Arizona Court of Appeals, Division One holds that state Superintendent of Public Instruction lacks authority and standing to challenge state Board of Education-approved English-learner model.

In Arizona, state statute dictates the methods of instruction for non-English-speaking and non-native-English-speaking children, referred to as “English learners,” in Arizona’s public school system. Statute directs the state board of education (“Board”) to adopt and approve English-learner models and enforce compliance. The Board has adopted several models, including a “50-50 dual language immersion” model. 

Arizona’s Superintendent of Public Instruction sued the Governor, the Attorney General, and several school districts, arguing that the “50-50” model violated the statutory requirements for English learner instruction and thus exposed him to personal liability.

The superior court dismissed the Superintendent’s action, finding that he lacked authority and standing to challenge the Board-approved model, and awarded the defendants attorney’s fees. The Superintendent appealed, and the Arizona Court of Appeals affirmed.

Whether a public officer has authority to pursue judicial relief depends on whether he or she has the right to initiate litigation under the Arizona Constitution or state statute. Assuming such authority exists, standing requires that the officer establish a justiciable injury traceable to the defendant’s conduct and redressable by the court.

In Arizona, the Superintendent’s duties and responsibilities are limited to those powers expressed or implied by statute. Unlike the Board, the Superintendent does not have express statutory power to create policy for regulating public schools or to sue.

Recognizing his lack of express power, the Superintendent asserted that his right to challenge the 50-50 model in court was implied because it was helpful to carry out his statutory duties. The Court disagreed, explaining that statutorily implied powers are only those necessary (i.e. required) to effectuate express powers. The Court found that the Superintendent’s statutory duties did not require him to challenge the constitutionality of the Board-approved English-learner model. Absent express or implied power, he did not have authority to initiate litigation.

Next, the Court held that even if the Superintendent had authority to sue, he lacked standing because his alleged injury was too speculative and he failed to allege traceability or redressability. The Court explained that the Superintendent’s personal liability concerns were too attenuated because none of the defendants could control his performance of his statutory duties or force him to violate the law. Moreover, the Attorney General’s opinion was non-binding, the Governor had no control over model implementation, and the school districts were merely following a Board-approved model, making them improper targets for judicial relief.  

The Court also found that the Arizona’s Uniform Declaratory Judgment Act did not provide the Superintendent the right to bring the action because the Act does not create an independent cause of action where one does not otherwise exist.

Last, the Superintendent challenged the superior court’s award of attorney’s fees to the defendants. The rules require that a fee claim be made in a pleading or dismissal motion. The Governor claimed attorney’s fees in her motion to dismiss, but the Attorney General and school districts merely joined the Governor’s request. The Court held that the joinder technically failed to comply with the rule, but the defendants were nevertheless entitled to attorney’s fees because the fees were statutorily mandated.

Judge McMurdie authored the opinion of the Court, in which Judges Foster and Brown joined.

Posted by: Payslie M. Bowman