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 remained approved, and the opinion says districts and charter schools may use it. Footnote 22 says no parental waiver is required for schools using this Board-approved model to serve ELLs.

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 assigns authority under the statutes then in force: the Board approves or modifies SEI models and makes final noncompliance findings; the Department monitors and refers schools to the Board. The Superintendent’s June 2023 statement lacked legal force as a formal legal opinion.

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.

The AG read the statutory assignments of authority together. 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

STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL

ATTORNEY GENERAL OPINION
No. I23-005
(R23-013)
By
Re: Which state entity has statutory authority
KRIS MAYES
to eliminate a model of structured English
ATTORNEY GENERAL
immersion approved by the State Board of
Education
July 17, 2023

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.” 1 To effectuate this intent, Prop. 203 repealed and replaced Title 15, Chapter 7, section 0F

3.1 of the Arizona Revised Statutes (“ELL Statutes”). The language added by Prop. 203 provides,

in relevant part, 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, also added by Prop. 203, provides that the “requirements of section 15-

752 may be waived” by parental consent, allowing an ELL to be taught “English and other subjects

through bilingual education techniques or other generally recognized educational methodologies

permitted by law.” Prop. 203 defines “sheltered English immersion” as
an English language acquisition process for young children in which nearly all classroom instruction is in English but with the curriculum and presentation designed for children who are learning the language. Books and instructional materials are in English and all reading, writing, and subject matter are taught in English. Although teachers may use a minimal amount of the child’s native language when necessary, no subject matter shall be taught in any language other than English, and children in this program learn to read and write solely in English.

A.R.S. § 15-751(5).

1
Proposition 203, (2000),
https://apps.azsos.gov/election/2000/Info/pubpamphlet/english/prop203.htm#:~:text=Proposition
%20203%20allows%20parents%20to,their%20child%20has%20special%20needs.

2
In 2006, the legislature passed H.B. 2064, which added sections 15-756 through -756.13

to the ELL Statutes. 2 The bill appropriated funds to support ELL programs and established the 1F

Arizona English Language Learners Task Force, which was directed to create and approve

models for SEI instruction. 3 The bill required that the SEI models include a minimum of four 2F

hours of English language development. 4 Further, the bill created the Office of English Language 3F

Acquisition Services within the Arizona Department of Education (the “Department”) and tasked

it with monitoring schools’ progress as they implemented their ELL programs. 5 4F

In 2013, the legislature amended the ELL Statutes, in part to dissolve the ELL Task Force

and transfer its authority, powers, and duties to the Board. 6 In 2019, the legislature again amended 5F

the ELL Statutes. Senate Bill 1014 passed unanimously and changed the required minimum

amount of English language development contained in SEI models from four hours to 120 minutes

per day for students in Kindergarten through fifth grade, and 100 minutes per day for students in

grades six through twelve. 7 Further, the bill directed the Board to establish a framework for 6F

evaluating research-based models and required that the framework meet certain criteria. 8 The bill 7F

also made changes to the evaluation process carried out by the Department. 9 8F

2
H.B. 2064, 47th Leg., 2nd Reg. Sess. (Ariz. 2013),
https://www.azleg.gov/legtext/47leg/2R/laws/0004.pdf.
3
Id. § 15-756.01.
4
Id.
5
Id. § 15-756.07, -756.08.
6
Ariz. State Senate Fact Sheet for H.B. 2425, 51st Leg., 1st Reg. Sess. (March 25, 2013), https://www.azleg.gov/legtext/51leg/1r/summary/s.2425ed_aspassed.pdf. 7 Ariz. State Senate Fact Sheet for S.B. 1014, 54th Leg., 1st Reg. Sess. (Feb. 28, 2019), https://www.azleg.gov/legtext/54leg/1R/summary/S.1014ED_ASENACTED.DOCX.htm. 8 Id. 9 Id.

3
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. 10 9F

On June 19, 2023, the Superintendent for Public Instruction issued a statement purporting

to declare that the Dual Language Model violates Prop. 203. 11 The statement warned schools that 10F

“[a]ny district or school that continues placing English Language learners into dual language

classes, without the requisite parental waivers, should be aware of the legal consequences.” 12 The 11F

statement cited a three-page memo from the General Counsel of the Legislative Council that was

prepared for State Senator Sonny Borrelli. 13 The memo states that the Dual Language Model 12F

“likely violates Proposition 203.” 14
13F

The Department’s Office of English Language Acquisition Services then sent a letter to

Arizona school districts on June 20, 2023, stating that it had been “advised from the Arizona

Legislative Council … that the 50-50 Dual Language Immersion SEI Model of the Structured

English Immersion Models approved by the State Board of Education in January 2020 is in

10
Arizona Board of Education Board Notice of Public Meeting (January 27, 2020), Item 4A, “Approval of Research-Based Structured English Immersion and Alternative Models of English Instruction,” https://simbli.eboardsolutions.com/SB_Meetings/ViewMeeting.aspx?S=112020&MID=1128; Arizona Department of Education, “50-50 DLI Model,” https://www.azed.gov/sites/default/files/2020/01/50- 50%20Dual%20Language%20Immersion%20Model%2003.27.2020.pdf?id=5e348a0503. 11 Superintendent Tom Horne, Letter, “Re: English Language Learner,” June 19, 2023, https://www.azed.gov/sites/default/files/2023/06/English%20Language%20Learners%20DRAFT
%204%20%20FINAL.pdf.
12
Id.
13
Arizona Legislative Council Memo (May 31, 2023),
https://www.azed.gov/sites/default/files/2023/06/36%20Proposition%20203%3B%2050- 50%20dual%20laguage%20immersion%20model.pdf 14 Id. at 3.

4 violation of Proposition 203.” 15 The letter informed schools that, “[e]ffective immediately, the 14F

50-50 Dual Language Immersion Model is hereby eliminated as a model of Structured English

Immersion.” 16 The letter further stated that, in order to continue placing ELL students in a dual 15F

language immersion program, a school must “comport with the use of the bilingual parental waiver

for English Language Learners as codified in law within Proposition 203 and ARS 15-753.” 17 16F

On June 30, 2023, four legislators on the House Education Committee submitted a joint

request for an Opinion from this Office seeking guidance regarding whether the Dual Language

Model remains an approved SEI model and whether schools that implement the Dual Language

Model may lose access to ELL funds.

Analysis

I. 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 of Public Instruction are

prescribed by the legislature. Ariz. Const. art. V, § 9 (“The powers and duties of … [the]

superintendent of public instruction shall be as prescribed by law.”); Ariz. Const. art. XI, § 3

(stating the powers and duties of the Board shall be as “prescribed by law”). 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

15
Arizona Department of Education, Letter (June 20, 2023), https://www.azed.gov/sites/default/files/2023/06/Emailed%20Communication-50- 50%20Dual%20Language%20Immersion%20Letter%20to%20LEAs%20_6.20.23.pdf. 16 Id. 17 Id.

5 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

in accordance with the guidelines provided in § 15-756.08. The purpose of this monitoring is to

assess “programmatic effectiveness” and to ensure that schools are providing legally adequate ELL

services to facilitate English proficiency. A.R.S. § 15-756.08(B).

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 established by section 15-756.04 for English

language learners.” Id.

The ELL Statutes do not authorize either the Superintendent or the Department to eliminate

or modify an existing SEI model approved by the Board. See A.R.S. § 15-756.01(G).

Additionally, the ELL Statutes do not authorize the Superintendent or the Department to determine

6 that a school district or charter school is not in compliance with the ELL Statutes. See A.R.S. §

15-756.08(J). 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, as explained above. Id. (C), (E)–(J). Finally, the ELL Statutes do not

authorize the Superintendent or the Department to withhold ELL funding from a school district or

charter school absent a finding of noncompliance by the Board. Id. (J).

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. School districts and charter schools may implement any SEI

model approved by the Board, including the Dual Language Model, and only the Board has the

authority to determine whether school districts and charter schools are in compliance with the ELL

Statutes. A.R.S. § 15-756.01(G); § 15-756.08(J).

Additionally, just as the Superintendent lacks authority to make final determinations

regarding whether schools are in compliance, the Superintendent also lacks authority to issue

formal legal opinions on school matters. The legislature has assigned the task of writing legal

opinions (and approving opinions issued by county attorneys) relating to school matters to the

Attorney General. A.R.S. § 15-253(B). This section further instructs the Superintendent to

distribute copies of “attorney general opinions … relating to school matters to all county attorneys

[and] county school superintendents.” Id. (A)(1). The Superintendent also must “[r]equire each

county school superintendent to furnish copies of all attorney general opinions relating to school

matters to all school districts in his county.” Id. (A)(2). Any legal opinion issued by the

Superintendent—like the Superintendent’s June 19 statement—lack legal force.

7
In sum, the Board has sole statutory authority to delete or modify an SEI model. Further,

the Board holds the authority to make the final determination as to whether a school district or

charter school is noncompliant and ineligible for ELL funding. Neither the Department nor the

Superintendent has statutory authority to reject an SEI model approved by the Board, or to declare

its illegality. Nor does the Superintendent or the Department have authority to withhold monies

from school districts or otherwise impose consequences on schools for utilizing the Dual Language

Model.

II. We decline to opine on whether the Dual Language Model satisfies the SEI requirements of Prop. 203.

In 2019, the legislature made substantial amendments to the ELL statutory scheme. 18 The 17F

amendment reduced the required amount of English language development time for SEI models.

A.R.S. § 15-756.01(A). That statute also requires that SEI models must be “research-based” and

must be “the most cost-efficient models that meet all state and federal laws.” Id. (D). Prior to

approval, the Board is also required to submit SEI and alternative models to the joint legislative

budget committee for review; the Board must also submit the models to the president of the senate,

the speaker of the house, and the governor. § 15-765.01(F). And whenever “adopting, approving

or modifying” ELL programs, the Board must “review and consider the information and data

obtained” by the Department in its monitoring of ELL programs under § 15-756.08. Id. (G).

The new provisions also required that the Board create a framework for evaluating potential

SEI models. Id. (I). The framework must ensure that all approved models include the following:

“coherent instruction aligned with this state’s English language proficiency standards”; “oral and

written language instruction, including structured opportunities to develop verbal and written skills

18
See Ariz. State Senate Fact Sheet for S.B. 1014, supra note 7.

8 and comprehension strategies”; “access to complex language content through grade-level

textbooks with appropriate supports”; and “parental engagement.” Id. In sum, the Board’s

approval of the Dual Language Model (and other ELL models) is subject to a detailed and complex

process involving technical expertise.

The Attorney General does not issue all opinions that are requested. For example, the

Attorney General will typically decline to issue opinions that: (1) address matters pending before

a court, Ariz. Att’y Gen. Op. I81-137; but see Ariz. Att’y Gen. Op. I91-002; or (2) respond to legal

questions from constituents or third parties, Ariz. Att’y Gen. Ops. I78-81, -83. When called upon

to address the constitutionality of a statute, the Attorney General presumes a statute is

constitutional and will find otherwise only when the statute is clearly or patently unconstitutional.

See Ariz. Att’y Gen. Op. I83-069 (“Because the Attorney General has the duty to uphold and

defend state laws, we will not opine that a statute is unconstitutional unless it is patently so.”).

By the same token, this Office should generally be reluctant to issue an official Opinion

stating that a particular official action by a state agency is contrary to law. That is especially true

when the agency action requires subject matter expertise and a detailed administrative decision-

making process that the legislature has directed the agency, rather than this Office, to undertake.

See A.R.S. § 41-193(A)(7) (providing that upon request from certain elected or appointed officials,

the Attorney General shall “render a written opinion on any question of law relating to” the office

of the requesting party) (emphasis added); Ariz. Att’y Gen. Op. I13-009 (“We decline to answer

questions of fact.”) (citing A.R.S. § 41-193(A)(7)); Ariz. Att’y Gen. Op. I90-007 (declining to

offer opinion where question would depend on “particular facts or circumstances”); Ariz. Att’y

Gen. Op. I80-236 (expressing no opinion where doing so would require “an analysis of individual

fact situations”); cf. Moulton v. Napolitano, 205 Ariz. 506, 511 ¶ 9 (App. 2003) (the doctrine of

9 administrative exhaustion “allow[s] an administrative agency to perform functions within its

special competence—to make a factual record, to apply its expertise, and to correct its own errors

so as to moot judicial controversies”); Sharpe v. Ariz. Health Care Cost Containment Sys., 220

Ariz. 488, 492 ¶ 9 (App. 2009) (stating courts evaluate agency action by considering whether the

action “was supported by the law and substantial evidence”) (emphasis added).

In this case, the legislature has assigned to the Board the authority to adopt SEI models.

The Board has adopted several such models, including the Dual Language Model. 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.

The complex nature of this inquiry is acknowledged in the Legislative Council memo cited by the

Superintendent in his statement. 19 The memo’s author states they were “able to identify only one 18F

document that discusses the 50-50 dual language immersion model,” indicating that the document

was found in an online search, without any context or verification from the Board. 20 The memo 19F

further states that the document “is technical in nature” and that the memo’s author was “unable

to deduce from the document how exactly the model is to be implemented.” 21 20F

This is not the type of record on which an official legal determination should be made, and

this Office declines to attempt such a fact-dependent analysis in the context of an official request

for an Opinion, which does not involve public hearings or other taking of evidence. The Board

has approved the Dual Language Model as a model of SEI instruction, and school districts and

charter schools remain entitled to rely on that approval.

19
See Arizona Legislative Council Memo, supra note 13 at 2. 20 Id. 21 Id.

10
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. 22 21F

Kris Mayes
Attorney General

22
Because the Dual Language Model is a Board-approved SEI model, no waiver is required for schools that utilize the Dual Language Model to serve ELLs. See §§ 15-752, -753, -756.01(A).

11