Judge may order state to consider bilingual waivers

School districts throughout the state may be able to seek district wide waivers from implementing Proposition 227 — the anti-bilingual education initiative — under a tentative ruling issued by an Alameda County Superior Court judge.

The state Board of Education earlier this summer determined it did not have the authority to grant waivers to districts that didn’t want to comply with the voter-approved initiative that took effect Aug. 2, mandating replacement of bilingual education with “English immersion.”

But Judge Henry Needham Jr. indicated in a tentative ruling this week that he likely will decide the state board must hear such waiver requests. Oral arguments are scheduled for today in Oakland, after which Needham will issue a final ruling.

“We’re very happy. We believe (the tentative ruling) is consistent with local flexibility and control,” said Celia Ruiz, attorney for the Berkeley, Oakland and Hayward school districts.

Those three districts sued the state board, its members, the California Department of Education and state schools chief Delaine Eastin, arguing that the state education code empowers the state board to issue waivers. The districts also are seeking a preliminary injunction from implementing the initiative until their waiver requests are resolved.

“We think it’s outrageous if schools are told they don’t need to implement the initiative,” said Sheri Annis of English for the Children, the Proposition 227 campaign organization.

Annis said the initiative was designed so only individual parents — not school districts — could seek waivers which, in limited cases, would allow children to continue in classes using their primary language.

“The reason was exactly this — so there would not be blanket waivers granted to override the will of California voters,” she said.

In July, a federal judge in San Francisco refused to block implementation of the initiative, and an appellate court let the ruling stand. Earlier this month, a second federal judge declined to grant an injunction in a case filed in Los Angeles.

Needham’s tentative ruling — which could change following today’s hearing — would require the state board to consider such waivers, but would not insist the waivers be granted.

“The presumption (in the waiver statute) is strong that they shall be granted,” Ruiz said. “We’re confident that we’ll meet the requirements and the state board will be compelled to grant” waivers to the three school districts that filed suit.

Currently, 31 districts have submitted waiver requests to the state board, despite its position that it would not consider them, said board counsel Rae Belisle.

Belisle said she has advised the board that its general waiver authority in the education code is superseded by the decision of the electorate in the June primary. That opinion was backed by a legislative counsel.

But Education Department officials have disagreed and filed papers in the suit backing the position of the districts suing them.

That difference of opinion highlights continuing struggles between Eastin — a Democrat elected to the nonpartisan post of state superintendent of public instruction — and Republican Gov. Pete Wilson and his appointed state Board of Education, which sets the state’s education policy.

Last week, Wilson vetoed $8 million from the Education Department’s budget, about a fourth of its state funding. The governor wants the department’s 11 attorneys transferred to the attorney general’s office.

Wilson spokesman Sean Walsh called Eastin’s position in the waiver case “dishonest.”

“She’s saying on one hand she’s supporting a law passed by (the voters) and and on the other hand, she’s trying to undermine it,” Walsh said.

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