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.
By MAURA DOLAN, NICK ANDERSON, Times Staff Writers
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,"
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
At least 38 school districts, including nearly
a dozen in Southern California, have filed petitions for waivers with the
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
The board may grant some and deny others,
Hersher said. "I assume they will go all different ways," he
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
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
During an hourlong hearing that preceded the ruling, she told the court
she saw "no reasonable probability of the success of these [three]
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.