Schools chief Tom Horne sues AG, governor over dual-language instruction in Az schools

Arizona’s public schools chief is taking the governor and attorney general to court in an ongoing spat over how English Language Learner students should be taught. 

On Wednesday, Superintendent of
Public Instruction Tom Horne, a Republican, filed a lawsuit in Maricopa
County Superior Court asking the judge to settle a disagreement over the
interpretation of state law between his office and Gov. Katie Hobbs and
Attorney General Kris Mayes. 

At the heart of the disagreement is whether a teaching model authorized by the State Board of Education and used in as many as 26 school districts
across the state complies with a law approved by Arizona voters more
than 20 years ago. The 50-50 Dual-Language Immersion model is one of
four methods used to teach students who aren’t yet proficient in
English, known as English Language Learners. Under the model, students
are taught half the day in English and the other half in another
language, often their native language.

Horne, long an opponent of bilingual
education, argues that the 50-50 model violates Proposition 203. The
measure, which voters approved in 2000, mandates that all students be
taught only in English until they’ve achieved proficiency. Acting on
that interpretation, Horne threatened earlier this year to withhold funding from schools using the 50-50 model. 

Democrats Hobbs and Mayes disagree with Horne’s stance and strongly support dual language models. In a legal opinion
issued just a month after Horne’s warnings, Mayes said his office has
no ability to withhold funding and assured schools that the 50-50 model
is protected by the authority of the State Board of Education, to which
Horne can, at most, report violations of board rules. She pointed out
that a 2019 law,
passed by legislators concerned with the academic struggles of English
Language Learners, ordered the board to develop alternative,
research-based teaching methods. 

That directive ultimately paved the
way for the adoption of the 50-50 model and gave the board sole
authority over how to teach English Language Learners. 

The State Board of Education affirmed
shortly after Mayes’ opinion that it had no plans to make any changes
to its adopted teaching models or punish schools for using the 50-50
model. 

The question of whether the 50-50
model falls afoul of the provisions in Prop. 203 was not discussed in
Mayes’ opinion, however. And Horne returned to the conflict in his
lawsuit. The Arizona Constitution protects voter-approved initiatives
from being amended by lawmakers unless the changes are made in the
spirit of the original initiative, and neither the State Board of
Education nor the legislature has the power to override the will of the
voters, Horne said. 

“No governmental body can override a
voter-protected initiative,” reads his lawsuit. “The voter protected
initiative specifically requires that instruction be in English until
the student tests as proficient in English, or a parental waiver is
obtained.”

The only exception baked into Prop.
203 is for parents to waive the requirement of an English-only education
annually, in writing and in person. While the State Board of Education
has said it won’t require waivers, it has also stated that it is within
Horne’s power to begin doing so. And, according to Horne, schools that
employ the 50-50 model without asking for written waivers are doing so
illegally. 

“The voter-protected initiative
specifically requires that English-language learners be taught English
by being taught in English, and that they be placed in English-language
classrooms,” Horne’s attorneys wrote. “Dual language classrooms, in the
absence of a statutory waiver, are therefore prohibited by the
voter-protected initiative.” 

In a declaration added to the
lawsuit, Margaret Garcia Dugan, Horne’s deputy superintendent who has
served under him for two terms and helped draft the language of Prop.
203, said the inclusion of a waiver requirement underscores the
English-only aspect of the initiative.  

“Had the intended purpose of the
initiative been to allow students to be taught in a language other than
English throughout the school day, then there would have been no need
for the waiver provision,” she said. 

Clearly, Dugan said, Prop. 203 was
never meant to promote bilingual education, and the efforts from
lawmakers to allow the State Board of Education to adopt the waiver-free
50-50 model are nullified as a result. 

“Some have interpreted legislation
passed by the legislature in 2019 as authorizing dual language
classrooms. If that is true, the legislation is invalid as a violation
of the Voter Protection Act,” Dugan said. “That is because it does not
further the purpose of the initiative,
which was to make sure that students are taught English through the
school day so that they can learn English quickly and then go on to
academic success.”

A common refrain from opponents of
dual language models is that it hinders the progress of students
learning English, and that argument is present in Horne’s lawsuit, which
was also filed against Creighton Elementary School District. 

Horne said that the English
proficiency rate of Creighton’s English Learner students is dismal, at
5.1% last year, compared to elementary schools in other districts, like
Catalina Foothills Unified District, with 33.03% proficient, or
Scottsdale Unified District. which saw 23.87% of students become
proficient. 

But both of those districts are significantly different from Creighton, which has a student body that is 83.8% Hispanic, and poor — about 84% of its students qualified for free and reduced meals in 2022. The demographic makeup of Catalina Foothills Unified, which is similarly sized, is 55% white
and only 11% of the district’s students qualified for free and reduced
meals last year. Scottsdale Unified, which is three times larger than
the two other districts, has a student body that is 62% white and only 23% Hispanic. About 22% of Scottsdale Unified students qualified for the free and reduced meal program in 2022. 

Research indicates that the dual language models are successful in helping students achieve proficiency, albeit at a slower pace than fully immersive methods. Importantly, studies show that full immersion models can lead to higher rates of psychological distress for English learners, including depression and anxiety.

Horne requested that the court
declare the 2019 law unconstitutional if its purpose was to permit dual
language instruction. He also asked the judge to settle the disagreement
between his office and those of other state leaders by dismissing
Mayes’ opinion as incorrect and declaring that the currently approved
50-50 model is contrary to the provisions of Prop. 203 if there are no
waivers being required. 

A spokesperson for Mayes declined to comment, saying her office is still reviewing the lawsuit. 

Christian Slater, a spokesman for
Hobbs, said she will continue to back the 50-50 teaching model as a
critical support for students across the state and Arizona’s future
workforce. 

“Dual language programs are critical
for training the workforce of the future and providing a rich learning
environment for Arizona’s children,” Slater said. “Governor Hobbs is
proud to stand by dual language programs that help ensure the next
generation of Arizonans have an opportunity to thrive. She will not back
down in the face of the superintendent’s lawsuit.”