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

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Arizona’s appellate court says state Superintendent Tom Horne does not have the right to sue to block schools from using dual-language education. (Photo by Gage Skidmore/Flickr/CC BY-SA 2.0)

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.”

This post was originally authored and published by Gloria Rebecca Gomez from AZ Mirror via RSS Feed. Join today to get your news feed on Nationwide Report®.