers in academic subjects.

But there’s also a legal issue.

The Arizona Constitution forbids lawmakers from altering what voters have approved unless it “furthers the purpose” of that original law.

In this case, Horne argued the 2019 law did not meet that test because the 2000 ballot measure spelled out that “children be taught in English for the entire school day, in order for them to quickly become proficient in English.”

But the Court of Appeals ignored all that, instead focusing on whether Horne should even be in court.

“The superintendent has no independent policy-making authority,” wrote appellate Judge Paul McMurdie for the court. “His authority is limited to executing, under the direction of the board, the policies that have been decided on by the board.”

McMurdie acknowledged that the superintendent is responsible for identifying “English learners” – those who are not proficient – and overseeing the Department of Education’s funding, administration, and monitoring role.

“But the superintendent has no role in determining the instructional models available to schools,” the judge said. “The Board (of Education) alone is allowed to adopt and approve lawful structured English immersion and non structured English immersion education models for the schools’ use.”

It was that decision that the Supreme Court just refused to disturb.

In rebuffing the state schools chief on the legal issue of standing, the justices also affirmed the appellate ruling that there was no basis for Horne to sue both Mayes and Gov. Katie Hobbs.

Horne named Mayes because of a legal opinion she issued that the state Board of Education – and not Horne – has sole authority over English immersion models. And he sued Hobbs claiming that the governor “has been touting dual language even though she knows, or should know, that is contrary to law.”