State Board of Education 127-000
721 Capitol Mall
Sacramento, CA 95814
Re: Comments Concerning Proposed Regulations on Reclassification of English Learners
Dear Members of the Board:
I represent Ron Unz, the proponent of Proposition 227 (Education Code Sections 300-340) and his organization, English for the Children. I am writing on his behalf to formally object to certain provisions set forth in the State Board of Education's proposed regulations concerning English Learners (Item 31).
We are dismayed to see that several provisions of Section 11309 of the proposed regulations ("Parental Exception Waivers") sharply conflict with the text and intent of Proposition 227.
On June 3, 1998, California voters passed Proposition 227 by well over a million votes, one of the greatest landslides for any contested initiative in recent California history. Aimed at replacing California's system of bilingual education with intensive English immersion, the measure passed by a percentage margin greater than that achieved by Gov. Gray Davis in his 1998 landslide victory over Republican Dan Lungren - and nearly twice as great as Al Gore's 2000 Presidential vote victory in California over George W. Bush. Since the passage of the measure, the mean percentile test scores of California's more than one million immigrant students have risen by an average of 50%, a dramatic result extensively covered in much of the major national media, from the New York Times to the Washington Post to CBS News. Most analysts have strongly connected these results with Proposition 227.
All aspects of the measure have been upheld by a series of federal court rulings. No challenge to the constitutionality of Proposition 227 has been upheld. See Valeria G. v. Wilson, 12 F. Supp. 2d 1007 (N.D. Cal. 1998), and California Teachers Ass'n v. Davis, 64 F. Supp. 2d 945 (C.D. Cal. 1999) , aff'd, 271 F.3d 1141 (9th Cir. 2001).
The founder of the California Association of Bilingual Educators has declared himself a born-again convert to English immersion, and became one of the strongest backers of Proposition 227.
Despite these facts, some diehard supporters of bilingual education have undertaken a quiet campaign of lobbying and political pressure to reverse the decision of California's voters. This campaign has now culminated in proposed regulations by California's unelected State Board of Education that would absolutely violate both the letter and the spirit of the measure.
Because Proposition 227 was passed by a vote of the people in accordance with the provisions of Article II, Section 8 of the State Constitution, the State Board of Education is prohibited from issuing regulations that would amend or alter the provisions, or purpose, of Proposition 227.
Education Code Section 335 explicitly states: "The provisions of this act [Proposition 227] may be amended by a statute that becomes effective upon approval by the electorate or by a statute to further the act's purpose passed by a two-thirds vote of each house of the Legislature and signed by the Governor." The State Board of Education has no authority to override this procedure, notwithstanding the views of some supporters of bilingual education that they can obtain from the State Board what they lost at the polls.
1. First Thirty Days in English Each Year
Section 11309(2) of the proposed regulations states:
Pursuant to Education Code section 311(c), parents and guardians must be informed that the pupil must be placed for a period of not less than thirty (30) calendar days in an English language classroom and that the school district superintendent must approve the waiver pursuant to guidelines established by the local governing board. Once a waiver has been granted and a pupil has been enrolled in an alternative program, the pupil does not have to be placed in an English language classroom for another 30-day period in subsequent years, as long as the pupil is enrolled in the alternative program. The waiver must be renewed on a yearly basis.
In contrast to the proposed regulation, Education Code Section 310 provides that the requirements of Section 305 may be waived "with the prior written informed consent, to be provided annually, of the child's parents or legal guardian under the circumstances specified below and in Section 311."
Section 311(c) provides that a parental exception waiver may be granted under Section 310 as to English learners who are under 10 years old if certain conditions are met, including the condition that "the child has been placed for a period of not less than thirty days during that school year in an English language classroom . . . ." (Emphasis added.)
The text of these provisions clearly requires that English learners younger than ten spend the first thirty days of each school year in an intensive English immersion program before their parents can apply for a bilingual education waiver, ensuring that parents are able to decide each year whether or not their students are ready for an English curriculum. The proposed regulations completely violate this requirement, repeatedly stating that the thirty-day provision only applies to the first year the waiver is solicited. In requiring that the pupil be placed in an English language classroom only in the first year that a waiver is granted - and stating that the pupil does not have to be placed in an English language classroom for another 30-day period in subsequent years so long as the pupil is enrolled in the alternative program - the proposed regulation will not withstand judicial scrutiny. The regulations flatly ignore the words "that school year" in Section 311(c), and thus seriously conflict with the text of the measure. Such an attempt to amend the clear meaning of Proposition 227 must be directed to the Legislature or the electorate, because it falls beyond the power of the State Board of Education.
Any argument that the proposed regulations do not conflict with the text of Proposition 227, as to the requirement of an English language classroom for thirty days each year, simply does not pass the straight-face test.
Even the Mexican-American Legal Defense and Education Fund (MALDEF), one of the most prominent opponents of Proposition 227, has voiced its agreement with the plain meaning of the annual thirty-day requirement. In MALDEF's "Preliminary Section-by-Section Analysis of Unz Initiative," dated September 19, 1997 (copy enclosed as Exhibit A hereto), MALDEF stated, at pages 6-7:
The Unz initiative permits parents to request "waiver" out of the requirement of English-only instruction. To secure a waiver, the parent must apply in writing, annually and in person, at the school. However, a parent cannot apply for a waiver unless the child meets any of three narrowly defined exceptions: (1) the child already knows English and scores above average for his/her grade level in standardized tests of English vocabulary, comprehension, reading and writing, or scores above the 5th grade average, whichever is lower; (2) the child is over 10 years old and the principal and school staff believe another program would be better for the child to acquire basic English language skills; (3) the child has (a) "special physical, emotional, psychological, or educational needs"; (b) the child has spent at least 30 days each year in the main English-only classroom; (c) a written description of the special needs is submitted; and (d) the school superintendent approves. [Emphasis added.]
The State Board of Education should be skeptical of any attempt by the opponents of Proposition 227 to reverse direction on this issue.
2. Initiation of Waivers.
The plain language of Proposition 227 requires that the parents of limited English students be the ones to initiate any waiver request under the initiative, requiring them to take a positive step in favor of bilingual education or some other program. Yet the proposed regulations completely contradict this, allowing school administrators and bilingual education teachers to initiate parental waivers in support of bilingual education.
Section 310 of the initiative reads:
The requirements of Section 305 may be waived with the prior written informed consent, to be provided annually, of the child's parents or legal guardian under the circumstances specified below and in Section 311. Such informed consent shall require that said parents or legal guardian personally visit the school to apply for the waiver and that they there be provided a full description of the educational materials to be used in the different educational program choices and all the educational opportunities available to the child.
By contrast, Section 11309(4) of the proposed regulations would improperly allow school administrators and bilingual education teachers to initiate a parental waiver request, and merely inform parents of their right to refuse the waiver. Section 11309(4) states:
Pursuant to Education Code sections 311(b) and (c), the school principal and educational staff may initiate a waiver request or they may recommend a waiver to a parent. Parents and guardians must be informed in writing of any waiver request for an alternative program initiated by the school principal and educational staff and must be given notice of their rights to refuse to agree to the waiver. The notice shall include a full description of the recommended alternative program and the educational materials to be used for the alternative program as well a description of all other programs available to the pupil.
Thus, under the proposed regulations, pro-bilingual education school administrators and bilingual education teachers could freely reestablish bilingual education as the default educational option for English learners at their local school - in explicit violation of the terms of Proposition 227. This would fly in the face of the intent of Proposition 227, and is plainly beyond the authority of the State Board of Education.
3. Mandatory Approval of Waivers by Schools
Proposition 227 only allows schools to grant waivers for bilingual education programs when they have reason to believe that the waiver is in the best interests of the child. In particular, Article 3, Section 311(c) states that English learners younger than ten years may be granted waivers for a bilingual program only when:
[I]t is subsequently the informed belief of the school principal and educational staff that the child has such special physical, emotional, psychological, or educational needs that an alternate course of educational study would be better suited to the child's overall educational development.
Furthermore, schools are not required to offer bilingual education programs at their site unless at least 20 students or more of a given grade level have been granted such waivers. Article 3, Section 310 of the initiative reads in part:
Individual schools in which 20 students or more of a given grade level receive a waiver shall be required to offer such a [bilingual education] class; otherwise, they must allow the students to transfer to a public school in which such a class is offered.
By contrast, the proposed regulations seem to place restrictions on the grounds by which a school may deny such a waiver. Section 11309(3) of the proposed regulations states that:
"School districts should not deny any parental waiver request solely on the grounds that the school district site has no alternative program."
Clearly, the initiative text states that students who are granted bilingual education waivers need not be offered a class at their local school; they need only be provided the right to transfer to some other public school that does offer a bilingual education program. Requiring all local school to offer non-English-oriented programs is patently inconsistent with the text of the initiative.
Again, our interpretation of the plain language of Proposition 227 on this issue is strongly seconded by that of MALDEF's 1997 legal analysis of the initiative (Exhibit A hereto). The MALDEF analysis states, at page 7:
The Unz initiative [Proposition 227] gives school districts unlimited discretion to approve or deny waivers, without providing any standards for denial or providing any appeal procedure from a district's refusal to grant a waiver. . . . Additionally, even if a parent satisfies these requirements, the initiative provides districts with such unbounded discretion that the waiver could still be denied for any reason.
We respectfully submit that the proposed regulations discussed above are ill-considered and improper. Because they are inconsistent with the text and the intent of Proposition 227, they should be rejected by the State Board of Education.
Very truly yours,
Manuel S. Klausner
cc: Ray Belisle, Esq.