Suit to block measure is on shaky footing, legal analysts say

Given California’s recent history of nasty, politically charged court fights over controversial ballot measures, the legal challenge mounted last week against Proposition 227 seemed inevitable from the moment voters endorsed an end to bilingual education in the state.

Like propositions 209 and 187, which respectively dismantled the state’s affirmative-action programs and sought to curtail aid to illegal immigrants,
Proposition 227 landed in court before the ink could dry on election returns.

The early prognosis is poor for the lawsuit filed Wednesday challenging the constitutionality of Proposition 227. That’s based on the analysis by legal experts, as well as the absence of clear legal precedent in support of forcing states to provide bilingual education. Also, the case has been assigned to one of Northern California’s most conservative federal judges,
which won’t help the suit’s chances.

Depending on how the lawsuit plays out, the big issue for Proposition 227’s supporters and foes may be the pace of the case. The initiative could pass legal muster relatively swiftly, like Proposition 209. Or it could languish in the courts for years, as did Proposition 187 and Proposition 140, the state term-limits initiative that just this winter survived an eight-year court battle.

`An impossible case’

“It seems to me to be a very tough case for the challengers,”
said UCLA law professor Eugene Volokh, a former law clerk for 9th Circuit U.S. Court of Appeals Judge Alex Kozinski. “In fact, I would say it’s an impossible case for the challengers.”

In the complaint filed in U.S. District Court in San Francisco, a coalition of civil rights groups argues Proposition 227 illegally deprives the state’s minority students of equal access to a public education. The suit alleges the ballot initiative violates federal civil rights law, the Equal Educational Opportunities Act of 1974 and the equal protection clause of the U.S. Constitution.

The measure — conceived by Silicon Valley businessman Ron Unz and approved with almost 61 percent of the 5.3 million votes cast Tuesday — requires nearly all public school instruction in the state to be in English, except in situations where parents obtain waivers. The 1.4 million California children who speak little or no English would spend a year in an English immersion program and then move on to regular classrooms.

“This case is unique,” said Ed Chen, an American Civil Liberties Union lawyer. “There is certainly nothing out there involving a law such as 227, which is statewide and very prescriptive and mandates a reduction in services (to minority students).”

Whatever the outcome, Proposition 227 is certain to offer the courts a fresh chance to examine how states must meet their obligation to teach non-English-speaking students. The last important federal appellate court ruling on the subject came in 1981, in a case out of Texas that involved a sweeping challenge to a school district’s treatment of Latino students.

Still more obstacles

The U.S. Supreme Court’s last word on the subject came in 1974, in a case called Lau vs. Nichols that evolved from a lawsuit filed against the San Francisco Unified School District. While that ruling established an obligation to provide non-English-speaking students with some form of special instruction, it did not dictate that it must come in the form of bilingual education.

Perhaps the biggest obstacle for the civil rights lawyers seeking to overturn Proposition 227 is a 1978 decision out of the 9th Circuit, which establishes law for nine western states, including California. That case involved a lawsuit filed on behalf of Mexican-American and American Indian students seeking to force a Tempe, Ariz., school district to provide bilingual education.

The 9th Circuit strongly rejected the argument that the 1974 federal education law or the Supreme Court’s Lau opinion require schools to offer bilingual education. The decision also signaled support for leaving the question to voters, legislators and educators, not the courts.

“Whether the children of this nation are taught in one tongue and primarily about one culture or in many tongues and about many cultures cannot be determined by reference to the Constitution,” the 9th Circuit said.
“(The) Constitution neither requires nor prohibits bilingual and bicultural education. Such matters are for the people to decide.”

Civil rights lawyers disagree, as does U.S. Education Secretary Richard Riley, who said the Unz initiative would “in all likelihood result in problems under federal civil rights laws.”

Advocates see hope

Civil rights advocates say the Supreme Court’s holding in the Lau case and the 1981 federal appeals court ruling out of Texas support invalidating Proposition 227. The appeals court ruling, widely cited by bilingual education advocates, set up a three-prong test that schools must meet to show they are complying with the federal equal education law. That law orders schools
“to take appropriate action to overcome language barriers” in classes.

“There are very firm and solid constitutional arguments that support striking 227,” said Cynthia Rice, a lawyer with Sonoma-based California Rural Legal Assistance. She’s pressing a state court challenge in Sacramento to one district’s decision to abandon bilingual education.

But even the Texas attorney who prevailed in the 1981 case called the ruling “vague” in defining the future obligations of school districts.

“They didn’t try to explain what an `appropriate program’ is,”
said lawyer James Herrmann, who noted that Texas wound up enacting bilingual education just as his 11-year court fight ended. “But to the extent free public education is provided by the state as a right, they’ve got an obligation. They can make a good case that teaching non-English kids in English is not providing an education.”

Where better chance lies

Backers of Proposition 227 insist that schoolchildren will get a sound education without bilingual instruction. As a result, legal experts say the lawsuit may have a better chance of success if it challenges that theory down the road with factual proof that Proposition 227 harms the educational opportunities of minority students.

“If they can make that kind of factual showing, then 227 is going to be in trouble,” said Sacramento law professor J. Clark Kelso. “The constitutional claim is much tougher to establish.”

Added University of Southern California law professor Erwin Chemerinsky:
“The key question is going to be whether the alternative to bilingual education is going to be sufficient to provide equal educational opportunities.
It can be eliminated only if there is a showing that there is an alternative there that will be effective.”

Attorney General Dan Lungren, whose office would presumably defend the law, has remained mum on the suit. The Proposition 227 campaign is saying only that it has secured an unidentified major Los Angeles law firm to assist in the defense.

There probably will be plenty of organizations willing to come to the aid of Proposition 227. Among others, the Sacramento-based Pacific Legal Foundation, a conservative organization, is considering joining the case.

“Everybody has a right to file a lawsuit,” said foundation lawyer Sharon Brown. “But I think Prop. 227 will prevail. It’s not inconsistent with federal law or the U.S. Constitution.”

The pace of the case

Meanwhile, the pace of the case has yet to be determined. The law does not take effect for 60 days, and lawyers do not expect a hearing on the request to block Proposition 227 until next month.

The unsuccessful challenge to Proposition 209 was decided in just under a year. By contrast, the suit against Proposition 187, passed in 1994, has just reached the 9th Circuit and is likely to go on for at least another year. A federal judge has gutted most of Proposition 187’s key provisions.

U.S. District Judge Charles Legge, a 1984 Reagan appointee, has the task of determining the outcome of the Proposition 227 lawsuit. Legge provides a sharp contrast to his colleague, Judge Thelton Henderson, a liberal former civil rights lawyer who drew fire from conservatives for invalidating Proposition 209. That ruling was later reversed.

Legge is widely regarded as one of the Bay Area federal bench’s most conservative judges. A former partner at a top San Francisco law firm, the 68-year-old judge also is one of the court’s most experienced members. He’s described as “exceptionally bright” by lawyers who reviewed him in the Almanac of the Federal Judiciary.

In a 1985 interview with a legal newspaper, Legge described himself as a “moderate Republican.”

“You won’t find me bringing down barricades with liberals,”
Legge told the Daily Journal at the time. “But you also would not find me putting up barricades.”



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