OAKLAND — A judge Thursday forced the state Board of Education to consider three East Bay school districts’ pleas to continue bilingual programs.

Celia Ruiz, an attorney for the Oakland, Berkeley and Hayward school districts, called the ruling a victory and “the first significant exception to a rigid, inflexible application” of Proposition 227.

Ruiz said state law basically will force the board to grant waivers from Prop. 227’s requirements. But Deputy Attorney General Angela Botelho said the state board she represents still can reject the requests if it finds they do not meet students’ education needs.

This dispute could land the whole matter back in court before long.

Prop. 227, approved by 61 percent of the voters June 2 and upheld by a federal judge in July, requires all students to be taught in English. Students who speak limited or no English are to be taught in separate, English-immersion classrooms for up to a year.

The only question Alameda County Unified Superior Court Judge Henry E. Needham Jr. faced Thursday was whether the elements of Prop. 227 are subject to the same waiver process as other elements of the state education code.

The Board of Education claims it does not have the authority to grant waivers to laws approved by voters because that would amount to repealing the voters’ will.

Botelho told Needham such waiver hearings open the door to “a mountain of litigation.” Any district whose waiver request is denied can appeal to civil court, as can any parent who is upset by a waiver that is granted.

That would take an education policy issue out of the hands of administrators, parents and voters, and put it into the hands of the courts, and that is not right, Botelho argued.

But Ruiz and William Michael Quinn Jr., the school districts’ attorneys, argued Prop. 227 did not include any exemption from the waiver process and had to follow the same procedures as other education laws. Needham apparently agreed, ordering the board to hear the district’s requests.

After Needham’s ruling, Ruiz said if the board does not grant the waivers, the districts will appeal in court. Research on which teaching method is better — bilingual education or English immersion — has been “ambiguous,” she said. That means there is no way to prove bilingual education does not meet students’ needs, so there is no reason not to grant the waiver.

Bob Spurlock, the Board of Education’s deputy executive director, disagreed.

“The board has as much latitude as it wants,” he said. “Her (Ruiz’s) statement presupposes that bilingual programs across the state are homogeneous, and they’re not.”

The board can weigh the merits of Prop. 227 against the alternatives proposed in the district’s waiver requests and choose what is best for students, Spurlock said.

The board probably will take up the matter at its next meeting, scheduled Sept. 9-11, said Michael Hersher, attorney for the state Department of Education and Superintendent Delaine Eastin. More than 30 other school districts have requested total or partial waivers from the measure’s requirements, he said.

Hersher said the department and Eastin support the districts’ right to a hearing before the board, and will not take any action against the districts for not complying with Prop. 227, at least not until the board has ruled on their requests.



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