Lawsuit challenges reduced bilingual ed

The suit filed by parents of a first-grader claims their daughter is in danger of repeating because she is making no progress in an English class.

A first-grader’s parents have filed a lawsuit against Tucson Unified School District, challenging the constitutionality of Proposition 203, which drastically reduced bilingual education classes in Arizona.

The William E. Morris Institute for Justice filed the suit yesterday in the U.S. District Court of Appeals on behalf of Lizabeth and Oscar Morales. Attorney Tom Berning said the institute, a non-profit law firm for low-income Arizonans, likely would file a motion for a preliminary injunction next week. The lawsuit alleges Proposition 203, passed by voters a year ago, has a waiver process that is unconstitutional because it fails to provide parents and children with the minimum requirements of due process.

A waiver request by the parents of Grijalva Elementary School student Jasmine Morales was denied without notice or explanation, Berning said. This was done, he added, despite the first-grade teacher and principal recommending the child be placed in a bilingual program because she was making no progress in either English acquisition or academic content areas while she was in a sheltered English immersion class.

TUSD spokeswoman Estella Zavala said the district will not comment on pending litigation.

Berning said the young girl is in danger of having to repeat the first grade unless action is taken.

“We would like to try to get the child placed into a bilingual education class by the start of next semester (in early January),” he said.

Berning believes there are “other Jasmines” out there in need of bilingual study and the institute – which represents low-income Arizonans in the areas of civil rights, education and welfare reform – has been doing “underlying legal research” to challenge the bilingual restrictions since November 2000.

Ron Unz, a wealthy California opponent of bilingual education who helped fund Proposition 203 in Arizona, expressed confidence the new law will stand. The said there already have been “quite a number” of lawsuits filed in California against his Proposition 227, which Arizona’s Proposition 203 mirrors. Proposition 227 has prevailed in each case, Unz said.

“It’s kind of strange,” he said. “Any federal lawsuit would go to the same 9th District Court of Appeals, which already has made decisions in favor of Proposition 227. I don’t know what they would hope to gain in covering the same ground that has already been decided.

“Our attorneys will look into the matter, but I don’t see why the 9th Circuit would even revisit the matter when they have already decided the issues in Prop. 227,” Unz said.

Tucsonan Mary Mendoza, who last year helped organize Proposition 203 in Arizona, said Jasmine Morales belongs in a sheltered English immersion class. “She will learn there. It will be best for her,” she said. “She will pick up the English language there, but if you put her in a bilingual education class, she’ll stick with the Spanish and never learn English.”

She recommended patience on the parents’ part.

“It will take about a year to learn English, and she’s just in the first semester,” Mendoza said.

“Not all children learn at the same pace.”

Mendoza said she found it was somewhat ironic TUSD was being sued by a Proposition 203 opponent, when she said she believes there have been cases that might result in TUSD being sued by those loyal to the proposition. “(TUSD) has been the one responsible for not fully implementing Prop. 203,” she said.

But the lawsuit, which seeks damages “in an amount to be proved at trial,” states that Congress encouraged local school districts to develop and implement bilingual education and other English language remediation programs by providing financial assistance under the Bilingual Education Act. The lawsuit criticizes Proposition 203 for not requiring that a parent or guardian be notified of the reason for denial of a waiver or be provided an opportunity to challenge the denial.

“By implementing Prop. 203 without affording procedural due process in cases of denial of a parental waiver, and by failing to provide Jasmine Morales with an appropriate education program under the Equal Education

Opportunity Act of 1974, the district has denied the Morales their constitutional rights,” the suit alleges.

The suit claims that if the district is not enjoined, the young girl “will continue to be deprived of the education program she needs to make adequate progress … and will also continue to suffer from severe emotional harm and trauma.”


Three types of parental waivers are allowed:

Type 1 – Children who already know English

Type 2 – Children 10 years or older

Type 3 – Children with certain special individual needs

Parents may request a Type 1 waiver for a student who has demonstrated a working knowledge of English by achieving a score of 65 or higher on the Language Assessment Scale, based on a placement test.

For a Type 2 waiver, a parent must provide a birth certificate or school records as confirmation of the student’s age. Eligible students are considered for a waiver if it is the informed belief of the school principal and staff that an alternate course of educational study would be better suited to the child’s overall educational progress and rapid acquisition of basic English language skills.

Requests for Type 3 waivers are evaluated based on a written description of no fewer than 250 words documenting the student’s special individual needs. The student must have spent at least 30 calendar days in a structured English immersion class before a Type 3 waiver is considered.

Parental waivers may be requested at any time during the school year. The decision to approve or disapprove a request must be made by the school principal within five school days of verifying a student’s eligibility. Approved waivers will remain in effect for the duration of the school year and must be renewed each year.

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