Arizona Superintendent Sues AG, Governor Over Dual Language Instruction in Schools

Superintendent of Public Instruction Tom Horne threatened earlier this year to withhold funding from schools using the 50-50 language model.

This is a photo of a chalkboard with the phrase "Vuelta al Cole" written on it.

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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.”

Arizona Mirror is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Arizona Mirror maintains editorial independence. Contact Editor Jim Small for questions: info@azmirror.com. Follow Arizona Mirror on Facebook and Twitter.

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