MALDEF Brief

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The Case Against Proposition 227

Plaintiffs’ Legal Brief Requesting a Preliminary Injunction

Filed June 10, 1998


Hearing scheduled for July 15, 1998, 2:30 p.m.


U.S. District Court, San Francisco


Courtroom 10, Hon. Charles A. Legge




Antonia Hernández, SBC No. 061489


Theresa Fay-Bustillos, SBC No. 99408


Thomas Saenz, SBC No. 159430


Silvia Argueta, SBC No. 144400


Maribel S. Medina, SBC No. 189512


MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 S. Spring Street


Los Angeles, CA 90014


Telephone: (213) 629-2512

Joseph Jaramillo, SBC No. 178566


MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND


182 Second Street, Second Floor


San Francisco, CA 94105


Telephone: (415) 543-5598 Peter D. Roos, SBC No. 41228


Deborah Escobedo, SBC No. 89093


MULTICULTURAL EDUCATION, TRAINING AND ADVOCACY, INC.


785 Market Street, Suite 420


San Francisco, CA 94103


Telephone: (415) 546-6382

[Listing of counsel continued on third page]



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA



VALERIA G., through her parent and next friend, YOLANDA G.; J.W.P., through her parent and next friend, S.P.; ANGEL V., through his parent and next friend, S.A.P.; ROSALINDA O., through her parent and next friend, MARTA O.; DAVID R., through his parent and next friend, DAVID R.; HILDA M., through her parent and next friend, MARIA M.; O.G., through his parent and next friend, DORA G.; ELIZABETH S., through her parent and next friend JOSE S.; MUJERES UNIDAS Y ACTIVAS;



PARENTS FOR UNITY; CHINESE FOR AFFIRMATIVE ACTION; CALIFORNIA LATINO CIVIL RIGHTS NETWORK; NATIONAL COUNCIL OF LA RAZA; and SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE OF GREATER LOS ANGELES; for themselves and on behalf of all those similarly situated,

Plaintiffs,



v.



PETE WILSON, in his official capacity as the Governor of the State of California; STATE BOARD OF EDUCATION, and its members, YVONNE W. LARSEN, ROBERT L. TRIGG, TIMOTHY C. DRAPER, KATHRYN DRONENBERG, MARION JOSEPH, MEGAN KEPHART, MARION MCDOWELL, JANET NICHOLAS, GERTI B. THOMAS, and MARINA TSE; and DELAINE EASTIN, in her official capacity as the STATE SUPERINTENDENT OF PUBLIC INSTRUCTION,

Defendants.

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No. C 98-2252 CAL



MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION




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John Affeldt, SBC No. 154430


Mark Savage, SBC No. 141621


Martha I. Jiménez, SBC No. 128536


PUBLIC ADVOCATES, INC.


1535 Mission Street


San Francisco, CA 94103


Telephone: (415) 431-7430


Edward M. Chen, SBC No. 95790


ACLU FOUNDATION OF NORTHERN CALIFORNIA


1663 Mission Street, Suite 460


San Francisco, CA 94103


Telephone: (415) 621-2493


Christopher Ho, SBC No. 129845


Joannie C. Chang, SBC No. 187749


Marielena Hincapié, SBC No. 188199


The EMPLOYMENT LAW CENTER,


A Project of the LEGAL AID SOCIETY OF SAN FRANCISCO


1663 Mission Street, Suite 400


San Francisco, CA 94103


Telephone: (415) 864-8848


Mark D. Rosenbaum, SBC No. 59940


Rocio L. Cordoba, Of Counsel


ACLU FOUNDATION OF SOUTHERN CALIFORNIA


1616 Beverly Boulevard


Los Angeles, CA 90026


Telephone: (213) 977-9500


Stewart Kwoh, SBC No. 61805


Julie Su, SBC No. 174279


Bonnie Tang, SBC No. 166700


ASIAN PACIFIC AMERICAN LEGAL CENTER


1010 South Flower Street, Suite 302


Los Angeles, CA 90015


Telephone: (213) 748-2022


Lora Jo Foo, SBC No. 121893


Frank Tse, SBC No. 155653


ASIAN LAW CAUCUS, INC.


720 Market Street, Suite 500


San Francisco, CA 94102


Telephone: (415) 391-1655

Attorneys for Plaintiffs


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TABLE OF CONTENTS

Table of Authorties iv

I. INTRODUCTION 1

II. STATEMENT OF THE FACTS 3

California’s Limited-English Proficient Children 3

The Services Provided LEP Students Before Proposition 227 3

The Changes Mandated By Proposition 227 6

III. THE STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF 9

IV. IRREPARABLE HARM WILL RESULT ABSENT PRELIMINARY RELIEF 10

A. The Inherent Irrationality of Proposition 227 and Its Consequences 11

1. The “One-Year-and-Out” Provision 11

2. The Denial of Equal Access to the Curriculum 14

3. The Replacement of Individual Assessments of Need with a Prescriptive, “One-Size-Fits-All” Program 15

4. Exclusion of Parental Participation 19

5. Administrative Chaos 21

V. PLAINTIFFS’ CLAIMS ARE MERITORIOUS AND RAISE “SERIOUS QUESTIONS” CONCERNING THE LEGALITY OF PROPOSITION 227 24

A. PROPOSITION 227 WILL INEVITABLY RESULT IN STATE AND LOCAL VIOLATIONS OF THE EQUAL EDUCATIONAL OPPORTUNITIES ACT 24

1. Proposition 227 Will Force State Educational Agencies To Violate The Responsibilities Squarely Placed Upon Them By The EEOA 25

2. In Addition to Violating the State’s Supervisory Duties, Proposition 227’s Program is So Flawed That It Would Violate the EEOA Were It To Be Implemented By a Local School District 29

a. The Program Prescribed Under Proposition 227 Is Not Based On a Sound Educational Theory for Assuring Either Sufficient English Language Acquisition And Literacy or Equal Access to the Curriculum 31

i. Proposition 227’s One-Year Limit on English Acquisition 31

ii. Proposition 227’s Denial of Access to Curriculum 32


b. The Program Prescribed by Proposition 227 Fails to Assure Effective Implementation of Its Educational Theory, and Its Adequate Evaluation 34

i. Proposition 227 Fails to Ensure that Teachers are Qualified To Teach Under the New Program 34

ii. Proposition 227 Fails to Establish an Evaluation System and Eliminates The Capacity for Change 34

c. The Program Prescribed by Proposition 227 Fails to Assure Flexibility in Response to Evaluative Outcomes 35

i. Proposition 227 Fails to Assess the Individual Needs of Each Student and Permit Tailoring of Specific Programs to Meet Those Needs 35

3. Conclusion 36

B. PROPOSITION 227 ALSO VIOLATES THE SUPREMACY CLAUSE BY CREATING AN OBSTACLE TO IMPLEMENTATION OF THE EEOA AND VIOLATING CONGRESSIONAL POLICY FAVORING PRIMARY LANGUAGE INSTRUCTION 37

1. Proposition 227 Impedes Local School Districts in Their Efforts to Comply With Their Own Obligations Under the EEOA 38

2. Proposition 227 Impermissibly Bars the Congressionally-Favored Option of Primary Language Instruction 39

C. PROPOSITION 227 VIOLATES TITLE VI BECAUSE IT IMPOSES AN UNJUSTIFIABLE DISPARATE IMPACT UPON NATIONAL ORIGIN MINORITIES BY DENYING THEM ACADEMIC INSTRUCTION ON A PAR WITH THEIR ENGLISH-FLUENT PEERS 41

1. Proposition 227’s Instructional System Has A Disparate Impact On National Origin Minorities 42

a. Proposition 227’s “Immersion” Program Adversely Impacts Language Minorities By Denying Them The English Language Development Necessary for Them To Compete With Their English-Fluent Peers 43

b. Proposition 227’s Transitional Program Has A Disparate Impact on Minorities By Denying Them Academic Instruction Comparable to That Received By Their English-Fluent Peers 43

c. Proposition 227’s Post-Transitional Phase Will Disparately Impact Minorities By Tracking Them Into Inferior Instruction 44

2. Proposition 227’s Denial of Academic Instruction to and Resulting Remedial Tracking of Minorities Is Not Justified By Educational Necessity 45

3. Less Discriminatory Alternatives Exist To Proposition 227’s Denial of Academic Instruction to National Origin Minorities 45

4. Conclusion 46

D. PROPOSITION 227 VIOLATES THE EQUAL PROTECTION CLAUSE BY IMPEDING MINORITIES’ FUNDAMENTAL RIGHT TO PARTICIPATE IN THE POLITICAL PROCESS 46

1. Proposition 227 Triggers Strict Scrutiny By Reallocating Political Authority in a Discriminatory Manner and Burdening Minorities’ Future Pursuit of Equal Educational Opportunity 47

a. Proposition 227 Removes Political Authority Over Programs Designed to Provide Equal Educational Opportunity to National Origin Minorities to the Most Remote Level of Decision Making 49

b. Proposition 227 Targets Programs of Particular Interest to National Origin Minorities 50

2. Proposition 227 Cannot Survive Strict Scrutiny Because It Is Not Narrowly Tailored to Achieve a Compelling State Interest 53

VI. CONCLUSION 53



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TABLE OF AUTHORITIES

Federal Cases Page(s)



Castaneda v. Pickard


648 F.2d 989 (5th Cir. 1981) passim



Cintron v. Brentwood Union Free Sch. Dist.


455 F.Supp. 57 (E.D.N.Y. 1978) 38



Coalition for Economic Equity v. Wilson


110 F.3d 1431 (9th Cir.), cert. denied, __ U.S. __, 118 S.Ct. 397 (1997) 47, 51



Coalition for Economic Equity v. Wilson


946 F. Supp. 1480 (N.D. Cal. 1996) 47



Elston v. Talladega County Bd. of Educ.


997 F.2d 1394 (11th Cir. 1993) 41, 45, 78



Farmers Educ. and Coop. Union of America v. WDAY


360 U.S. 525 38



Felder v. Casey


487 U.S. 131 (1988) 38



Frank’s GMC Truck Ctr., Inc. v. General Motors Corp.


847 F.2d 100 (3d Cir. 1988) 10



Free v. Bland


369 U.S. 663 (1962) 37



Gade v. National Solid Wastes Management Ass’n


505 U.S. 88 (1992) 37



Georgia State Conference of Branches of NAACP v. Georgia


775 F.2d 1403 (11th Cir. 1985) 41, 45



Gilder v. PGA Tour, Inc.


936 F.2d 417 (9th Cir. 1991) 9



Gomez v. Illinois State Bd. of Educ.


811 F.2d 1030 (7th Cir. 1987) passim



Guardians Ass’n v. Civil Serv. Comm’n of New York


463 U.S. 582 (1983) 41, 43



Hazelwood Sch. Dist. v. United States


433 U.S. 299 (1977) 41



Heavy Runner v. Bremner


522 F.Supp. 162 (D. Mont. 1981) 35



Hill v. Florida


325 U.S. 538 (1945) 38



Hines v. Davidowitz


312 U.S. 52 (1941) 37



Hunter v. Erickson


393 U.S. 385 (1969) passim



Idaho Migrant Council v. Board of Educ.


647 F. 2d 69 (9th Cir. 1981) 24, 26



International Paper Co. v. Ouellette


479 U.S. 481 (1987) 37



Johnson v. California State Bd. of Accountancy


72 F.3d 1427 (9th Cir. 1995) 10



Jones v. Rath Packing Co.


430 U.S. 519 (1977) 37



Keyes v. School Dist. No. 1


576 F.Supp. 1503 (D.Colo. 1983) 34, 38



Larry P. v. Riles


793 F.2d 969 (9th Cir. 1984) passim



Lau v. Nichols


414 U.S. 563 (1974) passim



People ex rel. Van De Kamp v. Tahoe Reg’l Planning Agency


766 F.2d 1319, modified, 775 F.2d 998 (9th Cir. 1985) 10



People Who Care v. Rockford Bd. of Educ.


851 F.Supp. 905 (N.D.Ill. 1994),


aff’d in part, rev’d in part on other grounds, 111 F.3d 528 (7th Cir. 1997) 45




Perez v. Campbell


402 U.S. 637 (1971) 37



Pharmaceutical Soc’y of N.Y. v. N.Y State Dept. of Soc. Serv.


50 F.3d 1168 (2d Cir. 1995) 10



Plyler v. Doe


457 U.S. 202 (1982) 10



Regents of the Univ. of California v. ABC, Inc.


747 F.2d 511, 521 (9th Cir. 1983) 10



Rios v. Read


480 F.Supp. 14 (E.D.N.Y. 1978) 38



San Antonio Independent School Dist. v. Rodriguez


411 U.S. 1 (1973) 38



Serna v. Portales Mun. Sch.


499 F.2d 1147 (10th Cir. 1974) 38



State of Alaska v. Native Village of Venetie


856 F.2d 1384 (9th Cir. 1988) 9



Teresa P. v. Berkeley Unified Sch. Dist.


724 F. Supp. 698 (N.D. Cal. 1989) 25, 29



U.S. v. Odessa Union Warehouse Co-Op


833 F.2d 172 (9th Cir. 1987) 9



United States v. Texas


680 F.2d 356 39



Washington v. Seattle Sch. Dist. No. 1


458 U.S. 457 (1982) passim




State Cases



Dawson v. East Side Union High Sch. Dist.


28 Cal. App. 4th 998 (1994) 49



Piper v. Big Pine Sch. Dist.


193 Cal. 664 (1924) 26





United States Constitution


Article VI, Cl. 2 37





Federal Statutes and Regulations



Bilingual Education Act


(Title VII of the Elementary and Secondary Education Amendments of 1967)


20 U.S.C. § 7401 et seq. 39



Civil Rights Act of 1964, Title VI


42 U.S.C. § 2000(c) 41



Civil Rights Act of 1964, Title VI regulations


34 C.F.R. § 100.3(b)(2) (U.S. Dept. of Education regulations) 41



Education Amendments of 1974, Pub. L. No. 93-380, § 702(a), 88 Stat. 484 40



Equal Educational Opportunities Act (“EEOA”)


20 U.S.C. § 1701 et seq. 3, 24


20 U.S.C. § 1703(f) passim


20 U.S.C. § 7402(a)(9)


20 U.S.C. § 7454 40





California Constitution


Cal. Const. Art. II, § 8 49


Cal. Const. art. II, § 10 49


Cal. Const. art. IX, § 14 50




State Statutes and Regulations Page(s)



California Education Code


§ 300 7, 8


§ 305 7


§ 306 7


§ 310 8


§ 311 8, 17


§ 320 9


§ 335 9, 49


§ 35160 49


§ 44253 6


§ 44344 6


§ 51053 49


§ 51054 49


§ 52160 et seq. 3, 4, 5, 6


§ 52161 3, 49


§ 52163 3


§ 52164 4, 6


§ 60000 49


§ 62000 5


§ 62002 4, 6



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I. INTRODUCTION

Nearly 25 years ago, the U.S. Supreme Court held that “there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education.” Lau v. Nichols, 414 U.S. 563, 566 (1974). In the wake of that decision, Congress enacted legislation intended to guarantee to all limited English-proficient students that State and local educational agencies take “appropriate action” to ensure both their English language acquisition as well as their equal access to the substantive academic curriculum.

Until last week, the State of California sought to meet this obligation through a cooperative system under which State educational agencies established and enforced meaningful minimum educational standards for the instruction of LEP children, while entrusting local school districts and schools with the flexibility, within those standards, to assess the particular needs of each LEP student and to fashion an instructional program meeting those needs.

Last week, a majority of California voters enacted Proposition 227, the so-called “English Language Education for Immigrant Children” initiative.(1) Although its proponents made extravagant claims as to the alleged failure of bilingual education and other methods of teaching English to children who speak other primary languages, Proposition 227 substituted in place of those educationally sound strategies a single untested, unproven and, indeed, wholly experimental theory: one which limits English language instruction to one year, and which stipulates that such instruction must be virtually entirely in English.

While its precepts may possess political appeal, Proposition 227 will wreak unimaginable harm upon the approximately 1.4 million limited- or non-English proficient students (“LEP students”) enrolled in California’s public schools. They will not only not learn English under this theory; they will, in addition, suffer long-term, irremediable educational injury because of its extreme, shortsighted prescriptions. Children making great strides under existing programs — programs developed and found appropriate for them by State and local educational agencies — will be pulled out of those programs and forced to “sink or swim” under the untried Proposition 227 régime. All others will have just one year — a period decried by all recognized educational experts as wholly inadequate — to learn enough English to survive in English-instruction classrooms, an impossible task. Proposition 227 not only mandates a massive reduction of educational services to LEP students statewide; it also strips local schools and school districts of their flexibility as to how to best address the educational needs of those already at-risk students.

Quite simply, these LEP students — virtually all of whom are, by definition, national origin minority children — will be denied the public education to which they are entitled. Their life prospects will be shattered as a result.

What is more, Proposition 227 locks in its single, “one-size-fits-all” theory for the indefinite future by taking away from educational agencies, educators, and the parents and guardians of LEP students their ability to modify it in any meaningful way. Now, instead, of being able to lobby a local school board or even the Legislature for such changes, the parents and guardians of LEP children may only seek beneficial policies and programs that differ from Proposition 227’s imposed model by winning a statewide vote — a nearly insuperable obstacle for the minority communities who, historically, have been those most concerned about making educational options available to limited-English-proficient children.

This measure demonstrably violates both the Constitution of the United States as well as federal statutes enacted to protect the interests of LEP students. It will also visit irreparable, lifelong injury upon this uniquely vulnerable class of children — let alone the incalculable damage it will cause to the social and economic fabric of this State. Plaintiffs, therefore, now ask this Court to issue an order preliminarily enjoining its implementation pending trial.




II. STATEMENT OF THE FACTS

California’s Limited-English Proficient Children

There are approximately 1.4 million school children in California identified as being either limited-English-proficient (“LEP”) or non-English-proficient (“NEP”) (collectively, “LEP students”).(2) They make up about 25% of the State’s total school population, and roughly 50% of all LEP students in the nation. Although they share a common linguistic status, they are also characterized by their astonishing diversity and by the variety of circumstances they inhabit. LEP children are found in virtually every district in the State, from Humboldt County in the north to the border districts in the south. There are schools in which nearly 100% of the students are Spanish-speaking LEP students, and schools with isolated Hmong or Vietnamese students. Moreover, LEP students differ widely as to their levels of proficiency in their primary language as well as in English; some come to school with no knowledge of English. Some are literate in their primary language, while others have only spoken proficiency. While the majority of LEP students are at the primary level, they are nonetheless spread throughout the grades, with approximately 30% at grades 7-12.(3) While about 80% of California’s LEP children speak Spanish as their primary language, there are nonetheless more than eighty different languages represented among them.

The Services Provided LEP Students Before Proposition 227

The State Board of Education (“State Board”), the State Superintendent of Public Instruction, the California Department of Education (“CDE”), and the local school districts in the state that enroll LEP students have all been independently obligated, under both state and federal law, to ensure that LEP students have access to appropriate programs that ensure they are not denied equal educational opportunities due to their lack of English proficiency. Accordingly, during the 1996-97 school year, approximately 30 percent of California’s LEP students were enrolled in “bilingual education” programs — i.e., programs that provide students with academic instruction in their primary language while they learn English. The remainder were served in a variety of other programs.

Under longstanding state law, these students were placed in bilingual programs on the basis of an assessment conducted by local districts, using locally devised criteria.(4) The individual assessment determined whether it was necessary to provide each student with substantive academic instruction through the use of her primary language in order to provide her with equal opportunity for academic achievement in the regular course of study, and to prevent her from incurring any substantive academic deficits. (5) Typically, students enrolled in bilingual education programs represented the least English-proficient students enrolled in a district. While they had direct access to core academic subjects such as social studies, math, science, and language arts through instruction in their primary language, they also received daily instruction in English language development (“ELD,” commonly referred to as English as a Second Language (“ESL”) instruction) in order to teach them English as effectively as possible.(6)

In addition to bilingual education programs, school districts throughout the state utilized a number of instructional strategies to address the needs of the remaining 70 percent of California’s LEP students, inasmuch as each was entitled to a program of instruction in ELD enabling her to develop English proficiency as effectively and efficiently as possible. While the latter students were not in “bilingual programs” per se or self-contained bilingual classrooms, virtually all of these alternative programs sought to provide them with meaningful amounts of primary language assistance, often through the use of paraprofessionals and classroom aides.(7) Until the passage of Proposition 227, however, the touchstone for placement in either a bilingual program or any other alternative ELD program was the assessed academic and English language acquisition needs of the individual student. The variety of instructional options available to LEP students, coupled with the ability of parents to influence LEP programs through advisory committees and other channels of public input to schools and school boards, ensured that LEP programming was highly flexible and could be adjusted to the needs of the particular student, in keeping with statutory mandates and State-level guidelines.

Although the specific statutory mandate for these programs, the Chacon-Moscone Bilingual-Bicultural Act of 1976, § 52160 et seq.,(8) was allowed to “sunset” in 1987, § 62000.2, the California Legislature nonetheless provided for continued funding for those programs in order to preserve their “general purposes.” § 62002.(9) Those purposes have been construed by the California Department of Education and State Board of Education as requiring inter alia that the dual needs (learning English and curricular access) of LEP students be addressed. Those agencies required primary language instruction for LEP students where it was deemed necessary to ensure equal opportunity for academic achievement; and, of course, school districts had to provide intensive English language instruction.(10)

Guidelines and mechanisms initially established pursuant to the Chacon-Moscone Act, designed to ensure that each LEP student in California was properly identified, assessed, and served, were in effect and enforced by the CDE for many years. When properly implemented, they ensured uniformity and consistency statewide, and guaranteed that no LEP student in need of appropriate educational services, in the form of bilingual education or otherwise, would be denied them. Of almost equal importance to these procedures was the use of objective and uniform reclassification, or “exit,” criteria, which ensured that no LEP student would be redesignated as English-fluent until she was in fact capable of equal participation in the regular academic curriculum.(11) Finally, another critical guarantee that existed prior to the enactment of Proposition 227 was the State’s requirement that teachers who served LEP children in a special program possessed the requisite skills and knowledge appropriately to carry out that program.(12)



The Changes Mandated By Proposition 227

Proposition 227 purports to fundamentally and unilaterally redefine the federal and state legal rights of LEP students. In contrast to the previous system, which allowed for a diversity of instructional options for LEP students and accorded ample flexibility to local school districts in meeting their needs, Proposition 227 decrees that a single educational theory will henceforth serve as the norm for all LEP students, entirely irrespective of their individual characteristics or specific educational needs. It declares:





[A]ll children in California public schools shall be taught English by being taught in English. In particular, this shall require that all children 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. . . . Once English learners have acquired a good working knowledge of English, they shall be transferred to English language mainstream classrooms.





§ 305. In the “immersion” classroom, “nearly all classroom instruction is in English” § 306(c), even though the students in that classroom are by definition “not currently able to perform ordinary classroom work in English” § 306(a). Although the language of instruction in “mainstream” academic classrooms will be “overwhelmingly” in English, § 306(b), Proposition 227 requires only that LEP students have ” a good working knowledge of English” — not the higher level of academic English and English literacy needed for classroom work — before they are transferred there. § 305. Moreover, contrary to established educational practice requiring special training for those teaching LEP students, the initiative requires only that teachers “possess a good knowledge of the English language.” § 306(b).

In sum, therefore, Proposition 227 obliterates decades of educational experience and the options developed during that time which recognized and addressed the specific, individual needs of each LEP student. It not only prohibits those programs commonly referred to as “bilingual education,” but goes even further to outlaw any English language development program that violates the “nearly all in English” requirement, or that lasts for more than one year. No program, including those primarily focused on English acquisition, has ever imposed a presumptive one-year limit on services. No program, even those focused on ELD, has ever attempted to subject the role of the student’s primary language to the “nearly all in English” standard. Thus, virtually every program now in existence in California is barred by Proposition 227.

In further disregard for the uniqueness of each LEP student and her entitlement to tailored educational strategies, the initiative also provides that during the “sheltered English immersion” period, “[l]ocal schools shall be permitted to place in the same classroom English learners of different ages but whose degree of English proficiency is similar . . . [and] shall be encouraged to mix together in the same classroom English learners from different native-language groups but with the same degree of English fluency.” § 305.

Proposition 227 thus treats each and every LEP student across California, irrespective of her specific strengths and weaknesses, or of local circumstances and resources, as essentially fungible, and subjects them to its “cookie-cutter,” assembly-line educational vision. Moreover, it makes the extraordinary and unsupported assumption that one year spent in its novel “immersion” program, and one year alone, will allow the normal LEP student to acquire a level of English competency that will enable her to succeed in English-language classrooms — wholly without regard for her age, grade, primary language skill level, and her numerous other educational characteristics. It also ignores the local circumstances and needs of each school district.

Proposition 227 nominally provides that parents and guardians may, under highly limited circumstances, apply for waivers to exempt their child from the “immersion” program and to receive LEP instruction according to “generally recognized educational methodologies permitted by law.” §§ 310-11. However, as discussed in greater detail below (See IV.A.3), these “parental exceptions” are not available to the vast majority of LEP students, and have been so structured as to make their promise an illusion. Moreover, it vests broad and unguided discretion in educational staff and administrators in deciding whether to grant such waivers. §§ 311(b), 311(c). This requirement is wholly unprecedented: No other class of children is required to obtain a discretionary “waiver” under the California Education Code before they may receive an individualized assessment and have their particular needs addressed. Further, as discussed in greater detail below, see section IV.A.3, these “parental exceptions” have been so structured as to make their promise an illusion.

To discourage deviations from the norms it establishes, Proposition 227 creates a private right of action against educational staff in their personal capacity for their alleged failure to comply with its terms:





If a California school child has been denied the option of an English language instructional curriculum in public school, the child’s parent or legal guardian shall have legal standing to sue for enforcement of the provisions of this statute, and if successful shall be awarded normal and customary attorney’s fees and actual damages . . . Any school board member or other elected official or public school teacher or administrator who willfully and repeatedly refuses to implement the terms of this statute . . . may be held personally liable for fees and actual damages by the child’s parents or legal guardian.





§ 320. Finally, bypassing normal democratic processes, Proposition 227 inoculates itself against amendment by requiring that those seeking to modify it in any material way must pass a statewide initiative in order to do so:





The provisions of this act 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.





§ 335.

III. THE STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF

A preliminary injunction properly issues upon a showing that either: 1) plaintiffs can demonstrate probable success on the merits and the possibility of irreparable harm; or 2) that “serious” questions are raised by the complaint and the balance of hardships tips sharply in their favor. United States v. Odessa Union Warehouse Co-Op, 833 F.2d 172, 174 (9th Cir. 1987) (“[t]hese two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.”).

To obtain preliminary relief, plaintiffs are required to demonstrate only a reasonable probability of success on the merits. Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991). If the balance of harm tips decidedly in favor of plaintiffs, then they “need not show as robust a likelihood of success on the merits[.]” State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1389 (9th Cir. 1988). Under such circumstances, a “fair chance of success on the merits” is sufficient to warrant preliminary injunctive relief. Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995).

Finally, in cases involving matters of significant public interest, such as the one now before the Court, the public interest is a factor that must be weighed heavily in determining the need for injunctive relief. Regents of the University of California v. ABC, Inc., 747 F.2d 511, 521 (9th Cir. 1984). As the Supreme Court has found, denying access to education





imposes a lifetime hardship on a discrete class of children not accountable for their disabling status . . . By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions.





Plyler v. Doe, 457 U.S. 202, 223 (1982). (13)

For the reasons set out in Sections IV and V, below, preliminary injunctive relief to enjoin Defendants’ implementation of Proposition 227 is appropriate and should be granted.



IV. IRREPARABLE HARM WILL RESULT ABSENT PRELIMINARY RELIEF

The imposition of Proposition 227’s unfounded, experimental methodology will cause long-term, indeed irremediable injury to the educational futures of California’s LEP students. Moreover, in the shorter term, the nearly impossible struggle by school districts statewide to comply with Proposition 227 before the upcoming school year will throw them into financial and administrative crisis, impacting and undermining further still the services they will be able to provide.

These harms will be profound and irreparable in their effect. The balance of the hardships counsels strongly in favor of a preliminary injunction.

A. The Inherent Irrationality of Proposition 227 and Its Consequences.

1. The “One-Year-and-Out” Provision

The requirement that all LEP students be transferred into a mainstream classroom after just one year of English “immersion” not only disregards the individual needs-based assessment that has been the touchstone of California’s approach toward LEP students, it also defies all educational research and experience. Simply put, though there may be isolated exceptions, 180 school days of English language development is grossly inadequate to give LEP students the academic English and English literacy skills needed to prepare them for mainstream academic classes.(14)

The simplistic premise of Proposition 227 that “[y]oung immigrant children can easily acquire full fluency in a new language such as English, if they are heavily exposed to that language in the classroom at an early age[,]” § 300, ignores the fact that LEP children come into our schools at all ages.(15) It is also “demonstrably false.”(16) Professor Kenji Hakuta of Stanford, who recently chaired a committee of the National Research Council which reviewed the breadth of research bearing upon these children, concludes that “No evidence exists that a [structured immersion] program can be successful in teaching English in one year.”(17) It is therefore hardly surprising that there are no school district programs within the state _ whether bilingual, ESL or immersion — that categorically set a presumptive one-year limit on English language development for LEP students. Proposition 227’s one-year-and-out mandate is contrary to the actual experience of California schools. (18)

Proposition 227 moreover ignores the critical point that school demands much more than casual, “playground” oral English proficiency. Even the English required for non-academic social interaction generally requires more than a year to acquire.(19) But more importantly, the level of English required in the classroom is more demanding, even at the lower grade levels. Professor Wong Fillmore of the University of California at Berkeley explains the process that children must undergo to achieve academic proficiency in English:






Few children can gain more than a shaky command even over this type of language in less than two years. For non-English speaking children to participate on a more or less equal academic and social footing with English speaking peers in the classroom, they must be competent in addition to this basic level of language, with language which is required for academic learning — the abstract and conceptually complex aspects of linguistic knowledge involved in literacy development, logical reasoning and problem solving. This level of linguistic knowledge and functioning takes substantially longer to acquire even under the best of circumstances. (See Cummins, op. cit., Colliers and Thomas, Ramirez, et al.) This is true whatever the grade level, including those at the primary level. Children must have the prerequisite linguistic foundation to understand the concepts they are expected to acquire through the school’s curriculum. . . . For these reasons, the research has shown that proficiency in academic English can not be attained by most children in less than 4 to 5 years under the best of conditions. It should also be noted that academic English requires not only proficiency in speaking and understanding, but also in reading and writing at the levels required for each grade level.(20) (Emphasis supplied.)





Moreover, to compete in regular academic curriculum, LEP students need not only oral proficiency, but English literacy, which cannot ordinarily be acquired until oral proficiency is developed.(21) Yet Proposition 227 completely ignores the need for English literacy. The terms “fluency” and “proficiency,” which commonly denote oral fluency rather than literacy, permeate the Act, but without concomitant mention of literacy. The terms of Proposition 227 implicitly acknowledge its low expectations by requiring merely “a good working knowledge of English”, § 305, at the end of the one-year immersion program — far short of the academic English and literacy skills required for full participation in academic curricular classes.

The consequences of premature removal from even a proven English acquisition program are both predictable and calamitous. One superintendent observes: “For most LEP students 180 days, only a school year, will ill-prepare them for a mainstream English program. These students will not only fall behind their English-only peers in reading and writing but also in their other classes, due to their low level of English comprehension. If the LEP students fall behind their first year in mainstream classes, they will only fall further behind the next year.”(22) Under these circumstances, “the limited English proficient child can be anticipated to flounder, become disengaged and ultimately become at extra risk of dropping out, being expelled, or worse. . . . There is little hope for children being placed in such a situation.”(23)


2. The Denial of Equal Access to the Curriculum

Proposition 227’s further requirement that instruction in the immersion program be “nearly all” in English will exacerbate the Proposition’s harm upon LEP students. Not only will they be ill-prepared in terms of English proficiency and literacy at the end of the one year immersion program, they will unavoidably be behind academically as well. The Proposition’s virtual exclusion of meaningful primary language instruction(24) effectively insures that LEP students will have limited, if any, academic instruction during the immersion program. (25) The obvious consequences of an English-only instructional program are described by Dr. Wong Fillmore:





How are teachers to teach the school’s curriculum to children who do not understand the medium of instruction? The usual solution is to reduce the content ordinarily covered and to simplify the language used to impart the curriculum to the barest essentials. Hence, neither the content nor the language used in such classes are at appropriate levels for the students. The resultant “dumbing down” of the language and content means that students do not get access either to the language or to the curriculum they should be learning in school, whatever their grade level.(26)





The consequences of entering mainstream academic classes with both an English language and academic deficit are long-term in nature. Education is a continuing process, building upon the foundation of that previously learned. As Dr. Wong Fillmore explains, “If they do not understand the language well enough to learn in the second grade, what is lost is more than the curricular content of the second grade. They will not have the background knowledge presupposed by the content of the third grade, and so on.”(27) And as discussed in greater detail below, LEP students inadequately prepared for regular curricular classes will face the inevitable consequence of either being retained at grade level or tracked into remedial academic classes, consequences which experience has proven to have a devastating impact. (See, e.g., Section V.C. below.)



3. The Replacement of Individual Assessments of Need with a Prescriptive, “One-Size-Fits-All” Program

As previously discussed, Proposition 227 imposes a single instructional program on 1.4 million LEP students in California, in total disregard of variations in their current English proficiencies, their age, maturity, primary language skills, primary language literacy, home-country schooling, learning styles or learning rates. It simplistically presumes that all LEP children should be able to transition to a mainstream classroom after a year of “sheltered English immersion.” Even if it is assumed that some LEP students might succeed under Proposition 227’s immersion program, however, it is clear that it is neither adequate nor appropriate for most, and certainly not for all.

If there is a central tenet in a successful education program, it is that “each child and each situation require the teacher to be able to adjust a program to fit the needs of the child.”(28) “[A]ll children have different needs and . . . a given child has different needs at different phases of his educational and linguistic development. Thus it is central [for districts] to evaluate children and remain flexible to adjusting their program to fit differing circumstances.”(29) These individual variations must be taken into account in sculpting a successful program that addresses the needs of each student. Thus, for instance, while a sheltered English program may be appropriate for an LEP student with some basic English proficiency who is approaching transition to mainstream classes, it is not appropriate to the newcomer who starts with no knowledge of English at all.(30) In forbidding this flexibility and individual tailoring, Proposition 227 dooms an intolerable number of LEP students to under-achievement and irremediable education deficits.(31)

Equally disturbing is that Proposition 227 will abruptly change the educational programs LEP students are currently participating in. Superintendent Michael expressed particular concern for his large migrant student population also identified as LEP. Continuity is essential in serving the special needs of these children. According to Superintendent Michael, this sudden change in program will “only exacerbate the disruption they already encounter in their education as a result of their migrant status and will undermine our efforts to address their unique needs.”(32)

Superintendent Kirschenbaum voices his concern that changing the program midstream as a result of Proposition 227 will not only have “educational implications, but psychological, social and emotional” implications for his students.(33) Dr. Rosa Apodaca, director of LEP student programs for the San Francisco Unified School District, cautions that such a change, midstream, can cause a great deal of confusion for students which in turn will impede their learning process. According to her, LEP students enrolled in bilingual programs will be especially impacted:





Students will be especially alarmed if they are removed from a bilingual environment in which his or her primary language is freely used and encouraged by both teacher and students ton one in which English is the language of instruction. Students will simply not understand the change. They will feel frustrated and confused and be made to feel as if they had done something wrong.(34)





Proposition 227 will cause a total disruption in the learning process for the State’s LEP students, students who can ill afford such disruption.

The fact that Proposition 227 contains provisions for parental waivers does not cure these fundamental defects.(35) The purported parental exceptions are a “cynical illusion.”(36) The first exception is for those who already know English, § 311(a), hardly an exception available to the parent of a LEP child. The second exception is available only to those above ten years of age, and is available only if school officials believe that an alternative course of instruction would assist with the “rapid acquisition of basic English.” § 311(b). Thus, failure to grasp the curriculum in an all-English classroom is not a basis for an exception. The final “exception” for children with “special needs” appears to apply only to children with disabilities who are entitled to special protection under disabilities laws.(37) § 311(c). Even if that exception is not so restricted, however, it is illusory in practice inasmuch as it can only be invoked after a child has been in “immersion” for “not less than thirty days during that school year[.]” Id. At that point, movement of the child is highly undesirable. As Santiago Wood, Superintendent of the Alum Rock Union Elementary School District in San Jose, observes, “[A] change in placement after 30 school days is not one that is educationally or administratively feasible. . . . Clearly, most students will be forced to endure [an inappropriate] placement due to these factors.”(38) The exception thus creates a “Hobson’s choice of two educationally inappropriate decisions: [we] could either pull a child out of a program and disrupt the child’s education after more than one-sixth of the school year will have elapsed, or [we] can leave the child in an inappropriate [i.e., Proposition 227] program.”(39) Finally, even if the student satisfies all requirements, including the demonstration of “special needs,” the district is never required to grant a waiver. The decision is, instead, left entirely to the district’s discretion. § 311.

Moreover, nearly all parents of LEP students are immigrants, many of whom have limited education and financial resources and are likely to feel intimidated by governmental authorities. These parents are highly unlikely to invoke this administrative process.(40) Superintendent James Michael of the Alisal Union School District, a district with a large migrant student population, describes the obvious barriers facing immigrant parents to the waiver process:





The waiver provisions of Proposition 227 require a complicated waiver process for immigrant parents not familiar with the U.S. school system and not proficient in English skills to provide a written waiver request. Many of our parents work several jobs, work long, backbreaking hours in the fields, do not have easy access to transportation, do not have easy access to child care, have little education, are not literate, and face the daily stress and toil stemming from their low-income status. It is highly unlikely that these parents will be able to avail themselves of the complicated waiver process detailed in Proposition 227.(41)





More fundamentally, the necessity of obtaining a parental waiver does not permit the schools and local districts to take affirmative steps to ensure, as they must, that each child receives an appropriate instructional program. Instead, Proposition 227 impermissibly shifts the burden of providing equal educational opportunity to LEP students away from schools and onto their parents.(42)



4. Exclusion of Parental Participation

Proposition 227’s English-only instructional mandate will have the further impact of limiting the participation of the parents of LEP students in the educational program of their children. This, in turn, will have a direct adverse impact on the academic achievement of these children.

Bilingual education programs have played a critical role in increasing immigrant parent involvement in the schools, and in facilitating the involvement of the parents of LEP students directly in the classroom. Because the parents of LEP students often are themselves not proficient in English, they find it difficult to participate in the school community. Research shows that immigrant parent involvement is only likely when a child is in a bilingual program.(43)

According to Bruce McDaniel, the Superintendent of Lennox Elementary School District, “language is the key” to facilitating meaningful immigrant parent involvement in his district. The existence of bilingual education programs allows the parents of his LEP students to become directly involved in a positive way in the classroom because language is not a barrier to their participation:





Regardless of the language, all parents can and should play a critical role [in] literacy development of their children. Parents read to their children, they model a love for books, they teach their children concepts about print, tracking print, letter and work definition, and initial writing. The learning of these skills isn’t language specific, and all of these skills can easily transfer from one language to another. Thus, parents who are literate in languages other than English can still play a very valuable role in educating their children, while, they are learning English.(44)





Parents of the Plaintiff representatives confirm that they have been able to help their children with homework, to read to their children, to volunteer in the classroom because their children have been enrolled in bilingual education programs and, therefore language was not a barrier to their participation.(45) One parent aptly describes this involvement and what Proposition 227 would eliminate:





I help my son with his reading by taking him to the library and getting books so that we both can read together in Spanish. My wife has volunteered her time in my son’s classroom and this has helped us both understand how my son is doing and how we can best help him at home with his homework. We are able to help him because his lessons are in Spanish. If he was placed in an English only classroom we would not be able to help him because we don’t speak English.(46)





Bilingual teachers also know the value of parental involvement in their classrooms, the role that bilingual education has played in facilitating this involvement and how Proposition 227 will undermine what one teacher describes as her students’ “strongest bases of support: their parents.” According to Maria Estela Mora, the elimination of bilingual education would mean not simply that her students would no longer be able to ask their parents who speak little English for help with their homework assignments or school projects. Indeed, the damage would be far more profound:





Proposition 227 will break down the bridge that we have strived for so many years to build between home and school. By giving the language they speak a negative connotation, this new law will make these children feel inferior. It will contribute to changing LEP children’s positive perceptions of themselves and will very likely impair their relationships with their families.(47)





Other teachers(48) and school administrators(49) concur that Proposition 227 will drive a great wedge between the schools, the parents, and their children.

5. Administrative Chaos

Unless Proposition 227 is enjoined, school districts will be faced with the insurmountable task of immediately dismantling existing LEP programs — some of which have been developed and implemented for decades — and implementing an entirely new, untested program, pursuant to the unworkable constraints of a 60-day implementation mandate. Such a mandate will result in total chaos and upheaval, is impossible to fulfill, and, most importantly, is not educationally sound. More than simple administrative inconvenience, school administrators will be forced to abandon all acceptable school administration practices and to attempt to implement an untried program without proper planning, curriculum, basic instructional materials, or trained teachers. Furthermore, the costs of dismantling present programs and implementing Proposition 227 will be astronomical, and simply not within the budgetary means of school districts already strapped for funds. All of this will have a huge negative impact on the very children whose interests Proposition 227 claims to advance.

Superintendent Bernard J. Korenstein echoes the views of other school administrators about the unreasonable constraints imposed by Proposition 227’s 60-day mandate:





Proposition 227 subjects Oxnard School District to an enforced structure that would cause educational upheaval in our district and massive harm to our students. The requirement to implement after 60 days . . ignores organizational theory and erroneously equates a radical and systemic change in the delivery of instruction to the ease of replacing one textbook with another. The proposition further does not address distinctive community needs. With a growing school population and a shortage of classrooms, Oxnard must operate all schools on a year-round basis. . . . It is unfeasible to end bilingual education on a Friday and implement an ESL Immersion Program on the following Monday in over 240 classrooms. With half of the district, over 7,000 students, currently enrolled in a transitional bilingual program, implementation within the mandated 60 days is impossible. A sound, effective instructional program demands time for planning, development of curriculum, purchase of materials, and training of staff. Proposition 227 denies this necessary time.(50)





Dr. Waldemar Rojas, Superintendent of the San Francisco Unified School District, confirms that the schools’ inability adequately to prepare for Proposition 227’s implementation will deny their students appropriate instruction:





It is impossible to put a quality program for 20,000 [San Francisco LEP] students in place by the start of school year 1998-99. The students would suffer greatly and it is not possible to do even if money were no object. Curriculum design, developing standards, selecting books to accompany the curriculum constitutes a two year process at best. It is also a sequential process, not a simultaneous one. Once the standards are developed, the curriculum is designed. Upon completion of the curriculum, the specifications for books and materials are developed. Those specifications are put out for bid. Once the bids are made, the teachers review the books and materials and select from all that is available. Their recommendations comes to me then to the Board of Education. Once the Board approves the selection, the order is placed. The orders usually take eight to twelve weeks for delivery. Once materials arrive, the training of the teachers on how to use the books begins. This is typically a year-long process even when it is a focused activity.(51)





The waste of educational resources compelled by Proposition 227 is graphically illustrated in the area of instructional materials. Districts which have implemented bilingual education programs presently have the full complement of basic core curriculum materials in science, math, social studies and language arts, in the primary language of their students (e.g., Spanish) for each of their bilingual classrooms. Under Proposition 227, these materials will have to be “mothballed” and the cost of replacement will be astronomical, costs which simply cannot be met.(52) What is more, even if districts could muster the fiscal and administrative resource necessary to select and order new materials, there are no curriculum materials presently in existence that are designed to support Proposition 227’s novel and radical one-year “immersion” program.(53)

Proposition 227 will create additional problems with respect to teacher training and qualifications. Its 60-day stricture renders school districts unable to ensure that teachers who staff Proposition 227 classrooms will be qualified to do so. Because Proposition 227’s one-year limit on English language development will place ill-prepared LEP students prematurely into mainstream classrooms, teachers of regular curriculum will be faced with addressing the needs of students saddled with both English and academic deficits — a task for which they are simply not trained.(54) All “mainstream” teachers will require retraining in order to work with LEP students, most of whom will be unable to function at grade level in English.(55)

Finally, rather than affording districts the flexibility needed to respond to local conditions and individual needs, Proposition 227’s waiver provisions only compound the organizational nightmare facing school administrators. For example, one administrator concludes that his district will be faced with total chaos in terms of general planning, classroom configurations, instructional materials distribution, and teacher assignment as a result of the waiver process.(56) Another predicts that “[t]he confusion, exasperation, and disruption to parents, students, staff, and programs will be immense.”(57)

In both the short and long term, Proposition 227 will occasion massive and irreparable harm. As the declarations from both large and small districts bear out, an appropriate program cannot be implemented in the mandated timeframe. The ensuing chaos will be reflected in the quality of the education provided to fully 25% of California’s school children. In the long run, Proposition 227 will ensure that LEP children will not achieve English proficiency, not acquire knowledge available to others as a matter of right and, ultimately, not become contributing members of society. All of us will be irremediably harmed by this.



V. PLAINTIFFS’ CLAIMS ARE MERITORIOUS AND RAISE “SERIOUS QUESTIONS” CONCERNING THE LEGALITY OF PROPOSITION 227

For the reasons that follow, Plaintiffs’ claims for relief present serious questions about the legality of Proposition 227, and are likely to succeed on their merits.



A. PROPOSITION 227 WILL INEVITABLY RESULT IN STATE AND LOCAL VIOLATIONS OF THE EQUAL EDUCATIONAL OPPORTUNITIES ACT.

In 1974, Congress amended the Equal Educational Opportunities Act, 20 U.S.C. § 1701 et seq. (“EEOA”), to add § 1703(f) thereto. § 1703(f) imposes an obligation on educational agencies “to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” Local educational agencies share this obligation with state educational agencies. “[F]ederal law imposes requirements on the State Agency to ensure that plaintiffs’ language deficiencies are addressed.” Idaho Migrant Council v. Board of Educ., 647 F. 2d 69, 71 (9th Cir. 1981); see also Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1037 (7th Cir. 1987) (“the obligations of § 1703(f) are imposed on the states and their agencies”). Thus, state and local districts alike must take “appropriate action” under the EEOA.(58)

“Appropriate action” under the EEOA must address two basic, fundamental needs of LEP students: 1) the need to acquire suf


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