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In a ruling Thursday, the judges said the state Board of Education has the authority to decide what methods of teaching English are acceptable. And that board has provided a variety of other options, against the wishes of Horne, a Republican elected official whose title is superintendent of public instruction.

“The superintendent has no independent policy-making authority,’’ Judge Paul McMurdie wrote Thursday for the unanimous three-judge panel. “His authority is limited to executing, under the direction of the board, the policies that have been decided on by the board.’’

The school chief’s objections to the board’s actions are legally irrelevant, McMurdie also. He said nothing in state law specifically authorizes Horne to go to court to enforce what he believes is the law.

Another issue is that, in making his case, Horne sued not only various school districts he contends are breaking the law, but also Democratic Gov. Katie Hobbs and Attorney General Kris Mayes. But neither of them have any authority over the English language program and what schools teach, McMurdie said.

Horne said this isn’t the end of his fight to force schools to use what he said voters approved in 2000, saying he is weighing an appeal to the Arizona Supreme Court.

And, if nothing else, he noted that his wife, attorney Carmen Horne, is representing parents — who he believes do have standing to sue — in a separate case over how English is taught. But Horne acknowledged that case, too, is on appeal after being thrown out of court.

So the law Horne doesn’t like remains in effect for now — and he is on the hook for the legal fees of everyone he sued.

50-50 ‘dual language’

Central to the case is Proposition 203, a 2000 voter-approved measure that says “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.’’

But school officials in several districts have relied on a 2019 law, which allowed the state board to adopt and approve alternate “research-based’’ models, giving schools more flexibility in how to schedule English-learning time. It also allows classes mixed with students whose native language is not English, as well as those from homes where that is not the case.

Based on that, the Board of Education concluded — backed by Mayes — that one of the acceptable alternatives is a 50-50 “dual language model,’’ through which students can learn English but also keep up with their peers on other subjects.

Horne argues that studies have shown it is more effective to have students learn English quickly by being immersed in language lessons, even if they fall behind their peers in academic subjects. He also contends the 2019 law is unconstitutional because it is being interpreted to amend the 2000 ballot measure.

The Arizona Constitution forbids lawmakers from altering what voters have approved unless it “furthers the purpose’’ of the original law. Horne said that cannot be the case here because the purpose of Proposition 203 “is that children be taught in English for the entire school day, in order for them to quickly become proficient in English.’’

The Court of Appeals focused instead on whether Horne should even be in court.

“The superintendent has no independent policy-making authority,’’ McMurdie wrote. “His authority is limited to executing, under the direction of the board, the policies that have been decided on by the board.’’

The judge also noted it is the board — and not the schools chief — that has express authority to contract, sue and be sued.

McMurdie acknowledged the superintendent is responsible for identifying “English learners’’ — those who are not proficient — and overseeing the Department of Education funding, administration and monitoring role.

“But the superintendent has no role in determining the instructional models available to schools,’’ the judge said. “The Board (of Education) alone is allowed to adopt and approve lawful structured English immersion and non structured English immersion education models for the schools’ use.’’

No standing to sue

Horne sued the attorney general because she issued a legal opinion that the state board, and not Horne, has sole authority over English immersion models. And he sued Hobbs by claiming the governor “has been touting dual language even though she knows, or should know, that is contrary to law.’’

McMurdie pointed out that Arizona law provides standing to sue only to those who have a legitimate interest in the controversy. Beyond that, it requires that someone filing suit must allege a personal injury traceable to the conduct of those being sued.

That doesn’t exist here, the court said.

“The superintendent has not alleged that he has or will suffer an injury by the attorney general’s written opinion,’’ McMurdie said.

Nor was the appellate court impressed by the claims against the governor.

McMurdie acknowledged that the Arizona Constitution, as Horne points out, does require that all laws be “faithfully executed.’’ The governor’s duties also include appointing members of the Board of Education beyond Horne, who serves based on his position.

“But the superintendent’s pleading seeks not relief for the governor’s exercise of her duties and powers,’’ the court noted. “He simply complains that she has publicly supported the 50-50 model.’’

McMurdie called it “speculative’’ that the governor could use her power to force the board to take an action to side with Horne.

The court also separately said Horne has no standing to sue the school districts that have chosen the 50-50 model.

Finally, McMurdie said even if Horne was entitled to sue, they could not do what he asks: declare the 50-50 model illegal.

“The most we could do would be to reverse the dismissal and permit the superior court to decide the merits,’’ he said, referring to the lower court that dismissed Horne’s lawsuit last year.

In that case, Maricopa County Superior Court Katherine Cooper ordered Horne to pay $120,000 in legal fees to those he sued. The appeals court on Thursday not only upheld that order but said that the defendants now can seek reimbursement for what they spent on the appeal.

Horne said because he sued in the name of the Department of Education, it is that agency, and not he, who owes the money.

Previous legislative effort

Not everyone agrees with Horne’s contention that English immersion is the best method to teach the language.

There was an effort in 2020 to put a measure on the ballot to replace Proposition 203 with a requirement for public schools to provide dual language programs for both native and non-native English speakers. It spelled out that schools must provide “effective and appropriate instructional methods.’’

“This is a simple bill that says all the kids should have the equal chance to learn,’’ said John Fillmore, then a Republican state representative from Apache Junction.

The problem, Fillmore said, is when students are confined to classrooms where English is the only thing being taught, they are not keeping up with their counterparts who are in classes learning math, science and other subjects. Tha means they end up “being held back,” he said.

Fillmore said his measure would have created an opportunity for students who come to school knowing only English to pick up a second language.

It was approved by the House Education Committee on a 10-1 margin but died when it could not get the required hearing by the Rules Committee, which was chaired by Republican Anthony Kern, then a state representative out of Glendale.