Appeals court dismisses Az superintendent’s lawsuit challenging dual-language education

The state appellate court has thrown out a lawsuit filed by Arizona’s
top education official challenging the right of public schools to use
dual-language immersion to teach English Learner students.

In a Thursday ruling, the three-judge panel wrote that Superintendent
of Public Instruction Tom Horne doesn’t have the legal ability to file a
lawsuit or take any of the named parties to court in his official
capacity as the head of the Arizona Department of Education.

“The Superintendent lacks the authority to sue and lacks standing to sue these defendants,” the judges wrote.

Step back: How disagreements over dual language instruction made it to the courts

Horne, a Republican, campaigned on a promise to end bilingual
education. In June of 2023, weeks away from the start of the new
academic year, he made his first attempt to do so by threatening to
withhold funding from Arizona schools that use the “50-50” dual language
immersion instructional model. Under the model, which is widely used
throughout Arizona, students learn half the day in English and the other
half in a different language, such as Spanish.

Arizona Attorney General Kris Mayes quickly released an opinion
asserting that Horne had no authority to freeze the school funding or
challenge the 50-50 model, and the state board of education assured
parents and schools that the instructional model would be preserved.
Horne responded by taking Mayes, Gov. Katie Hobbs — who had expressed
support for the teaching method — and 10 public school districts that
use it to court.

At the heart of Horne’s argument is the claim that the 50-50 model as
it’s currently implemented violates the directives of Proposition 203.
The initiative, which voters approved in 2000, places strict limits on
the education of English Learner students. It mandates that all students
in public schools be taught in English and specifies that students
still learning the language must be placed in “structured English
immersion” classrooms where books, instructional materials and lessons
are in English. Only students whose parents sign a waiver can be placed
in alternative classrooms, or be taught with bilingual education
techniques.

Horne argues that because schools aren’t currently required to
collect parental waivers, the 50-50 teaching model exists in direct
conflict with the voter-protected initiative.

The 50-50 model was adopted as a result of legislative action. In
2019, lawmakers concerned about the consistently low academic
achievement of English Learner students passed a law instructing the
state board of education to research and adopt new teaching models. Dual
English immersion was one of the four models that was ultimately
greenlit for schools to use.

Appellate judges: Horne has no power to sue, people sued have no ability to redress his complaints

After a lower court dismissed his lawsuit, asserting that Horne has
no statutory authority to initiate a legal challenge at all, Horne took
his case to the state appellate court. The Republican argued that he was
liable as the state’s top education official if the 50-50 model
continues in its current form, and urged the judges to declare that it
can only be taught with a waiver system in place.

But the judges were unconvinced, writing that Arizona law is clear
about the superintendent’s role. Under state statute, the superintendent
is responsible for overseeing the implementation of policies approved
by the state board of education and reporting any possible noncompliance
issues. No law authorizes the superintendent to file lawsuits.

By contrast, the Arizona Board of Education can sue or be sued to ensure public education policy is enacted properly.

“The Board is expressly authorized to contract, sue, and be sued,”
wrote Judge Paul J. McMurdie, for the appellate panel. “The
Superintendent is not.”

And, the trio added, it’s up to the state board of education to
approve teaching models and determine what constitutes violations of
them, not the superintendent. Even Horne himself, they pointed out,
agreed in court filings that his position has no statutory authority to
sue to carry out his duties.

Along with lacking the power to file the lawsuit, Horne failed to
establish standing or identify valid legal issues that can be remedied
by the defendants in the case, according to the ruling. In his appeal,
Horne requests that Mayes’ opinion nullifying his threats to withhold
funding from schools that use the 50-50 model be dismissed as wrong. But
disagreement with her office’s interpretation, which is non-binding,
doesn’t amount to a legal injury and isn’t something the courts can
weigh in on, the judges said.

And while Horne argues that Hobbs’ public support for the 50-50 model
should be repudiated, and casts doubt on her impartiality when
appointing members to the state board of education, the appellate judges
were unimpressed. Horne’s claims against Hobbs, they wrote, sound more
like an airing out of personal grievances against the Democrat than a
justiciable legal problem.

“The Superintendent’s pleading seeks no relief for the Governor’s
exercise of her duties and powers — he simply complains that she has
publicly supported the 50-50 model,” reads the opinion. “Moreover,
because the Board is an independent government entity, it is speculative
that any action by the Governor under her take-care power could redress
the Superintendent’s alleged harm.”

Similarly, Horne’s complaint against the 10 school districts named in
the lawsuit that are using the 50-50 instructional model isn’t
something that’s within their power to resolve. Only the state board of
education, which wasn’t included in the lawsuit, has the ability to
determine which instructional models can be used to teach English
Learner students.
Horne argued that if the schools continue using the 50-50 model without
waivers, he could be at risk of a lawsuit from disgruntled parents, but
the appellate judges waved off that concern as too hypothetical.

In the end, they wrote, the lawsuit is invalid because Horne doesn’t
have any legal power to file a lawsuit and because the courts wouldn’t
be able to figure out a solution that the people who were sued could
carry out.

“None of the defendants could control the Superintendent’s
performance of his duties, and his injuries are speculative,” reads the
opinion.

Despite the dismissal, Horne remains undeterred in his ongoing
crusade to eliminate dual language instruction. In a written statement,
he said he’s mulling whether to appeal the issue to the Arizona Supreme
Court next.

“I am considering a filing with the state Supreme Court,” he said. “I
believe the Department of Education does have standing. This is
important because ELL students are being cheated because under dual
language, they don’t acquire English fast enough to perform properly in
academics.”