When the Arizona State Board of Education has approved a Structured English Immersion model, can the Superintendent of Public Instruction or the Department of Education declare that model invalid and order schools to stop using it?
Plain-English summary
In January 2020, the Arizona State Board of Education approved the 50-50 Dual Language Immersion model as a Structured English Immersion (SEI) model that public schools could use to teach English Language Learners. The model lets schools teach in English half the day and in a partner language the other half.
In June 2023, Superintendent Tom Horne issued a statement asserting that the Dual Language Model violated Proposition 203 and warning schools of "legal consequences" if they kept placing English language learners into dual-language classes without parental waivers. The next day, the Department's Office of English Language Acquisition Services sent a letter to school districts stating that "[e]ffective immediately, the 50-50 Dual Language Immersion Model is hereby eliminated as a model of Structured English Immersion." Four House education committee members asked the AG whether the Superintendent or the Department could do that.
Attorney General Kris Mayes said no. The legislature gave the State Board the power to "delete from, add to or modify" SEI models (A.R.S. § 15-756.01(G)) and the power to make the final noncompliance determination that would cut off ELL funding (A.R.S. § 15-756.08(J)). The Superintendent and the Department are limited to executing Board policy, monitoring program effectiveness, and referring noncompliant districts to the Board. They cannot eliminate a Board-approved model, declare a model illegal, or withhold ELL funds without a Board finding. The Dual Language Model therefore remains in place, and school districts may continue to use it.
The AG also declined to opine on whether the Dual Language Model itself complies with Prop. 203, treating that question as the kind of fact-intensive, expertise-driven determination the legislature has assigned to the Board.
What this means for you
If you are a school district administrator or charter school operator
You may continue to use any Board-approved SEI model, including the Dual Language Model. Letters or statements from the Superintendent or the Department purporting to eliminate a Board-approved model do not have legal force. ELL funding can only be cut off after the Department's monitoring leads to a Department report, the Department refers the district to the Board, and the Board itself makes a finding of noncompliance under A.R.S. § 15-756.08(J).
If you are a school attorney advising on ELL programs
This opinion is your starting point in any dispute over a Department or Superintendent attempt to police SEI models. The framework is statutory: § 15-756.01 (Board approves and modifies models), § 15-756.08 (Department monitors and refers, Board finds noncompliance), § 15-756.04 (ELL fund). Anything outside that framework is at most policy, not law.
If you are an English Language Learner family
If your child is in a Board-approved SEI model, including a Dual Language program, schools have authority to keep using it. If a school tries to move your child out of a program because of the Department's June 2023 letter, ask the school to point to the legal authority for the move. Under this opinion, the Department's letter alone is not legal authority.
If you are a state legislator
The opinion makes a structural point: the Superintendent does not issue legal opinions on school matters, and the Department does not unilaterally police program models. If the legislature wants to give either of those offices direct authority over SEI models, it has to write that authority into the statute. Until then, the Board's role is exclusive.
Common questions
Q: Who has authority to approve and modify SEI models?
A: The State Board of Education, exclusively. A.R.S. § 15-756.01(A) gives the Board authority to "adopt and approve research-based models of structured English immersion" and § 15-756.01(G) gives it authority to "delete from, add to or modify" existing models. The Department of Education and the Superintendent have no role in this approval process other than monitoring how the models are used.
Q: Can the Department withhold ELL funds from a school?
A: Only after a multi-step process that ends with a Board finding of noncompliance. The Department monitors implementation under § 15-756.08(B). If it identifies noncompliance, it issues a report, works with the school on a corrective action plan, and (if needed) refers the school to the Board. Only "[a] school district or charter school that is found by the state board to be noncompliant" may have its ELL funding cut off. § 15-756.08(J).
Q: Does the Superintendent get to issue legal opinions on school matters?
A: No. A.R.S. § 15-253 expressly assigns the task of writing legal opinions on school matters to the Attorney General and instructs the Superintendent to distribute AG opinions to county school superintendents and county attorneys, who in turn must distribute them to school districts. Any "legal opinion" issued by the Superintendent is not a legal opinion in the statutory sense; it is at most a policy statement.
Q: Does the Dual Language Model itself comply with Prop. 203?
A: The AG declined to opine on that question. The reasons were structural: the Board approves SEI models through a detailed, fact-intensive process that includes review of research, joint legislative budget committee submission, and stakeholder input, and the AG concluded that the question of whether the Dual Language Model satisfies the SEI requirements of Prop. 203 is the kind of expertise-driven determination the legislature has assigned to the Board, not to the AG.
Q: What was Prop. 203?
A: A 2000 voter initiative requiring that ELL students "shall be taught English by being taught in English" through "sheltered English immersion during a temporary transition period not normally intended to exceed one year," subject to parental waivers under § 15-753. Prop. 203 added what are now A.R.S. §§ 15-751 through 15-755.
Background and statutory framework
Arizona's ELL statutory framework has gone through several iterations. Prop. 203 (2000) established the SEI default. H.B. 2064 (2006) added §§ 15-756 through 15-756.13, set up the ELL Task Force, and created the Office of English Language Acquisition Services within the Department. The 2013 amendments dissolved the Task Force and transferred its powers to the Board. S.B. 1014 (2019) reduced the required English language development minutes, directed the Board to establish a research-evaluation framework with specified criteria, and made changes to the Department's evaluation process. The Board approved the Dual Language Model under that framework in January 2020.
That layered history is what makes the AG's separation-of-powers reasoning so clean. Each authority is plainly assigned by statute. The Board approves and modifies models. The Superintendent executes Board policies. The Department monitors implementation. The Board finds noncompliance. The AG issues legal opinions on school matters. When the Superintendent or the Department steps outside its assigned lane (here, by issuing a statement that an approved model is illegal and a letter that the model is "eliminated"), those actions are not within the office's statutory authority and lack legal force.
Citations and references
Statutes:
- Ariz. Const. art. V, § 9; art. XI, § 3
- A.R.S. §§ 15-203(A)(1); 15-251(4); 15-253(A)(1)–(2), (B); 15-751(5); 15-752; 15-753; 15-756 to 15-756.13; 15-756.01(A), (D), (F), (G), (I); 15-756.04; 15-756.08(B), (C), (E)–(J)
- A.R.S. § 41-193(A)(7)
Cases:
- Moulton v. Napolitano, 205 Ariz. 506 (App. 2003)
- Sharpe v. Ariz. Health Care Cost Containment Sys., 220 Ariz. 488 (App. 2009)
Source
- Landing page: https://www.azag.gov/opinions/i23-005-r23-013
- Original PDF: https://www.azag.gov/sites/default/files/2025-06/I23-005.pdf
Original opinion text
To:
Representative Jennifer Pawlik, Leg. Dist. 13
Representative Laura Terech, Leg. Dist. 4
Representative Nancy Gutierrez, Leg. Dist. 18
Representative Judy Schwiebert, Leg. Dist. 2
Questions Presented
You have raised questions regarding how structured English immersion ("SEI") instructional models approved by the State Board of Education (the "Board") may be modified or rescinded and the procedures for addressing public schools that are not in compliance with laws applicable to English language learners ("ELL"s). You have also asked whether the Dual Language Immersion SEI Model ("Dual Language Model") approved by the Board is consistent with Arizona law.
Summary Answer
Arizona law is clear that the Board has the sole authority to eliminate or modify an approved SEI model. The Board also has the sole authority to determine whether a school district or charter school has failed to comply with Arizona law governing English language learners. Only those school districts and charter schools found by the Board to be noncompliant are barred from receiving monies from the English language learner fund. For the reasons explained below, we respectfully decline to address your question regarding the Dual Language Model.
Background
In 2000, Arizona voters passed Proposition 203 in an effort to ensure that students considered to be ELLs in Arizona are taught the English language "as rapidly and effectively as possible." Prop. 203 repealed and replaced Title 15, Chapter 7, section 3.1 of the Arizona Revised Statutes ("ELL Statutes"). The language added by Prop. 203 provides that "all children in Arizona public schools shall be taught English by being taught in English and all children shall be placed in English language classrooms. Children who are English learners shall be educated through sheltered English immersion during a temporary transition period not normally intended to exceed one year." A.R.S. § 15-752. Section 15-753 allows the requirements to be waived by parental consent.
In 2006, the legislature passed H.B. 2064, which added sections 15-756 through 15-756.13 to the ELL Statutes, established the Arizona English Language Learners Task Force, created the Office of English Language Acquisition Services within the Department, and required SEI models to include a minimum of four hours of English language development. In 2013, the legislature dissolved the ELL Task Force and transferred its authority to the Board. In 2019, Senate Bill 1014 reduced minimum English language development to 120 minutes per day for K-5 and 100 minutes per day for grades 6-12, and directed the Board to establish a framework for evaluating research-based models meeting specified criteria.
In January 2020, exercising its authority under A.R.S. § 15-576.01, the Board approved the Dual Language Model. This Model allows schools to teach ELL students in English for half of the school day and in a partner language for the other half of the day.
On June 19, 2023, the Superintendent for Public Instruction issued a statement purporting to declare that the Dual Language Model violates Prop. 203 and warned schools of "legal consequences" if they kept placing ELL students in dual-language classes without parental waivers. The Department's Office of English Language Acquisition Services then sent a letter to Arizona school districts on June 20, 2023, stating that, "[e]ffective immediately, the 50-50 Dual Language Immersion Model is hereby eliminated as a model of Structured English Immersion."
On June 30, 2023, four legislators on the House Education Committee submitted a joint request for an Opinion from this Office.
Analysis
Only the Board has statutory authority to eliminate an SEI model or determine that a school is noncompliant with ELL requirements.
The powers and duties of the Board and the Superintendent are prescribed by the legislature. Ariz. Const. art. V, § 9; art. XI, § 3. The legislature has prescribed that the Board "shall . . . [e]xercise general supervision over and regulate the conduct of the public school system and adopt any rules and policies it deems necessary to accomplish this purpose." A.R.S. § 15-203(A)(1). The Superintendent is directed to "[e]xecute, under the direction of the state board of education, the policies that have been decided on by the state board." A.R.S. § 15-251(4).
The ELL Statutes grant the Board the statutory authority to "adopt and approve research-based models of structured English immersion for school districts and charter schools to use." A.R.S. § 15-756.01(A). Further, the ELL Statutes grant the Board the authority to "delete from, add to or modify" existing SEI models. Id. (G).
The Superintendent is empowered by § 15-756.08 to "direct the office of English language acquisition services" within the Department to monitor schools' implementation of ELL programs. If the Department determines that a school district or charter school is not complying with the legal requirements for ELLs, the Department must issue a report and follow prescribed procedures to assist schools in creating and implementing a corrective action plan. A.R.S. § 15-756.08(C), (E)–(J). If, after following these procedures, the Department believes a school to be out of compliance with the law, the Department "shall refer the school district or charter school to the state board of education for a finding of noncompliance." Id. (J). A school district or charter school that "is found by the state board to be noncompliant shall not continue to receive any monies from the Arizona English language learner fund."
The ELL Statutes do not authorize either the Superintendent or the Department to eliminate or modify an existing SEI model approved by the Board. Additionally, the ELL Statutes do not authorize the Superintendent or the Department to determine that a school district or charter school is not in compliance with the ELL Statutes. Rather, the Superintendent's and the Department's role in implementing the ELL Statutes is limited to monitoring and referring school districts and charter schools to the Board for a finding of noncompliance.
Contrary to the June 20, 2023 letter from the Department's Office of English Language Acquisition Services, the Board has not modified the Dual Language Model or otherwise deleted the Dual Language Model from the approved list of SEI models. The Dual Language Model thus remains an approved SEI model.
Additionally, the Superintendent lacks authority to issue formal legal opinions on school matters. The legislature has assigned the task of writing legal opinions relating to school matters to the Attorney General. A.R.S. § 15-253(B). Any legal opinion issued by the Superintendent, like the Superintendent's June 19 statement, lacks legal force.
We decline to opine on whether the Dual Language Model satisfies the SEI requirements of Prop. 203. The Board's approval of the Dual Language Model (and other ELL models) is subject to a detailed and complex process involving technical expertise. Second-guessing that determination would require a fact-intensive inquiry into the Board's processes, the contents of the Dual Language model, and a comparison of those contents to the ELL Statutes. This is not the type of record on which an official legal determination should be made.
Conclusion
Only the Board has the statutory authority to exclude the Dual Language Model from the list of approved SEI models and to declare a school noncompliant and ineligible for ELL funds. The Superintendent does not have authority to impose any consequences on, or withhold any monies from, a school district or charter school that utilizes a Board-approved SEI Model absent a finding of noncompliance by the Board.
Kris Mayes
Attorney General