Arizona attorney general: School officials not liable for implementing dual language programs

As part of his battle against dual language programs, Superintendent of Public Instruction Tom Horne has invited parents to file lawsuits against school officials that implement the programs without parental waivers for English learners.

In response, Attorney General Kris Mayes is telling school officials not to worry, saying they can't be held personally liable for implementing dual language programs based on a model approved by the state Board of Education.

It's the second time Mayes, a Democrat, has slapped down attempts by Horne, a Republican, to attack dual language programs in what is turning into a political battle over whether the programs violate Proposition 203, a voter initiative passed in 2000 that requires English learners to be taught only in English.

Horne contends that parents can file lawsuits against school officials for implementing dual language programs because he claims they violate the state's law requiring English learners only be taught in English unless they have received parental waivers exempting them from services.

In a letter to all 15 county attorneys dated July 24, Mayes disputed Horne's claim.

She said school officials are only liable if they refuse to implement terms of a law. Because the dual language model has been approved by the state Board of Education, implementing dual language programs does not amount to refusing to abide by Proposition 203, Mayes states.

"Implementing the Dual Language Model, which has been duly approved by the State Board of Education, is not a 'refusal' to implement the applicable statutes," the letter states.

Mayes' letter came a week after she issued an official opinion striking down Horne's threats to withhold educational funding from school districts that allow English learners to enroll in dual language programs without parental waivers.

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In her July 17 opinion, Mayes said Horne doesn't have the authority to withhold educational funding from schools who implement dual language programs because the dual language model was approved by the state Board of Education in 2020 as one of four models for teaching English learners.

The four new models were created by the board in 2020 in response to legislation unanimously passed by the state Legislature and signed by then-Gov. Doug Ducey in 2019. The legislation was aimed at giving schools more flexibility to teach English learners after data showed they were not learning English and were falling behind academically under the previous model.

The old model, which Horne drafted when he was superintendent of public instruction from 2003 to 2011, required all English learners to receive four hours of English-only instruction per day while segregated from their English-speaking peers.

In response to Mayes' opinion, the state Board of Education said schools could go ahead and offer dual language programs this fall without fear of losing educational funding. In her opinion, Mayes also stated that no waivers are required for English learners because the board had approved the model for English learners.

In her July 24 letter, Mayes asks county attorneys to distribute her opinion and the letter to school superintendents so that they can convey the information to school districts in their counties.

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Horne said he believes Mayes is wrong to assert that school officials can't be sued by parents for implementing dual language programs.

He pointed to language in Proposition 203 that states "students shall be taught English by being taught in English" and English learners shall be taught in structured English immersion classes. The law further states that school officials who violate the law can be held liable.

"Any individual found so liable shall be immediately removed from office, and shall be barred from holding any position of authority anywhere within the Arizona public school system for an additional period of five years," the law states.

Said Horne, "I think she's wrong because nobody can overrule a voter-approved initiative. The attorney general can't, the state board can't. A voter-approved initiative cannot be touched by anyone."

Dual language programs have gained popularity in recent years as a way for English learners and fluent English speakers to become bilingual and biliterate. Under the programs, English learners learn side-by-side with fluent English speakers while receiving academic instruction in English for half of the day and the other half in another language, typically Spanish.

Horne, however, contends that dual language programs violate Proposition 203 if they include English learners without waivers.

In her opinion, Mayes declined to weigh in on the legality of dual language programs under Proposition 203.

Daniel Gonzalez covers race, equity and opportunity. Reach the reporter at daniel.gonzalez@arizonarepublic.com or 602-444-8312. Follow him on Twitter @azdangonzalez.

This article originally appeared on Arizona Republic: Mayes: Arizona school officials not liable over dual language programs