Prop. 227 likely to get day in court if voters say 'yes'

Like other contentious ballot measures in California history, Proposition 227 is likely to proceed directly from the ballot box to the courthouse—without passing “Go.”

Opponents probably will challenge the anti-bilingual education initiative on several legal fronts if it passes June 2. They are buoyed by a successful court challenge to Proposition 187, a 1994 initiative that sought to bar undocumented immigrants from public school, welfare and health care.

Prop. 227 would eliminate most bilingual education programs that use native languages, such as Spanish, in California’s public school classrooms and mandate a one-year English-based method.

U.S. Education Secretary Richard Riley has denounced Prop. 227 as a one-size-fits-all approach to education. He noted that the implementation of the measure could
“in all likelihood result in problems under federal civil rights laws.”

Less than a month before the election, the likely legal challengers are tight-lipped about what form a court challenge may take. They don’t want to concede defeat before voters decide on the initiative and they don’t want to show their legal hand to the pro-Prop. 227 camp.

Rachel Moran, a UC-Berkeley law professor who specializes in the rights of English learners, expects opponents to challenge the law under the equal protection clause of the U.S. Constitution. But she doesn’t expect that approach to be successful, because opponents would have to show that voters for Prop. 227 intended to discriminate on the basis of race or ethnicity.

Moran believes opponents will have a better chance to win on the basis of federal statutes, such as the 1964 Civil Rights Act and the 1974 Equal Educational Opportunities Act. A federal court ruled in 1981 that under Equal Educational Opportunity, a program must be based “sound theory.”

“The argument would have to be that there is no research to show that one year of intensive English instruction is so effective that it will almost invariably work, that no children will slip through the cracks,”
Moran said.

Initiative author Ron Unz has said that his one-year method is largely based on anecdotal evidence from co-sponsor Gloria Matta Tuchman’s experience teaching in Santa Ana. But he believes there’s ample evidence to show that his approach is legal.

“In a `sound theory’ argument they would have to say what we’re proposing is utter nonsense,” Unz said. “I really think something like that would be laughed out of court.”

Moran said lawsuits may also focus on California’s constitutional guarantee of a “right to education” for all children. Lawyers could argue that Prop. 227 violates that right by taking away native language programs that help children understand their lessons.

But proponents insist that the “sheltered English immersion”
classes do provide special help to limited English speakers—without steeping them in Spanish or other native languages.

While court challenges to successful ballot initiatives may make voters feel disenfranchised, some experts say it’s a healthy process that gives the political system its balance.

Floyd Feeney, a UC-Davis law professor who wrote a book about the initiative process nationwide, said ballot initiatives tend to “push the envelope”
and often require judicial review.

“If you take a measure through the Legislature, you often wind up having to compromise to have it passed,” he said. “If you go through the initiative process, you’re freer to go for broke. People push the limits of the Constitution and the limits of laws.”

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