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The battle over future of dual language programs in AZ continues

The battle over Arizona's dual language programs continues Tuesday morning as Gov. Katie Hobbs and Attorney General Kris Mayes are asking a judge to toss out a lawsuit filed against them by state Superintendent Tom Horne over the program. 

They say that they can’t give him the legal relief he wants and they can’t end the dual language programs in Arizona’s public schools. He says those programs are illegal.

It all goes back to a proposition passed by voters more than 20 years ago — in 2000 — that was dubbed the state’s “English only law.” 

At stake are how kids are learning English in 10 school districts Horne sued over their dual-language programs. 

To explain it all, Howard Fischer of Capitol Media Services joined The Show.

LAUREN GILGER: So tell us a little bit of the background here, like explain that proposition back in the year 2000 to begin with.

HOWARD FISCHER: This was actually started in California by some folks who contended that we have students in school and adults who just do not understand English, whether some of that was sort of an ethnocentrism or whatever we can leave for for another debate. But the argument was we want students who are in schools to be proficient in English as quickly as possible. So what the 2000 measures said, "all children in Arizona public schools shall be taught English by being taught in English and all children should be placed in English language classrooms." The whole idea was immersion, and there are arguments to be made for immersion and that's fine. But when you've got students in public schools who also need to keep up with their academics, that raised a whole series of questions that if you're taking them out and separating them out, segregating them out, are you in fact helping them in the long run? This continued under this system for years, up until 2019, when the Legislature started looking at these programs and saying, "well, maybe they're not working." And they gave the State Board of Education permission to come up with some alternatives that were scientifically based to teach English. Based on that, the state board adopted some rules that allow for less time on task, you know, may maybe two hours a day or four hours a day, but again, in also integrating kids into classrooms. Well, Tom Horne says they can't do that. And so he then turns around and sues not only the districts, but then sues the governor and sues the attorney general because he's ticked off at her for telling the school district, "well, you can follow what the State board said."

GILGER: Let me ask you before we get into that lawsuit a little more, Howie, about the dual language side of this. So, Ducey and the Legislature back in 2019, former Gov. Doug Ducey sort of loosened the requirements on, on how many structured hours of English immersion students had to have. But the big argument over this right was about sort of inequality, like the fact that some kids who were English speaking already were in these pretty successful dual language programs, learning Spanish or Mandarin or whatever it might be. But if you were a Spanish speaking student, you couldn't get into those.

FISCHER: Well, that, that became one of the side problems that a lot of school districts, you know, set up themselves. Sure, if in fact, you, you're already you know, looking to learn another language. It is, it does make, make a lot of sense, but it, it comes down to how do you administer this in a way that as you point out is fair, it, that gets the children who need it, the English instruction, that they need and keeps them also with their cohorts that that issue of segregation, which is I know is a buzzword, but that's a lot of what folks were arguing, you know, why are we taking all these students and separate them from their classmates, then they suddenly wind up a year or two years behind. Now, there are all sorts of studies, you know, you give me four academics, I'll give you eight studies, on whether dual language works better than English immersion. But the fact is that it's the local school boards who are deciding this based on what they say are the needs of their students. And if Tom Horne gets his way, no, they don't get to do that.

GILGER: So let's get to this lawsuit then. Now you've got the governor and the attorney general saying basically, "we cannot do what you're trying to make us do here in this lawsuit." What's their argument?

FISCHER: Well, it comes down to a very simple point that one would assume a Harvard-trained lawyer like Tom Horne would understand: if you're going to go to court and ask a judge to grant you relief, You need to have a defendant in there who can actually grant you the relief. So in other words, if I sue the governor because I am unhappy because I got a speeding ticket, and I think the speed limits are wrong on I -17 now that they've raised them, it doesn't do any good. She cannot get me the relief. I would need to sue ADOT or something like that. The governor is saying, "why are you suing me? You know, this was an action taken by the Legislature and a former governor. And more to the point, it was an action taken by the state Board of Education. I can't get you the relief you need." Mayes says "I can't get you the relief you need." The school districts are saying "we're just following what the State Board of Education told us to do." And when I talked to Tom Horne and I said, "why aren't you suing the Board of Education, the people who set the policy" and he said, "well, the executive director told me that the state board will do whatever the courts say." That's a nice bit of circular logic. But if in fact, they're not involved in the thing, you know, they may go along with whatever the judge says. I think they're counting on the fact, Well, we haven't been sued, so we don't have a problem here, but you really need to have somebody who can grant you the relief you're seeking. He says he's asking for a declaratory judgment about what the 2000 law says. Fine, but judges don't like issuing basically academic theoretical decisions without having all the parties there. And I think that's where he's gonna get thrown out of court.

GILGER: So let's end, Howie, with some policy. Lawmakers have sort of loosened these requirements on, on structured English immersion as it's called, as we mentioned. There have also been attempts by lawmakers to sort of change that law from the year 2000 and those haven't really gone anywhere. Could they though? Are those efforts still underway?

FISCHER: Well, they, they've occurred and interestingly enough, they've occurred from fairly conservative folks. John Fillmore, who was a very conservative Republican lawmaker out of Apache Junction but has an education background, sought to actually replace what was Proposition 203 in 2000 with a law that specifically allowed students to choose "effective and appropriate instruction methods" and also allowed districts to choose that. It got out of the House Education Committee on 10-1 vote but couldn't get the required vote by the Rules Committee. And for those of you who've been watching all along the Rules Committee is a roadblock. And so you still have folks who are philosophically opposed to the idea of dual language instruction. And this was Anthony Kern, who was then a state representative now a state senator, who said, "I don't want to hear this. I don't believe it. End of problem. You certainly could try again." I think a lot of it will depend on what happens to the lawsuit. If the judge tosses the lawsuit and schools can still do dual language instruction, it takes the pressure off. But if the judge says the voter-approved law means what the voter-approved law says, I think it will put pressure back on the lawmakers to say, well, this is too strict, this isn't working and we need to give schools some more flexibility.

GILGER: All right, we'll see what happens then. Howie Fisher of Capital Media Services joining us. Howie, thanks as always, appreciate it.

FISCHER: You're welcome.

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Lauren Gilger, host of KJZZ's The Show, is an award-winning journalist whose work has impacted communities large and small, exposing injustices and giving a voice to the voiceless and marginalized.