Measure may hold teachers liable

Lawsuits possible over English skills

If a doctor cuts off the wrong leg, the patient can sue. Ron Unz wants to try something similar in education.

An amendment that the California businessman wants Colorado voters to make to the state Constitution in November is spooking school officials because it would make them personally liable for some English learners who failed to learn English.

Superintendents would be most at risk, but teachers and school board members could be sued, too.

Denver schools superintendent Jerry Wartgow says the measure treats educators like criminals. Educators found liable for miseducating English learners would be fired, barred from holding any public-sector job for five years and face financial losses, according to the plan.

Unz counters that school officials have nothing to fear if they act in good faith and have good research to back up their decisions.

The feud concerns how and why waivers allowing students back into bilingual education could be granted if anti-bilingual Amendment 31 were to pass.

Opponents of Amendment 31 say it restricts the ability of parents and school officials to make choices about how to educate young English learners.

Unz says it just restricts bad choices.

Amendment 31 mandates one-year English immersion courses for non-English-speaking children in Colorado public schools. After that year, students would go into mainstream classes and teachers would speak only English.

Students can be waived back into bilingual programs, but not easily. A parent has to come to the school each year to request a waiver. The waiver request must be in writing and at least 250 words long. Even if the superintendent grants the waiver, the student must spend the first 30 days of every year in the immersion course.

Before granting the waiver, the superintendent should be very sure the bilingual program works, Unz says.

If it doesn’t?

“It comes down to whether a jury or judge will find it plausible that there was evidence that that particular child would learn English,” Unz said.

“It could be there was a lot of evidence it would work and it just failed in the case of that particular child. Then the judge can say, ‘Well, anybody can make that mistake.’ But with the mother of that child in the courtroom crying, saying her child couldn’t read English by grade 5, then I wouldn’t want to be in the shoes of the person who granted that waiver.

“And if it’s not just one child, but say 10 immigrant students who didn’t learn English, then all of their mothers will be there crying. The judge will say, ‘You mean none of you learned English?’ Then the judgment will be financially even greater.”

The amendment does not provide punitive damages. But an example of compensatory damages could be to make the superintendent pay tens of thousands of dollars to hire a private English tutor for a child found to have been inadequately educated in a bilingual program, Unz said.

Unlike doctors, educators would not be allowed to buy malpractice insurance. All damages would come out of their pockets.

“I think a judge or a jury will think, under certain circumstances, forcing the person who was responsible for the problem to pay out of their own pocket to hire a private English language tutor to teach the child whose education was ruined would not be unreasonable,” Unz said.

At a recent question-and-answer session with Unz and amendment co-author Rita Montero, Wartgow expressed outrage that he could lose his house if just one DPS graduate fails to get into Harvard someday.

Unz replied that educators are only on the hook if they break the law willfully and repeatedly. Some superintendents and principals did that in California and Arizona, where Unz’s first and second anti-bilingual ballot measures passed in 1998 and 2000, as an act of civil disobedience, he said.

“A lot of the bilingual programs in these other states just sloughed off the language. That’s why we had to tighten it,” he said.

The amendment gives aggrieved parents a decade to sue.

Immigrant parents need the unusually long statute of limitations because they might be too scared of the courts to sue right away, especially if they came to the U.S. illegally, Unz said.

The Cherry Creek school board found Amendment 31 so offensive that it voted unanimously on Sept. 9 to join Denver and other districts in condemning it – even though Cherry Creek already uses a teaching method that resembles immersion.

“I think you’re going to see less people willing to serve on school boards,” said Paul Hanley, a business lawyer and Cherry Creek board member.

“If you’ve got to be at risk with your own personal assets, why should I do it? I don’t get paid; it’s just a community service thing.”

Educators would face even more risk than Enron-style corporate crooks, Hanley said: “They don’t put their personal assets at risk. They have director and officer insurance.”

The Denver school board consulted a lawyer regarding the waiver process. They did not find his opinion reassuring.

“If we were asked by a principal or superintendent to advise him or her concerning a request for a special needs waiver, we would counsel that significant caution is in order,” Richard Westfall wrote.

The amendment does not define many of its own terms, such as “reasonable fluency in English,” meaning it would be hard to predict how a court would interpret it, Westfall wrote.

“There is much greater risk in granting a waiver application than in denying it,” he wrote.

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