San Francisco Chronicle
Friday, August 28, 1998
In the first legal blow to Proposition 227, the voter-approved measure outlawing bilingual education, a judge ruled yesterday that the state Board of Education must consider school district requests for a waiver from the new law.
The ruling is significant because it rests on a portion of the state Education Code that requires approval of such requests unless doing so would mean “the educational needs of the pupils are not adequately addressed.”
While supporters of bilingual education hailed the decision by Alameda County Superior Court Judge Henry Needham as “fantastic,” lawyers for the state Board of Education warned it will “create a mountain of litigation and force 227 into the courts, district by district.”
More than 30 school districts, including eight in the Bay Area, have waiver requests before the state board.
The local districts are Berkeley, Fremont, Hayward, Napa Valley, Oakland, Palo Alto, Ravenswood City and San Mateo-Foster City.
The board has refused to consider any petitions, citing the “will of the voters” who passed the English-only law in June by a margin of 61 percent. In addition, the board members are appointees of Governor Pete Wilson, who favors Proposition 227.
Now, the waiver requests could be heard as early as September 10 at the board’s next meeting. The districts are asking to keep the bilingual education classes they have used for years to educate children who don’t speak English. One in five California students, or 1.4 million, fall into this category.
Because the board refused to consider their waver requests, the Berkeley, Oakland and Hayward school districts sued the state last month.
Attorneys for the districts successfully argued that exceptions should be considered because the state Education Code states that “the state Board of Education shall approve any and all requests for waivers except in those cases where the board specifically finds . . . the educational needs of the pupils are not adequately addressed.”
The judge’s decision represents the first good news for supporters of bilingual education in more than a year, since opponents began their ballot drive.
Bilingual education supporters predicted that once the state board hears the waiver requests, it will have a tough time proving that programs using Spanish, Chinese or any of the myriad languages students speak cause academic harm.
“I think it’s fantastic,” said Hayward School Board member Frank Garcia, who also heads a master’s program in bilingual education at San Francisco State University. “I believed from the very beginning that the kind of program we’ve put together for our students has been quite effective. Now we’ll be able to be heard.”
But Bill Lucia, executive director of the state Board of Education, said the waiver hearings are not a done deal.
“We disagree with the judge’s decision,” he said, but declined to say whether board attorneys are considering an appeal.
During yesterday’s hearing, Deputy State Attorney General Angela Botelho said the districts were trying to “do an end run” around Proposition 227. She told the judge that ordering waiver hearings would “create a mountain of litigation” because those that failed to win a waiver would probably sue.
It was the only point on which both sides agreed.
Attorney Celia Ruiz, representing the three districts, told the judge they would implement Proposition 227 “only after all legal remedies are exhausted.”
So far, the requirement that public-school teachers instruct only in English has withstood several challenges to its constitutionality in federal court since Proposition 227 passed in June.
Although state Superintendent Delaine Eastin has no direct role in the controversy, she reviews requests for Education Code waivers of all kinds and makes recommendations to the board.
“No one believes that everyone who applies for a waiver will get the waiver, nor will we recommend that,” Eastin said. “I think the advantage will go to districts that prove their programs have rigorous standards and genuine assessments and accountability.”
Ron Unz, the Silicon Valley software executive who wrote Proposition 227, called Needham’s ruling “absolutely absurd” and accused the educators of “judge shopping.” He said the state constitution says that any voter-approved initiative supersedes other legislation, and therefore the Education Code provision is irrelevant.
That view was recently endorsed by Bion Gregory, the state’s legislative counsel.
Meanwhile, bilingual education proponents such as San Francisco schools Superintendent Bill Rojas have said that November’s gubernatorial election could deflate the controversy because neither of the top two candidates supported Proposition 227.
And it will be one of them, either Dan Lungren or Gray Davis, who will soon be appointing the state Board of Education.