AS A MATTER of law, the suit filed by Berkeley Unified, Hayward Unified and Oakland Unified school districts against Proposition 227, which mandates English immersion programs for most limited English students, seems doomed.

At a recent hearing, three state appellate justices considering the lawsuit seemed unimpressed with the districts’ goal, which was to undermine the voter-approved measure’s opt-out language. The law clearly states that if parents want to opt their children out of English immersion, they have to apply for a waiver. The lawsuit would upend that provision by making the state school board grant entire school districts — not parents — 227 waivers. If successful, the suit would force parents in affected schools to apply for waivers to get their children into English immersion — that would mean a return to the very status quo voters rejected when they approved 227 by more than 60 percent.

Justice Paul Haerle noted that 227’s language was clear, that parents, not administrators, should be the first party to decide which type of class their children attend. But it’s funny how Berkeley schools have a way of not caring about the will of the people when it goes against Berkeley sensibilities. All three school districts apparently see their will as superior to the will of the voters.

As Sheri Annis, spokesperson for the 227 camp, put it, “If the judges read this based on the spirit and the letter of Prop. 227, there is virtually no way that these districts can ignore the law.”

The good news is that the districts probably will lose in this court. The bad news is the districts apparently have nothing better to do than fight 227, even though it seems to be helping children.

Before the June 1998 election, foes predicted dire consequences if 227 passed. Instead, STAR-test reading scores for Limited English Proficiency
(LEP) students have risen modestly in every grade. LEP second-grade scores rose from the 19th percentile nationally to the 23rd percentile. Not bad when you consider that many districts implemented 227 in slapdash who-knew-we’d-have-to-order-new-books manner.

The Oceanside Unified School District — the rare district that decided to go gung-ho on English immersion — saw STAR reading scores for LEP students improve for second graders — from the 12th to 23rd percentile.

How did the three suing school districts fare?

Oakland Unified decided not to test some 2,000 limited English students this year, because it is party to a lawsuit that challenges the state requirement that all LEP students be tested. Not testing 2,000 of its lower achieving students inflated Oakland’s LEP scores so much that its LEP students out-scored native English speakers in reading in the second and third grade.
Thus, Oakland’s LEP scores are useless.

Berkeley’s LEP reading scores went down slightly in 1999. Hayward’s LEP reading scores were up and down, depending on the grade. While schools across the state were improving, Berkeley and Hayward weren’t, although —
and this is no small feat — their LEP students scored appreciably above the state average in most grades.

Attorney Celia Ruiz, who represents the districts, said the districts don’t want waivers for all their schools, just schools with bilingual programs.
When you look at the STAR reading scores for the bilingual schools in Berkeley, they’re a smidgen below the district average. At Hayward, scores for bilingual schools were mixed.

Which begs the question: Why this lawsuit?

Berkeley Superintendent Jack McLaughlin noted that parents who want bilingual classes for their children have to wait 30 days. That’s my least favorite part of 227, but it can be worked around. Districts can place those students in classes taught in two languages, although mostly in English.

Instead, the districts chose the lawsuit route. It’s a control thing. They can’t stand voters telling them how to teach kids — even if it makes students learn more.

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