Los Angeles Times

Friday, August 28, 1998

Bilingual Teaching Backers Win Key Court Decision
Schools: State cannot reject districts' waiver petitions automatically under Prop. 227, judge rules.

OAKLAND--California school districts that want to maintain their bilingual education programs scored an important court victory Thursday when a judge ordered the State Board of Education to consider their requests to waive enforcement of Proposition 227.
     Unless the decision is overturned on appeal, school districts now may be able to obtain waivers to avoid dismantling bilingual programs for as long as two years. If the state board rejects the waivers, the districts can challenge the denials in court.
     The ruling, which affects at least 38 school districts, was the first legal victory for opponents of Proposition 227 and may create confusion just as most children are returning to school.
     The court action also puts unusual pressure on the state board.
Filled with appointees of Gov. Pete Wilson and former Gov. George Deukmejian, the board has been skeptical of bilingual education and reluctant to buck voter sentiment. But if the board denies the requests, the districts can bring costly litigation against the state.
     Board Vice President Robert L. Trigg said Thursday that it "would be a mistake to just approve every waiver that came through."
     "I know we are not going to be a rubber-stamp," he said.
William Quinn Jr., who represented the Oakland, Berkeley and Hayward school districts in the case that triggered the ruling, called it "a big victory for the proponents of public education."
     "I do not expect this ruling to be the end of Proposition 227," he said. Rather, he said, the court decision shows that the new law "is an option and districts can be excluded from complying if they can show their program meets the needs of their students."
     At least 38 school districts, including nearly a dozen in Southern California, have filed petitions for waivers with the state board.
     California law says the State Board of Education "shall approve any and all requests for waivers" except in certain cases. The exceptions include a finding by the board that the educational needs of the students "are not adequately addressed" or the waiver would substantially raise state costs.
     The board routinely allows districts to avoid certain provisions of education laws, and also often denies such requests. But the board said it had no authority to waive enforcement of a voter initiative. Although Proposition 227 did not specifically prohibit waivers, state lawyers argued that voters intended they be barred when Californians dismantled bilingual education.
     Alameda County Superior Court Judge Henry Needham Jr. disagreed, ruling that the board must consider the petitions. As a result, they will be placed on the state board's agenda within two weeks, said Michael E. Hersher, general counsel of the state Department of Education.
     The board may grant some and deny others, Hersher said. "I assume they will go all different ways," he said.
     Celia M. Ruiz, a lawyer who also represented the three districts, said she expects the state board to grant their waivers because to do otherwise would invite litigation. She said the law is strict and puts the burden on the board to show that a waiver would hurt students.
     "They can't deny them waivers," she said. In the meantime, she said, she will advise the districts to continue their normal bilingual programs.
     But state officials said the districts should follow the law, emphasizing that the ruling did not block Proposition 227. The Department of Education, however, has said it will be at least a few months before that agency will have a complete plan to implement the initiative.
     Bill Lucia, executive director of the state board, said the board retains "significant" flexibility in considering waivers and frequently denies them by citing a provision of state law that safeguards the "educational needs" of students.
     If the ruling stands, board meetings in Sacramento will once again be the staging area for the long-running, bitter debate over the effectiveness of bilingual education versus English immersion. That in itself would be a defeat for the proponents of Proposition 227, who argue that the matter has been forever, irrevocably resolved at the ballot box.
     Sheri Annis, spokeswoman for the pro-Proposition 227 organization, English for the Children, said she doubted the state board would approve the waivers.
     "It's outrageous that the state board is being told that they must consider second-guessing California voters," she said. Voters approved Proposition 227 by a 61% majority.
     The law, which also allows parents to sue school districts for not enforcing the proposition, took effect Aug. 3. On that day, the Los Angeles Unified School District began a revised program of instruction for thousands of students with limited English skills--though critics say the district has not gone far enough.
     Lawyers on all sides of the case said the court action, directed at the three Bay Area districts, will affect requests for waivers from other districts too.
     "If they have to consider these three, they have to consider them all," said Hersher of the Department of Education. "We may get a whole bunch more."
     Deputy Atty. Gen. Angela Botelho, representing the Board of Education, said a decision on whether to appeal has not been made.
During an hourlong hearing that preceded the ruling, she told the court she saw "no reasonable probability of the success of these [three] waiver requests."
     The three districts are asking for broad waivers that would allow them to continue all the programs that were in place before passage of the anti-bilingual education initiative. Some districts have requested waivers only of some of the law's provisions or asked for a one-year delay to develop new programs.
     Botelho argued that districts should be able to get new programs in place to meet the requirements of the law. "Los Angeles put a completed plan into place and it survived a legal challenge," the board lawyer said. "So it can be done."
     Earlier this summer, two federal judges ruled in separate lawsuits that Proposition 227 could go forward, rejecting requests by bilingual education advocates for injunctions to block the measure.
Times staff writer Louis Sahagun contributed to this story.