Proposition 227 had proponents and pundits saying it would all but kill bilingual education in California when it passed in June.

But two months into the school year, bilingual programs still have a pulse. That pulse may get stronger as districts attempt a variety of legal tactics to avoid or minimize the effect of the controversial initiative on their educational programs.

The California Education Code allows four kinds of waivers that allow schools to keep their bilingual programs in spite of 227:

  • General waiver: Under code section 33050, school officials can ask the State Board of Education to allow their district to avoid obeying any part of the educational code. Districts must make a strong case for circumventing the law or they will not get a waiver.

  • Charter school waiver: A district can ask the state to allow it to turn one of its schools into a charter school. Charter schools are the educational equivalent of a wild card. Because they are experimental, they are not subject to most of the laws that govern regular public schools.

  • Alternative school waiver: If a majority of parents, teachers, pupils and administrators want a special program in their school, the district can ask the State Superintendent of Public Instruction to designate the program as an “alternative school” within a school.

This waiver, used in the past at schools with programs for at-risk children, is now being used to get permission for two-way immersion programs. Such programs do not comply with 227 because they don’t teach English “nearly all” the time, as the proposition requires.

Local waiver: After 30 days in sheltered English immersion, parents can go to the district and ask that their child be placed back in bilingual education. If a school gets as many as 20 requests, it has to provide a bilingual class. Parents have to reapply for the waiver each year.

Parents’ rights

The local waiver is the only one encouraged by 227’s architects, who put the clause into their initiative to ensure parents the right to choose what’s best for their children.

The charter school waiver is grudgingly accepted, but the other two make 227’s proponents hopping mad.

“Alternative schools are completely illegal,” says Ron Unz, the Palo Alto software millionaire who drafted 227.

But State Superintendent Delaine Eastin does not agree. On Sept. 3, she granted alternative school waivers for Saddleback and San Juan Capistrano school districts. Several other districts, including ABC, Long Beach and Los Angeles, are considering applying for such a waiver for their two-way immersion programs.

Just as contentious is the general waiver. The State Board of Education refused to hear 40 school districts’ requests for general waivers. It could not grant such waivers, it said, because 227 is the will of the people.

“All we’re trying to do is respect the voters,” says Rae Belisle, the board’s legal counsel. The proposition won 61 percent approval.

However, a judge in Alameda County disagreed. Superior Court Judge Henry Needham ruled on Aug. 27 that the state board has the authority to grant such waivers. The case is under appeal.

Voters’ will

The “will of the voters” is the thrust of Unz’ argument that general and alternative school waivers are illegal. He says those parts of the education code that are generated by initiatives take precedence over other parts.

Belisle does not entirely disagree, calling initiatives the “battering rams” of legislation.

“Initiatives are given a very special place because they are passed by the people,” she says.

So, are some parts of the education code more equal than others? Ultimately, Belisle says, the courts will decide.

One reason there is so much confusion over this initiative, she says, is that it was generated by laymen who may not be savvy when it comes to untangling the complicated legislative bureaucracy.

“The people who wrote it were not education lawyers,” Belisle says.

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