Court upholds bilingual waivers

Judge says districts can ask state for Prop. 227 exemption

In a ruling that could give California schools a shot at keeping bilingual classes, an Alameda County Superior Court judge said Thursday that the state must consider granting waivers to school districts that want to opt out of Proposition 227, the state’s new anti-bilingual education law.

Judge Henry Needham Jr. let stand a tentative ruling issued Wednesday that school districts have the right to ask the state Board of Education for waivers from the voter-approved initiative.

More than three dozen school districts — including Mountain View, Ravenswood and Whisman on the Peninsula — have already filed applications for waivers. The state board, however, has insisted it cannot legally allow districts to dodge Proposition 227, which banned most bilingual education in the state starting Aug. 2.

But in a lawsuit filed in July, three East Bay school districts contended — and Needham agreed — that districts are entitled to at least make their case before the board.

The ruling comes just days before children are scheduled to pour back into schools where English is now supposed to be the primary language of instruction. It is one of the rare victories for bilingual education backers, who tried unsuccessfully all summer to have the initiative declared unconstitutional.

Reach of ruling unclear

Whether the ruling has statewide implications is not clear yet.

The wording of Needham’s ruling suggests that it only applies to the three school districts — Berkeley, Hayward and Oakland — that filed suit against the state board, the Department of Education and Superintendent of Public Instruction Delaine Eastin.

But lawyers and state officials immediately staked out opposite ground on that issue, with some arguing that all California districts are now eligible to seek waivers allowing them to continue teaching students in their native language.

“The ruling itself is a ruling on the meaning of the law,” said William M. Quinn Jr., an attorney representing the three districts. “My view is the state board would be obliged to consider all waivers.”

The head counsel for the state Department of Education, Michael Hersher, agreed. And even the attorney for the state board, state Deputy Attorney General Angela Botelho, conceded that “as a practical matter, it opens up to all districts the waiver process.”

Board officials, however, were not ready to give such a far-reaching interpretation to the judge’s ruling.

The board’s executive director, Bill Lucia, said he believes the Superior Court ruling only applies to the three local districts. Lucia said the board would seriously consider filing an appeal to determine whether the ruling must be applied statewide.

“Certainly, an appellate court ruling makes this unambiguous,” Lucia said. “We’re considering whether this is the most appropriate way to get this answered.”

In the meantime, he said, the board intends to process the waivers of the three districts.

At issue is a provision of state law that allows the state board to grant general waivers of any part of the education code.

Heart of the conflict

Since Proposition 227 now is part of the education code, school districts argued that the board has the right to grant waivers to districts that want to bypass the initiative. But lawyers for the board, which never took an official position on Proposition 227, contend that the law prevents them from usurping the will of the electorate by granting waivers of voter-approved ballot initiatives.

In June, the board voted not to process any waiver requests involving Proposition 227, including those from Oakland, Berkeley and Hayward.

To date, 37 schools or districts, including Fremont Unified and Santa Cruz Elementary districts, have asked to waive all or parts of Proposition 227.

“What we’re talking about here is what is the most effective method (of teaching children English),” Botelho argued during Thursday’s court hearing. “That is a decision made by the voters, and it is the position of the board that they cannot consider a request to change that.”

But later in the same hearing, Botelho backed away from that argument. “Yes, the board can consider the waiver requests, but we will see a mountain of litigation. That’s what the concern of the state board is.”

School lawyers confident

Needham refused to order the state to grant the waivers. But attorneys for the districts said that, given a chance to plead their case before the board, they were confident the board would grant the waivers. Their optimism stems from the fact that state law says the board must grant waivers unless it can find a compelling reason not to.

But Lucia said the board is inclined to reject any request that would preserve bilingual education.

“The rhetoric (the plaintiffs) have offered is misguided,” Lucia said. “We have denied numerous waivers in the past for denying the educational needs of children. The bilingual education status quo of the last two decades is a failure, and that (viewpoint) has been reflected in the board’s decisions of the last several months. So I think it’s a fallacy to assume we would automatically approve these.”

The three school districts also sought a court injunction allowing them to keep their current bilingual programs until their waiver requests are processed.

Needham denied that request. But Hersher told the court the education department — which has been at odds with the state board over the bilingual issue — does not intend to begin enforcing the law in the first month of the school year.

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