Contra Costa Times
Thursday, May 7, 1998
Lawsuits Against Teachers a Possibility
Opponents of the June ballot initiative that would eliminate bilingual education programs statewide fear Proposition 227 would set a dangerous precedent by instigating lawsuits against educators.
Under Prop. 227, teachers and administrators could be held "personally liable" for not implementing the English-based teaching method loosely outlined in the initiative. Backers say the provision is the teeth of Prop. 227, meant to keep teachers from sidestepping the law should voters approve it June 2.
Under most state laws, the school district is liable for teacher conduct. Not so with Prop. 227.
Eugene Garcia, the dean of UC-Berkeley's Education Department and an expert in education policy, said he knows of no other state or federal law -- other than criminal laws -- that hold teachers personally liable for classroom conduct.
"I'd say it immediately chills the educational climate and takes away some important degree of professional judgment," Garcia said. "You're certainly going to be looking over your shoulder for the language police."
The initiative says school board members, administrators and teachers "who willfully and repeatedly" refuse to implement the law "may be held personally liable for fees and actual damages by the child's parents or legal guardian."
Initiative author Ron Unz, a Silicon Valley businessman, said the words "willfully" and "repeatedly" set a high standard.
"What our initiative says is that parents have the right to sue for the enforcement of this provision," Unz said. "We are talking about people who would be violating the law."
He says the opponents are raising the specter of litigation and distorting Prop. 227's impact on teachers to undermine support for the initiative, which has had widespread backing in recent polls. And he doesn't believe the provision is a departure from the status quo, because teachers already can be held personally liable for violating laws -- laws that prevent assault or other criminal acts.
But Thomas Griffin, a Sacramento lawyer who specializes in education law, said Prop. 227 could set a new precedent.
He said normally teachers are personally liable for criminal misdeeds that occur outside their duties as educators or for violating a child's civil rights -- not for implementing a certain teaching method.
"This is the only subject where an educational approach will be prohibited no matter what the research says is effective," Griffin said.
However, he believes school districts would defend employees sued under Prop. 227, even if the law doesn't require it.
Union lawyers call it a violation of teacher rights.
"It's unprecedented to hold teachers liable for curriculum matters," said Priscilla Winslow, a staff attorney for the California Teachers Association, which opposes Prop. 227.
She offered one of many hypothetical stories circulating statewide: A student finishes the special one-year sheltered immersion method mandated by the initiative and then enrolls in an English-based math class the following year. The student doesn't understand the arithmetic lessons so the teacher tutors him or her in Spanish for an hour each day. A disgruntled parent then sues the teacher for violating the new law.
In a country where a spilled cup of hot coffee is good grounds for a lawsuit, some lawyers say the scenario isn't far-fetched. But even if teachers aren't sued, the threat of litigation may be enough to keep bilingual teachers in line.
"The teacher has to think twice, do I risk it?" said Joe Jaramillo, a staff attorney with the Mexican American Legal Defense and Education Fund. "Do I want to leave any possibility that the district won't come to my defense and that I'll have to pay out of my own pocket?"
The Unz camp says the initiative will give parents the power to ensure that their children are being taught "overwhelmingly" in English and simply won't result in a rash of lawsuits against teachers.
"If this intimidates teachers into obeying the will of the people, obeying the law and obeying the parents, that's exactly why we put it in there," Unz said.
Some teachers say they would comply with the law. But others say legal threats won't keep them from using native languages to help students understand school lessons.
Many say they believe the law could prevent them from occasionally speaking Spanish, even though Prop. 227 does not go that far.
"In today's day and age, it's possible that someone will try to sue a teacher, and that could be me," said Jennie Lund, a first-grade teacher at Brentwood Elementary School. "I wouldn't stop speaking Spanish to someone if I needed to, if someone was crying and needed comforting."
Lund, who has five Spanish speakers in her class, said she will help a child in his native language, even if it means risking a lawsuit.
Some teachers in Ventura County recently vowed to practice civil disobedience by speaking foreign languages in class if the initiative becomes law. At a forum in Berkeley last month, a few teachers talked about stirring up a noncompliance movement statewide.