Waiver request must be heard

Judge backs districts on Prop. 227 exemption

In a rare legal victory for bilingual education supporters, an Alameda County Superior Court judge has ruled that state officials must consider granting waivers to three school districts that want to be exempt from Proposition 227.

The state Board of Education has refused to even consider waiver requests for Proposition 227, saying it has no authority to overrule a voter-approved initiative.

But in a ruling handed down Tuesday, Judge Henry Needham said the Oakland, Berkeley and Hayward school districts have a legal right to at least plead for the waivers before the state Board of Education.

The ruling is “tentative,” meaning the judge could change his mind at a court hearing scheduled for this morning.

If the ruling survives legal challenges, it could eventually provide a loophole for schools in the state that want to bypass Proposition 227 and continue teaching children at least partially in their native language.

“This puts us in the business of possibly having to process thousands of requests,” said Rae Belisle, attorney for the state Board of Education.

The ruling stems from a lawsuit filed July 16 against the state board by the three East Bay districts.

The districts had filed waiver requests with the board, seeking exemption from Prop. 227, the June anti-bilingual education initiative that requires nearly all classroom instruction to be in English.

The board said in June that it had no legal right to grant the waivers and refused to consider requests from any districts.

But attorneys for the districts noted that the board routinely grants waivers from provisions of the state education code, such as teacher work load and instructional time. Since Prop. 227 is now part of the education code, they argued, the board has the same authority to waive the initiative.

“We want the option of being able to use native language instruction,” said Jack McLaughlin, superintendent of the Berkeley Unified School District. “We feel the state board has the option to hear our request. They still can approve or not approve it.”

But state board lawyers say voter-approved initiatives have a unique legal standing, and the board is powerless to consider overriding them.

The judge is “saying that we have the authority that we thought we did not have,” Belisle said.

To date, the state has received 31 requests from schools or districts seeking to avoid Prop. 227. Belisle said Tuesday’s ruling — if it is not appealed — could ultimately force the board to process all of those requests.

If that happens, the districts might stand a good chance of getting their waivers. Attorneys on both sides of the case said the board must grant waivers of the education code unless it can show a compelling reason not to.

“This is all we need. The waiver statute is worded so strongly in favor of granting waivers,” said Celia Ruiz, an attorney representing the districts. “I don’t anticipate any problem with them granting them.”

Needham said he would consider a request in his Oakland courtroom this morning to temporarily exempt the three districts from the new law until their waiver requests can be heard.

Belisle said the state would argue against that request.

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