The Case Against Proposition 227

Plaintiffs' Legal Brief Requesting a Preliminary Injunction

Filed June 10, 1998

Hearing scheduled for July 15, 1998, 2:30 p.m.

U.S. District Court, San Francisco

Courtroom 10, Hon. Charles A. Legge


Antonia Hernández, SBC No. 061489

Theresa Fay-Bustillos, SBC No. 99408

Thomas Saenz, SBC No. 159430

Silvia Argueta, SBC No. 144400

Maribel S. Medina, SBC No. 189512

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 S. Spring Street

Los Angeles, CA 90014

Telephone: (213) 629-2512

Joseph Jaramillo, SBC No. 178566

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND

182 Second Street, Second Floor

San Francisco, CA 94105

Telephone: (415) 543-5598 Peter D. Roos, SBC No. 41228

Deborah Escobedo, SBC No. 89093

MULTICULTURAL EDUCATION, TRAINING AND ADVOCACY, INC.

785 Market Street, Suite 420

San Francisco, CA 94103

Telephone: (415) 546-6382

[Listing of counsel continued on third page]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

VALERIA G., through her parent and next friend, YOLANDA G.; J.W.P., through her parent and next friend, S.P.; ANGEL V., through his parent and next friend, S.A.P.; ROSALINDA O., through her parent and next friend, MARTA O.; DAVID R., through his parent and next friend, DAVID R.; HILDA M., through her parent and next friend, MARIA M.; O.G., through his parent and next friend, DORA G.; ELIZABETH S., through her parent and next friend JOSE S.; MUJERES UNIDAS Y ACTIVAS;

PARENTS FOR UNITY; CHINESE FOR AFFIRMATIVE ACTION; CALIFORNIA LATINO CIVIL RIGHTS NETWORK; NATIONAL COUNCIL OF LA RAZA; and SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE OF GREATER LOS ANGELES; for themselves and on behalf of all those similarly situated,

Plaintiffs,

v.

PETE WILSON, in his official capacity as the Governor of the State of California; STATE BOARD OF EDUCATION, and its members, YVONNE W. LARSEN, ROBERT L. TRIGG, TIMOTHY C. DRAPER, KATHRYN DRONENBERG, MARION JOSEPH, MEGAN KEPHART, MARION MCDOWELL, JANET NICHOLAS, GERTI B. THOMAS, and MARINA TSE; and DELAINE EASTIN, in her official capacity as the STATE SUPERINTENDENT OF PUBLIC INSTRUCTION,

Defendants.

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No. C 98-2252 CAL

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

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John Affeldt, SBC No. 154430

Mark Savage, SBC No. 141621

Martha I. Jiménez, SBC No. 128536

PUBLIC ADVOCATES, INC.

1535 Mission Street

San Francisco, CA 94103

Telephone: (415) 431-7430

Edward M. Chen, SBC No. 95790

ACLU FOUNDATION OF NORTHERN CALIFORNIA

1663 Mission Street, Suite 460

San Francisco, CA 94103

Telephone: (415) 621-2493

Christopher Ho, SBC No. 129845

Joannie C. Chang, SBC No. 187749

Marielena Hincapié, SBC No. 188199

The EMPLOYMENT LAW CENTER,

A Project of the LEGAL AID SOCIETY OF SAN FRANCISCO

1663 Mission Street, Suite 400

San Francisco, CA 94103

Telephone: (415) 864-8848

Mark D. Rosenbaum, SBC No. 59940

Rocio L. Cordoba, Of Counsel

ACLU FOUNDATION OF SOUTHERN CALIFORNIA

1616 Beverly Boulevard

Los Angeles, CA 90026

Telephone: (213) 977-9500

Stewart Kwoh, SBC No. 61805

Julie Su, SBC No. 174279

Bonnie Tang, SBC No. 166700

ASIAN PACIFIC AMERICAN LEGAL CENTER

1010 South Flower Street, Suite 302

Los Angeles, CA 90015

Telephone: (213) 748-2022

Lora Jo Foo, SBC No. 121893

Frank Tse, SBC No. 155653

ASIAN LAW CAUCUS, INC.

720 Market Street, Suite 500

San Francisco, CA 94102

Telephone: (415) 391-1655

Attorneys for Plaintiffs

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TABLE OF CONTENTS

Table of Authorties iv

I. INTRODUCTION 1

II. STATEMENT OF THE FACTS 3

California's Limited-English Proficient Children 3

The Services Provided LEP Students Before Proposition 227 3

The Changes Mandated By Proposition 227 6

III. THE STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF 9

IV. IRREPARABLE HARM WILL RESULT ABSENT PRELIMINARY RELIEF 10

A. The Inherent Irrationality of Proposition 227 and Its Consequences 11

1. The "One-Year-and-Out" Provision 11

2. The Denial of Equal Access to the Curriculum 14

3. The Replacement of Individual Assessments of Need with a Prescriptive, "One-Size-Fits-All" Program 15

4. Exclusion of Parental Participation 19

5. Administrative Chaos 21

V. PLAINTIFFS' CLAIMS ARE MERITORIOUS AND RAISE "SERIOUS QUESTIONS" CONCERNING THE LEGALITY OF PROPOSITION 227 24

A. PROPOSITION 227 WILL INEVITABLY RESULT IN STATE AND LOCAL VIOLATIONS OF THE EQUAL EDUCATIONAL OPPORTUNITIES ACT 24

1. Proposition 227 Will Force State Educational Agencies To Violate The Responsibilities Squarely Placed Upon Them By The EEOA 25

2. In Addition to Violating the State's Supervisory Duties, Proposition 227's Program is So Flawed That It Would Violate the EEOA Were It To Be Implemented By a Local School District 29

a. The Program Prescribed Under Proposition 227 Is Not Based On a Sound Educational Theory for Assuring Either Sufficient English Language Acquisition And Literacy or Equal Access to the Curriculum 31

i. Proposition 227's One-Year Limit on English Acquisition 31

ii. Proposition 227's Denial of Access to Curriculum 32

b. The Program Prescribed by Proposition 227 Fails to Assure Effective Implementation of Its Educational Theory, and Its Adequate Evaluation 34

i. Proposition 227 Fails to Ensure that Teachers are Qualified To Teach Under the New Program 34

ii. Proposition 227 Fails to Establish an Evaluation System and Eliminates The Capacity for Change 34

c. The Program Prescribed by Proposition 227 Fails to Assure Flexibility in Response to Evaluative Outcomes 35

i. Proposition 227 Fails to Assess the Individual Needs of Each Student and Permit Tailoring of Specific Programs to Meet Those Needs 35

3. Conclusion 36

B. PROPOSITION 227 ALSO VIOLATES THE SUPREMACY CLAUSE BY CREATING AN OBSTACLE TO IMPLEMENTATION OF THE EEOA AND VIOLATING CONGRESSIONAL POLICY FAVORING PRIMARY LANGUAGE INSTRUCTION 37

1. Proposition 227 Impedes Local School Districts in Their Efforts to Comply With Their Own Obligations Under the EEOA 38

2. Proposition 227 Impermissibly Bars the Congressionally-Favored Option of Primary Language Instruction 39

C. PROPOSITION 227 VIOLATES TITLE VI BECAUSE IT IMPOSES AN UNJUSTIFIABLE DISPARATE IMPACT UPON NATIONAL ORIGIN MINORITIES BY DENYING THEM ACADEMIC INSTRUCTION ON A PAR WITH THEIR ENGLISH-FLUENT PEERS 41

1. Proposition 227's Instructional System Has A Disparate Impact On National Origin Minorities 42

a. Proposition 227's "Immersion" Program Adversely Impacts Language Minorities By Denying Them The English Language Development Necessary for Them To Compete With Their English-Fluent Peers 43

b. Proposition 227's Transitional Program Has A Disparate Impact on Minorities By Denying Them Academic Instruction Comparable to That Received By Their English-Fluent Peers 43

c. Proposition 227's Post-Transitional Phase Will Disparately Impact Minorities By Tracking Them Into Inferior Instruction 44

2. Proposition 227's Denial of Academic Instruction to and Resulting Remedial Tracking of Minorities Is Not Justified By Educational Necessity 45

3. Less Discriminatory Alternatives Exist To Proposition 227's Denial of Academic Instruction to National Origin Minorities 45

4. Conclusion 46

D. PROPOSITION 227 VIOLATES THE EQUAL PROTECTION CLAUSE BY IMPEDING MINORITIES' FUNDAMENTAL RIGHT TO PARTICIPATE IN THE POLITICAL PROCESS 46

1. Proposition 227 Triggers Strict Scrutiny By Reallocating Political Authority in a Discriminatory Manner and Burdening Minorities' Future Pursuit of Equal Educational Opportunity 47

a. Proposition 227 Removes Political Authority Over Programs Designed to Provide Equal Educational Opportunity to National Origin Minorities to the Most Remote Level of Decision Making 49

b. Proposition 227 Targets Programs of Particular Interest to National Origin Minorities 50

2. Proposition 227 Cannot Survive Strict Scrutiny Because It Is Not Narrowly Tailored to Achieve a Compelling State Interest 53

VI. CONCLUSION 53

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TABLE OF AUTHORITIES

Federal Cases Page(s)

Castaneda v. Pickard

648 F.2d 989 (5th Cir. 1981) passim

Cintron v. Brentwood Union Free Sch. Dist.

455 F.Supp. 57 (E.D.N.Y. 1978) 38

Coalition for Economic Equity v. Wilson

110 F.3d 1431 (9th Cir.), cert. denied, __ U.S. __, 118 S.Ct. 397 (1997) 47, 51

Coalition for Economic Equity v. Wilson

946 F. Supp. 1480 (N.D. Cal. 1996) 47

Elston v. Talladega County Bd. of Educ.

997 F.2d 1394 (11th Cir. 1993) 41, 45, 78

Farmers Educ. and Coop. Union of America v. WDAY

360 U.S. 525 38

Felder v. Casey

487 U.S. 131 (1988) 38

Frank's GMC Truck Ctr., Inc. v. General Motors Corp.

847 F.2d 100 (3d Cir. 1988) 10

Free v. Bland

369 U.S. 663 (1962) 37

Gade v. National Solid Wastes Management Ass'n

505 U.S. 88 (1992) 37

Georgia State Conference of Branches of NAACP v. Georgia

775 F.2d 1403 (11th Cir. 1985) 41, 45

Gilder v. PGA Tour, Inc.

936 F.2d 417 (9th Cir. 1991) 9

Gomez v. Illinois State Bd. of Educ.

811 F.2d 1030 (7th Cir. 1987) passim

Guardians Ass'n v. Civil Serv. Comm'n of New York

463 U.S. 582 (1983) 41, 43

Hazelwood Sch. Dist. v. United States

433 U.S. 299 (1977) 41

Heavy Runner v. Bremner

522 F.Supp. 162 (D. Mont. 1981) 35

Hill v. Florida

325 U.S. 538 (1945) 38

Hines v. Davidowitz

312 U.S. 52 (1941) 37

Hunter v. Erickson

393 U.S. 385 (1969) passim

Idaho Migrant Council v. Board of Educ.

647 F. 2d 69 (9th Cir. 1981) 24, 26

International Paper Co. v. Ouellette

479 U.S. 481 (1987) 37

Johnson v. California State Bd. of Accountancy

72 F.3d 1427 (9th Cir. 1995) 10

Jones v. Rath Packing Co.

430 U.S. 519 (1977) 37

Keyes v. School Dist. No. 1

576 F.Supp. 1503 (D.Colo. 1983) 34, 38

Larry P. v. Riles

793 F.2d 969 (9th Cir. 1984) passim

Lau v. Nichols

414 U.S. 563 (1974) passim

People ex rel. Van De Kamp v. Tahoe Reg'l Planning Agency

766 F.2d 1319, modified, 775 F.2d 998 (9th Cir. 1985) 10

People Who Care v. Rockford Bd. of Educ.

851 F.Supp. 905 (N.D.Ill. 1994),

aff'd in part, rev'd in part on other grounds, 111 F.3d 528 (7th Cir. 1997) 45

Perez v. Campbell

402 U.S. 637 (1971) 37

Pharmaceutical Soc'y of N.Y. v. N.Y State Dept. of Soc. Serv.

50 F.3d 1168 (2d Cir. 1995) 10

Plyler v. Doe

457 U.S. 202 (1982) 10

Regents of the Univ. of California v. ABC, Inc.

747 F.2d 511, 521 (9th Cir. 1983) 10

Rios v. Read

480 F.Supp. 14 (E.D.N.Y. 1978) 38

San Antonio Independent School Dist. v. Rodriguez

411 U.S. 1 (1973) 38

Serna v. Portales Mun. Sch.

499 F.2d 1147 (10th Cir. 1974) 38

State of Alaska v. Native Village of Venetie

856 F.2d 1384 (9th Cir. 1988) 9

Teresa P. v. Berkeley Unified Sch. Dist.

724 F. Supp. 698 (N.D. Cal. 1989) 25, 29

U.S. v. Odessa Union Warehouse Co-Op

833 F.2d 172 (9th Cir. 1987) 9

United States v. Texas

680 F.2d 356 39

Washington v. Seattle Sch. Dist. No. 1

458 U.S. 457 (1982) passim

State Cases

Dawson v. East Side Union High Sch. Dist.

28 Cal. App. 4th 998 (1994) 49

Piper v. Big Pine Sch. Dist.

193 Cal. 664 (1924) 26

United States Constitution

Article VI, Cl. 2 37

Federal Statutes and Regulations

Bilingual Education Act

(Title VII of the Elementary and Secondary Education Amendments of 1967)

20 U.S.C. § 7401 et seq. 39

Civil Rights Act of 1964, Title VI

42 U.S.C. § 2000(c) 41

Civil Rights Act of 1964, Title VI regulations

34 C.F.R. § 100.3(b)(2) (U.S. Dept. of Education regulations) 41

Education Amendments of 1974, Pub. L. No. 93-380, § 702(a), 88 Stat. 484 40

Equal Educational Opportunities Act ("EEOA")

20 U.S.C. § 1701 et seq. 3, 24

20 U.S.C. § 1703(f) passim

20 U.S.C. § 7402(a)(9)

20 U.S.C. § 7454 40

California Constitution

Cal. Const. Art. II, § 8 49

Cal. Const. art. II, § 10 49

Cal. Const. art. IX, § 14 50

State Statutes and Regulations Page(s)

California Education Code

§ 300 7, 8

§ 305 7

§ 306 7

§ 310 8

§ 311 8, 17

§ 320 9

§ 335 9, 49

§ 35160 49

§ 44253 6

§ 44344 6

§ 51053 49

§ 51054 49

§ 52160 et seq. 3, 4, 5, 6

§ 52161 3, 49

§ 52163 3

§ 52164 4, 6

§ 60000 49

§ 62000 5

§ 62002 4, 6

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I. INTRODUCTION

Nearly 25 years ago, the U.S. Supreme Court held that "there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education." Lau v. Nichols, 414 U.S. 563, 566 (1974). In the wake of that decision, Congress enacted legislation intended to guarantee to all limited English-proficient students that State and local educational agencies take "appropriate action" to ensure both their English language acquisition as well as their equal access to the substantive academic curriculum.

Until last week, the State of California sought to meet this obligation through a cooperative system under which State educational agencies established and enforced meaningful minimum educational standards for the instruction of LEP children, while entrusting local school districts and schools with the flexibility, within those standards, to assess the particular needs of each LEP student and to fashion an instructional program meeting those needs.

Last week, a majority of California voters enacted Proposition 227, the so-called "English Language Education for Immigrant Children" initiative.(1) Although its proponents made extravagant claims as to the alleged failure of bilingual education and other methods of teaching English to children who speak other primary languages, Proposition 227 substituted in place of those educationally sound strategies a single untested, unproven and, indeed, wholly experimental theory: one which limits English language instruction to one year, and which stipulates that such instruction must be virtually entirely in English.

While its precepts may possess political appeal, Proposition 227 will wreak unimaginable harm upon the approximately 1.4 million limited- or non-English proficient students ("LEP students") enrolled in California's public schools. They will not only not learn English under this theory; they will, in addition, suffer long-term, irremediable educational injury because of its extreme, shortsighted prescriptions. Children making great strides under existing programs -- programs developed and found appropriate for them by State and local educational agencies -- will be pulled out of those programs and forced to "sink or swim" under the untried Proposition 227 régime. All others will have just one year -- a period decried by all recognized educational experts as wholly inadequate -- to learn enough English to survive in English-instruction classrooms, an impossible task. Proposition 227 not only mandates a massive reduction of educational services to LEP students statewide; it also strips local schools and school districts of their flexibility as to how to best address the educational needs of those already at-risk students.

Quite simply, these LEP students -- virtually all of whom are, by definition, national origin minority children -- will be denied the public education to which they are entitled. Their life prospects will be shattered as a result.

What is more, Proposition 227 locks in its single, "one-size-fits-all" theory for the indefinite future by taking away from educational agencies, educators, and the parents and guardians of LEP students their ability to modify it in any meaningful way. Now, instead, of being able to lobby a local school board or even the Legislature for such changes, the parents and guardians of LEP children may only seek beneficial policies and programs that differ from Proposition 227's imposed model by winning a statewide vote -- a nearly insuperable obstacle for the minority communities who, historically, have been those most concerned about making educational options available to limited-English-proficient children.

This measure demonstrably violates both the Constitution of the United States as well as federal statutes enacted to protect the interests of LEP students. It will also visit irreparable, lifelong injury upon this uniquely vulnerable class of children -- let alone the incalculable damage it will cause to the social and economic fabric of this State. Plaintiffs, therefore, now ask this Court to issue an order preliminarily enjoining its implementation pending trial.

II. STATEMENT OF THE FACTS

California's Limited-English Proficient Children

There are approximately 1.4 million school children in California identified as being either limited-English-proficient ("LEP") or non-English-proficient ("NEP") (collectively, "LEP students").(2) They make up about 25% of the State's total school population, and roughly 50% of all LEP students in the nation. Although they share a common linguistic status, they are also characterized by their astonishing diversity and by the variety of circumstances they inhabit. LEP children are found in virtually every district in the State, from Humboldt County in the north to the border districts in the south. There are schools in which nearly 100% of the students are Spanish-speaking LEP students, and schools with isolated Hmong or Vietnamese students. Moreover, LEP students differ widely as to their levels of proficiency in their primary language as well as in English; some come to school with no knowledge of English. Some are literate in their primary language, while others have only spoken proficiency. While the majority of LEP students are at the primary level, they are nonetheless spread throughout the grades, with approximately 30% at grades 7-12.(3) While about 80% of California's LEP children speak Spanish as their primary language, there are nonetheless more than eighty different languages represented among them.

The Services Provided LEP Students Before Proposition 227

The State Board of Education ("State Board"), the State Superintendent of Public Instruction, the California Department of Education ("CDE"), and the local school districts in the state that enroll LEP students have all been independently obligated, under both state and federal law, to ensure that LEP students have access to appropriate programs that ensure they are not denied equal educational opportunities due to their lack of English proficiency. Accordingly, during the 1996-97 school year, approximately 30 percent of California's LEP students were enrolled in "bilingual education" programs -- i.e., programs that provide students with academic instruction in their primary language while they learn English. The remainder were served in a variety of other programs.

Under longstanding state law, these students were placed in bilingual programs on the basis of an assessment conducted by local districts, using locally devised criteria.(4) The individual assessment determined whether it was necessary to provide each student with substantive academic instruction through the use of her primary language in order to provide her with equal opportunity for academic achievement in the regular course of study, and to prevent her from incurring any substantive academic deficits. (5) Typically, students enrolled in bilingual education programs represented the least English-proficient students enrolled in a district. While they had direct access to core academic subjects such as social studies, math, science, and language arts through instruction in their primary language, they also received daily instruction in English language development ("ELD," commonly referred to as English as a Second Language ("ESL") instruction) in order to teach them English as effectively as possible.(6)

In addition to bilingual education programs, school districts throughout the state utilized a number of instructional strategies to address the needs of the remaining 70 percent of California's LEP students, inasmuch as each was entitled to a program of instruction in ELD enabling her to develop English proficiency as effectively and efficiently as possible. While the latter students were not in "bilingual programs" per se or self-contained bilingual classrooms, virtually all of these alternative programs sought to provide them with meaningful amounts of primary language assistance, often through the use of paraprofessionals and classroom aides.(7) Until the passage of Proposition 227, however, the touchstone for placement in either a bilingual program or any other alternative ELD program was the assessed academic and English language acquisition needs of the individual student. The variety of instructional options available to LEP students, coupled with the ability of parents to influence LEP programs through advisory committees and other channels of public input to schools and school boards, ensured that LEP programming was highly flexible and could be adjusted to the needs of the particular student, in keeping with statutory mandates and State-level guidelines.

Although the specific statutory mandate for these programs, the Chacon-Moscone Bilingual-Bicultural Act of 1976, § 52160 et seq.,(8) was allowed to "sunset" in 1987, § 62000.2, the California Legislature nonetheless provided for continued funding for those programs in order to preserve their "general purposes." § 62002.(9) Those purposes have been construed by the California Department of Education and State Board of Education as requiring inter alia that the dual needs (learning English and curricular access) of LEP students be addressed. Those agencies required primary language instruction for LEP students where it was deemed necessary to ensure equal opportunity for academic achievement; and, of course, school districts had to provide intensive English language instruction.(10)

Guidelines and mechanisms initially established pursuant to the Chacon-Moscone Act, designed to ensure that each LEP student in California was properly identified, assessed, and served, were in effect and enforced by the CDE for many years. When properly implemented, they ensured uniformity and consistency statewide, and guaranteed that no LEP student in need of appropriate educational services, in the form of bilingual education or otherwise, would be denied them. Of almost equal importance to these procedures was the use of objective and uniform reclassification, or "exit," criteria, which ensured that no LEP student would be redesignated as English-fluent until she was in fact capable of equal participation in the regular academic curriculum.(11) Finally, another critical guarantee that existed prior to the enactment of Proposition 227 was the State's requirement that teachers who served LEP children in a special program possessed the requisite skills and knowledge appropriately to carry out that program.(12)

The Changes Mandated By Proposition 227

Proposition 227 purports to fundamentally and unilaterally redefine the federal and state legal rights of LEP students. In contrast to the previous system, which allowed for a diversity of instructional options for LEP students and accorded ample flexibility to local school districts in meeting their needs, Proposition 227 decrees that a single educational theory will henceforth serve as the norm for all LEP students, entirely irrespective of their individual characteristics or specific educational needs. It declares:

[A]ll children in California public schools shall be taught English by being taught in English. In particular, this shall require that all children be placed in English language classrooms. Children who are English learners shall be educated through sheltered English immersion during a temporary transition period not normally intended to exceed one year. . . . Once English learners have acquired a good working knowledge of English, they shall be transferred to English language mainstream classrooms.

§ 305. In the "immersion" classroom, "nearly all classroom instruction is in English" § 306(c), even though the students in that classroom are by definition "not currently able to perform ordinary classroom work in English" § 306(a). Although the language of instruction in "mainstream" academic classrooms will be "overwhelmingly" in English, § 306(b), Proposition 227 requires only that LEP students have " a good working knowledge of English" -- not the higher level of academic English and English literacy needed for classroom work -- before they are transferred there. § 305. Moreover, contrary to established educational practice requiring special training for those teaching LEP students, the initiative requires only that teachers "possess a good knowledge of the English language." § 306(b).

In sum, therefore, Proposition 227 obliterates decades of educational experience and the options developed during that time which recognized and addressed the specific, individual needs of each LEP student. It not only prohibits those programs commonly referred to as "bilingual education," but goes even further to outlaw any English language development program that violates the "nearly all in English" requirement, or that lasts for more than one year. No program, including those primarily focused on English acquisition, has ever imposed a presumptive one-year limit on services. No program, even those focused on ELD, has ever attempted to subject the role of the student's primary language to the "nearly all in English" standard. Thus, virtually every program now in existence in California is barred by Proposition 227.

In further disregard for the uniqueness of each LEP student and her entitlement to tailored educational strategies, the initiative also provides that during the "sheltered English immersion" period, "[l]ocal schools shall be permitted to place in the same classroom English learners of different ages but whose degree of English proficiency is similar . . . [and] shall be encouraged to mix together in the same classroom English learners from different native-language groups but with the same degree of English fluency." § 305.

Proposition 227 thus treats each and every LEP student across California, irrespective of her specific strengths and weaknesses, or of local circumstances and resources, as essentially fungible, and subjects them to its "cookie-cutter," assembly-line educational vision. Moreover, it makes the extraordinary and unsupported assumption that one year spent in its novel "immersion" program, and one year alone, will allow the normal LEP student to acquire a level of English competency that will enable her to succeed in English-language classrooms -- wholly without regard for her age, grade, primary language skill level, and her numerous other educational characteristics. It also ignores the local circumstances and needs of each school district.

Proposition 227 nominally provides that parents and guardians may, under highly limited circumstances, apply for waivers to exempt their child from the "immersion" program and to receive LEP instruction according to "generally recognized educational methodologies permitted by law." §§ 310-11. However, as discussed in greater detail below (See IV.A.3), these "parental exceptions" are not available to the vast majority of LEP students, and have been so structured as to make their promise an illusion. Moreover, it vests broad and unguided discretion in educational staff and administrators in deciding whether to grant such waivers. §§ 311(b), 311(c). This requirement is wholly unprecedented: No other class of children is required to obtain a discretionary "waiver" under the California Education Code before they may receive an individualized assessment and have their particular needs addressed. Further, as discussed in greater detail below, see section IV.A.3, these "parental exceptions" have been so structured as to make their promise an illusion.

To discourage deviations from the norms it establishes, Proposition 227 creates a private right of action against educational staff in their personal capacity for their alleged failure to comply with its terms:

If a California school child has been denied the option of an English language instructional curriculum in public school, the child's parent or legal guardian shall have legal standing to sue for enforcement of the provisions of this statute, and if successful shall be awarded normal and customary attorney's fees and actual damages . . . Any school board member or other elected official or public school teacher or administrator who willfully and repeatedly refuses to implement the terms of this statute . . . may be held personally liable for fees and actual damages by the child's parents or legal guardian.

§ 320. Finally, bypassing normal democratic processes, Proposition 227 inoculates itself against amendment by requiring that those seeking to modify it in any material way must pass a statewide initiative in order to do so:

The provisions of this act may be amended by a statute that becomes effective upon approval by the electorate or by a statute to further the act's purpose passed by a two-thirds vote of each house of the Legislature and signed by the Governor.

§ 335.

III. THE STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF

A preliminary injunction properly issues upon a showing that either: 1) plaintiffs can demonstrate probable success on the merits and the possibility of irreparable harm; or 2) that "serious" questions are raised by the complaint and the balance of hardships tips sharply in their favor. United States v. Odessa Union Warehouse Co-Op, 833 F.2d 172, 174 (9th Cir. 1987) ("[t]hese two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.").

To obtain preliminary relief, plaintiffs are required to demonstrate only a reasonable probability of success on the merits. Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991). If the balance of harm tips decidedly in favor of plaintiffs, then they "need not show as robust a likelihood of success on the merits[.]" State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1389 (9th Cir. 1988). Under such circumstances, a "fair chance of success on the merits" is sufficient to warrant preliminary injunctive relief. Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995).

Finally, in cases involving matters of significant public interest, such as the one now before the Court, the public interest is a factor that must be weighed heavily in determining the need for injunctive relief. Regents of the University of California v. ABC, Inc., 747 F.2d 511, 521 (9th Cir. 1984). As the Supreme Court has found, denying access to education

imposes a lifetime hardship on a discrete class of children not accountable for their disabling status . . . By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions.

Plyler v. Doe, 457 U.S. 202, 223 (1982). (13)

For the reasons set out in Sections IV and V, below, preliminary injunctive relief to enjoin Defendants' implementation of Proposition 227 is appropriate and should be granted.

IV. IRREPARABLE HARM WILL RESULT ABSENT PRELIMINARY RELIEF

The imposition of Proposition 227's unfounded, experimental methodology will cause long-term, indeed irremediable injury to the educational futures of California's LEP students. Moreover, in the shorter term, the nearly impossible struggle by school districts statewide to comply with Proposition 227 before the upcoming school year will throw them into financial and administrative crisis, impacting and undermining further still the services they will be able to provide.

These harms will be profound and irreparable in their effect. The balance of the hardships counsels strongly in favor of a preliminary injunction.

A. The Inherent Irrationality of Proposition 227 and Its Consequences.

1. The "One-Year-and-Out" Provision

The requirement that all LEP students be transferred into a mainstream classroom after just one year of English "immersion" not only disregards the individual needs-based assessment that has been the touchstone of California's approach toward LEP students, it also defies all educational research and experience. Simply put, though there may be isolated exceptions, 180 school days of English language development is grossly inadequate to give LEP students the academic English and English literacy skills needed to prepare them for mainstream academic classes.(14)

The simplistic premise of Proposition 227 that "[y]oung immigrant children can easily acquire full fluency in a new language such as English, if they are heavily exposed to that language in the classroom at an early age[,]" § 300, ignores the fact that LEP children come into our schools at all ages.(15) It is also "demonstrably false."(16) Professor Kenji Hakuta of Stanford, who recently chaired a committee of the National Research Council which reviewed the breadth of research bearing upon these children, concludes that "No evidence exists that a [structured immersion] program can be successful in teaching English in one year."(17) It is therefore hardly surprising that there are no school district programs within the state _ whether bilingual, ESL or immersion -- that categorically set a presumptive one-year limit on English language development for LEP students. Proposition 227's one-year-and-out mandate is contrary to the actual experience of California schools. (18)

Proposition 227 moreover ignores the critical point that school demands much more than casual, "playground" oral English proficiency. Even the English required for non-academic social interaction generally requires more than a year to acquire.(19) But more importantly, the level of English required in the classroom is more demanding, even at the lower grade levels. Professor Wong Fillmore of the University of California at Berkeley explains the process that children must undergo to achieve academic proficiency in English:

Few children can gain more than a shaky command even over this type of language in less than two years. For non-English speaking children to participate on a more or less equal academic and social footing with English speaking peers in the classroom, they must be competent in addition to this basic level of language, with language which is required for academic learning -- the abstract and conceptually complex aspects of linguistic knowledge involved in literacy development, logical reasoning and problem solving. This level of linguistic knowledge and functioning takes substantially longer to acquire even under the best of circumstances. (See Cummins, op. cit., Colliers and Thomas, Ramirez, et al.) This is true whatever the grade level, including those at the primary level. Children must have the prerequisite linguistic foundation to understand the concepts they are expected to acquire through the school's curriculum. . . . For these reasons, the research has shown that proficiency in academic English can not be attained by most children in less than 4 to 5 years under the best of conditions. It should also be noted that academic English requires not only proficiency in speaking and understanding, but also in reading and writing at the levels required for each grade level.(20) (Emphasis supplied.)

Moreover, to compete in regular academic curriculum, LEP students need not only oral proficiency, but English literacy, which cannot ordinarily be acquired until oral proficiency is developed.(21) Yet Proposition 227 completely ignores the need for English literacy. The terms "fluency" and "proficiency," which commonly denote oral fluency rather than literacy, permeate the Act, but without concomitant mention of literacy. The terms of Proposition 227 implicitly acknowledge its low expectations by requiring merely "a good working knowledge of English", § 305, at the end of the one-year immersion program -- far short of the academic English and literacy skills required for full participation in academic curricular classes.

The consequences of premature removal from even a proven English acquisition program are both predictable and calamitous. One superintendent observes: "For most LEP students 180 days, only a school year, will ill-prepare them for a mainstream English program. These students will not only fall behind their English-only peers in reading and writing but also in their other classes, due to their low level of English comprehension. If the LEP students fall behind their first year in mainstream classes, they will only fall further behind the next year."(22) Under these circumstances, "the limited English proficient child can be anticipated to flounder, become disengaged and ultimately become at extra risk of dropping out, being expelled, or worse. . . . There is little hope for children being placed in such a situation."(23)

2. The Denial of Equal Access to the Curriculum

Proposition 227's further requirement that instruction in the immersion program be "nearly all" in English will exacerbate the Proposition's harm upon LEP students. Not only will they be ill-prepared in terms of English proficiency and literacy at the end of the one year immersion program, they will unavoidably be behind academically as well. The Proposition's virtual exclusion of meaningful primary language instruction(24) effectively insures that LEP students will have limited, if any, academic instruction during the immersion program. (25) The obvious consequences of an English-only instructional program are described by Dr. Wong Fillmore:

How are teachers to teach the school's curriculum to children who do not understand the medium of instruction? The usual solution is to reduce the content ordinarily covered and to simplify the language used to impart the curriculum to the barest essentials. Hence, neither the content nor the language used in such classes are at appropriate levels for the students. The resultant "dumbing down" of the language and content means that students do not get access either to the language or to the curriculum they should be learning in school, whatever their grade level.(26)

The consequences of entering mainstream academic classes with both an English language and academic deficit are long-term in nature. Education is a continuing process, building upon the foundation of that previously learned. As Dr. Wong Fillmore explains, "If they do not understand the language well enough to learn in the second grade, what is lost is more than the curricular content of the second grade. They will not have the background knowledge presupposed by the content of the third grade, and so on."(27) And as discussed in greater detail below, LEP students inadequately prepared for regular curricular classes will face the inevitable consequence of either being retained at grade level or tracked into remedial academic classes, consequences which experience has proven to have a devastating impact. (See, e.g., Section V.C. below.)

3. The Replacement of Individual Assessments of Need with a Prescriptive, "One-Size-Fits-All" Program

As previously discussed, Proposition 227 imposes a single instructional program on 1.4 million LEP students in California, in total disregard of variations in their current English proficiencies, their age, maturity, primary language skills, primary language literacy, home-country schooling, learning styles or learning rates. It simplistically presumes that all LEP children should be able to transition to a mainstream classroom after a year of "sheltered English immersion." Even if it is assumed that some LEP students might succeed under Proposition 227's immersion program, however, it is clear that it is neither adequate nor appropriate for most, and certainly not for all.

If there is a central tenet in a successful education program, it is that "each child and each situation require the teacher to be able to adjust a program to fit the needs of the child."(28) "[A]ll children have different needs and . . . a given child has different needs at different phases of his educational and linguistic development. Thus it is central [for districts] to evaluate children and remain flexible to adjusting their program to fit differing circumstances."(29) These individual variations must be taken into account in sculpting a successful program that addresses the needs of each student. Thus, for instance, while a sheltered English program may be appropriate for an LEP student with some basic English proficiency who is approaching transition to mainstream classes, it is not appropriate to the newcomer who starts with no knowledge of English at all.(30) In forbidding this flexibility and individual tailoring, Proposition 227 dooms an intolerable number of LEP students to under-achievement and irremediable education deficits.(31)

Equally disturbing is that Proposition 227 will abruptly change the educational programs LEP students are currently participating in. Superintendent Michael expressed particular concern for his large migrant student population also identified as LEP. Continuity is essential in serving the special needs of these children. According to Superintendent Michael, this sudden change in program will "only exacerbate the disruption they already encounter in their education as a result of their migrant status and will undermine our efforts to address their unique needs."(32)

Superintendent Kirschenbaum voices his concern that changing the program midstream as a result of Proposition 227 will not only have "educational implications, but psychological, social and emotional" implications for his students.(33) Dr. Rosa Apodaca, director of LEP student programs for the San Francisco Unified School District, cautions that such a change, midstream, can cause a great deal of confusion for students which in turn will impede their learning process. According to her, LEP students enrolled in bilingual programs will be especially impacted:

Students will be especially alarmed if they are removed from a bilingual environment in which his or her primary language is freely used and encouraged by both teacher and students ton one in which English is the language of instruction. Students will simply not understand the change. They will feel frustrated and confused and be made to feel as if they had done something wrong.(34)

Proposition 227 will cause a total disruption in the learning process for the State's LEP students, students who can ill afford such disruption.

The fact that Proposition 227 contains provisions for parental waivers does not cure these fundamental defects.(35) The purported parental exceptions are a "cynical illusion."(36) The first exception is for those who already know English, § 311(a), hardly an exception available to the parent of a LEP child. The second exception is available only to those above ten years of age, and is available only if school officials believe that an alternative course of instruction would assist with the "rapid acquisition of basic English." § 311(b). Thus, failure to grasp the curriculum in an all-English classroom is not a basis for an exception. The final "exception" for children with "special needs" appears to apply only to children with disabilities who are entitled to special protection under disabilities laws.(37) § 311(c). Even if that exception is not so restricted, however, it is illusory in practice inasmuch as it can only be invoked after a child has been in "immersion" for "not less than thirty days during that school year[.]" Id. At that point, movement of the child is highly undesirable. As Santiago Wood, Superintendent of the Alum Rock Union Elementary School District in San Jose, observes, "[A] change in placement after 30 school days is not one that is educationally or administratively feasible. . . . Clearly, most students will be forced to endure [an inappropriate] placement due to these factors."(38) The exception thus creates a "Hobson's choice of two educationally inappropriate decisions: [we] could either pull a child out of a program and disrupt the child's education after more than one-sixth of the school year will have elapsed, or [we] can leave the child in an inappropriate [i.e., Proposition 227] program."(39) Finally, even if the student satisfies all requirements, including the demonstration of "special needs," the district is never required to grant a waiver. The decision is, instead, left entirely to the district's discretion. § 311.

Moreover, nearly all parents of LEP students are immigrants, many of whom have limited education and financial resources and are likely to feel intimidated by governmental authorities. These parents are highly unlikely to invoke this administrative process.(40) Superintendent James Michael of the Alisal Union School District, a district with a large migrant student population, describes the obvious barriers facing immigrant parents to the waiver process:

The waiver provisions of Proposition 227 require a complicated waiver process for immigrant parents not familiar with the U.S. school system and not proficient in English skills to provide a written waiver request. Many of our parents work several jobs, work long, backbreaking hours in the fields, do not have easy access to transportation, do not have easy access to child care, have little education, are not literate, and face the daily stress and toil stemming from their low-income status. It is highly unlikely that these parents will be able to avail themselves of the complicated waiver process detailed in Proposition 227.(41)

More fundamentally, the necessity of obtaining a parental waiver does not permit the schools and local districts to take affirmative steps to ensure, as they must, that each child receives an appropriate instructional program. Instead, Proposition 227 impermissibly shifts the burden of providing equal educational opportunity to LEP students away from schools and onto their parents.(42)

4. Exclusion of Parental Participation

Proposition 227's English-only instructional mandate will have the further impact of limiting the participation of the parents of LEP students in the educational program of their children. This, in turn, will have a direct adverse impact on the academic achievement of these children.

Bilingual education programs have played a critical role in increasing immigrant parent involvement in the schools, and in facilitating the involvement of the parents of LEP students directly in the classroom. Because the parents of LEP students often are themselves not proficient in English, they find it difficult to participate in the school community. Research shows that immigrant parent involvement is only likely when a child is in a bilingual program.(43)

According to Bruce McDaniel, the Superintendent of Lennox Elementary School District, "language is the key" to facilitating meaningful immigrant parent involvement in his district. The existence of bilingual education programs allows the parents of his LEP students to become directly involved in a positive way in the classroom because language is not a barrier to their participation:

Regardless of the language, all parents can and should play a critical role [in] literacy development of their children. Parents read to their children, they model a love for books, they teach their children concepts about print, tracking print, letter and work definition, and initial writing. The learning of these skills isn't language specific, and all of these skills can easily transfer from one language to another. Thus, parents who are literate in languages other than English can still play a very valuable role in educating their children, while, they are learning English.(44)

Parents of the Plaintiff representatives confirm that they have been able to help their children with homework, to read to their children, to volunteer in the classroom because their children have been enrolled in bilingual education programs and, therefore language was not a barrier to their participation.(45) One parent aptly describes this involvement and what Proposition 227 would eliminate:

I help my son with his reading by taking him to the library and getting books so that we both can read together in Spanish. My wife has volunteered her time in my son's classroom and this has helped us both understand how my son is doing and how we can best help him at home with his homework. We are able to help him because his lessons are in Spanish. If he was placed in an English only classroom we would not be able to help him because we don't speak English.(46)

Bilingual teachers also know the value of parental involvement in their classrooms, the role that bilingual education has played in facilitating this involvement and how Proposition 227 will undermine what one teacher describes as her students' "strongest bases of support: their parents." According to Maria Estela Mora, the elimination of bilingual education would mean not simply that her students would no longer be able to ask their parents who speak little English for help with their homework assignments or school projects. Indeed, the damage would be far more profound:

Proposition 227 will break down the bridge that we have strived for so many years to build between home and school. By giving the language they speak a negative connotation, this new law will make these children feel inferior. It will contribute to changing LEP children's positive perceptions of themselves and will very likely impair their relationships with their families.(47)

Other teachers(48) and school administrators(49) concur that Proposition 227 will drive a great wedge between the schools, the parents, and their children.

5. Administrative Chaos

Unless Proposition 227 is enjoined, school districts will be faced with the insurmountable task of immediately dismantling existing LEP programs -- some of which have been developed and implemented for decades -- and implementing an entirely new, untested program, pursuant to the unworkable constraints of a 60-day implementation mandate. Such a mandate will result in total chaos and upheaval, is impossible to fulfill, and, most importantly, is not educationally sound. More than simple administrative inconvenience, school administrators will be forced to abandon all acceptable school administration practices and to attempt to implement an untried program without proper planning, curriculum, basic instructional materials, or trained teachers. Furthermore, the costs of dismantling present programs and implementing Proposition 227 will be astronomical, and simply not within the budgetary means of school districts already strapped for funds. All of this will have a huge negative impact on the very children whose interests Proposition 227 claims to advance.

Superintendent Bernard J. Korenstein echoes the views of other school administrators about the unreasonable constraints imposed by Proposition 227's 60-day mandate:

Proposition 227 subjects Oxnard School District to an enforced structure that would cause educational upheaval in our district and massive harm to our students. The requirement to implement after 60 days . . ignores organizational theory and erroneously equates a radical and systemic change in the delivery of instruction to the ease of replacing one textbook with another. The proposition further does not address distinctive community needs. With a growing school population and a shortage of classrooms, Oxnard must operate all schools on a year-round basis. . . . It is unfeasible to end bilingual education on a Friday and implement an ESL Immersion Program on the following Monday in over 240 classrooms. With half of the district, over 7,000 students, currently enrolled in a transitional bilingual program, implementation within the mandated 60 days is impossible. A sound, effective instructional program demands time for planning, development of curriculum, purchase of materials, and training of staff. Proposition 227 denies this necessary time.(50)

Dr. Waldemar Rojas, Superintendent of the San Francisco Unified School District, confirms that the schools' inability adequately to prepare for Proposition 227's implementation will deny their students appropriate instruction:

It is impossible to put a quality program for 20,000 [San Francisco LEP] students in place by the start of school year 1998-99. The students would suffer greatly and it is not possible to do even if money were no object. Curriculum design, developing standards, selecting books to accompany the curriculum constitutes a two year process at best. It is also a sequential process, not a simultaneous one. Once the standards are developed, the curriculum is designed. Upon completion of the curriculum, the specifications for books and materials are developed. Those specifications are put out for bid. Once the bids are made, the teachers review the books and materials and select from all that is available. Their recommendations comes to me then to the Board of Education. Once the Board approves the selection, the order is placed. The orders usually take eight to twelve weeks for delivery. Once materials arrive, the training of the teachers on how to use the books begins. This is typically a year-long process even when it is a focused activity.(51)

The waste of educational resources compelled by Proposition 227 is graphically illustrated in the area of instructional materials. Districts which have implemented bilingual education programs presently have the full complement of basic core curriculum materials in science, math, social studies and language arts, in the primary language of their students (e.g., Spanish) for each of their bilingual classrooms. Under Proposition 227, these materials will have to be "mothballed" and the cost of replacement will be astronomical, costs which simply cannot be met.(52) What is more, even if districts could muster the fiscal and administrative resource necessary to select and order new materials, there are no curriculum materials presently in existence that are designed to support Proposition 227's novel and radical one-year "immersion" program.(53)

Proposition 227 will create additional problems with respect to teacher training and qualifications. Its 60-day stricture renders school districts unable to ensure that teachers who staff Proposition 227 classrooms will be qualified to do so. Because Proposition 227's one-year limit on English language development will place ill-prepared LEP students prematurely into mainstream classrooms, teachers of regular curriculum will be faced with addressing the needs of students saddled with both English and academic deficits -- a task for which they are simply not trained.(54) All "mainstream" teachers will require retraining in order to work with LEP students, most of whom will be unable to function at grade level in English.(55)

Finally, rather than affording districts the flexibility needed to respond to local conditions and individual needs, Proposition 227's waiver provisions only compound the organizational nightmare facing school administrators. For example, one administrator concludes that his district will be faced with total chaos in terms of general planning, classroom configurations, instructional materials distribution, and teacher assignment as a result of the waiver process.(56) Another predicts that "[t]he confusion, exasperation, and disruption to parents, students, staff, and programs will be immense."(57)

In both the short and long term, Proposition 227 will occasion massive and irreparable harm. As the declarations from both large and small districts bear out, an appropriate program cannot be implemented in the mandated timeframe. The ensuing chaos will be reflected in the quality of the education provided to fully 25% of California's school children. In the long run, Proposition 227 will ensure that LEP children will not achieve English proficiency, not acquire knowledge available to others as a matter of right and, ultimately, not become contributing members of society. All of us will be irremediably harmed by this.

V. PLAINTIFFS' CLAIMS ARE MERITORIOUS AND RAISE "SERIOUS QUESTIONS" CONCERNING THE LEGALITY OF PROPOSITION 227

For the reasons that follow, Plaintiffs' claims for relief present serious questions about the legality of Proposition 227, and are likely to succeed on their merits.

A. PROPOSITION 227 WILL INEVITABLY RESULT IN STATE AND LOCAL VIOLATIONS OF THE EQUAL EDUCATIONAL OPPORTUNITIES ACT.

In 1974, Congress amended the Equal Educational Opportunities Act, 20 U.S.C. § 1701 et seq. ("EEOA"), to add § 1703(f) thereto. § 1703(f) imposes an obligation on educational agencies "to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs." Local educational agencies share this obligation with state educational agencies. "[F]ederal law imposes requirements on the State Agency to ensure that plaintiffs' language deficiencies are addressed." Idaho Migrant Council v. Board of Educ., 647 F. 2d 69, 71 (9th Cir. 1981); see also Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1037 (7th Cir. 1987) ("the obligations of § 1703(f) are imposed on the states and their agencies"). Thus, state and local districts alike must take "appropriate action" under the EEOA.(58)

"Appropriate action" under the EEOA must address two basic, fundamental needs of LEP students: 1) the need to acquire sufficient academic English skills to be able to participate equally with students who enter school with an English language background; and 2) the need to acquire the substantive curricular knowledge that schools are imparting to their English-speaking peers so that they may progress and compete equally with those peers. Castaneda v. Pickard, 648 F.2d 989, 1011 (5th Cir. 1981); see also Gomez, 811 F.2d at 1041; Teresa P. v. Berkeley Unified Sch. Dist., 724 F. Supp. 698, 715 (N.D. Cal. 1989).

If implemented, Proposition 227 will require the State to turn its back on its obligation under the EEOA to ensure that these dual needs are met. It will also make it impossible for the State's educational agencies and local school districts to comply with the substantive obligations the EEOA places upon them.

1. Proposition 227 Will Force State Educational Agencies To Violate The Responsibilities Squarely Placed Upon Them By The EEOA.

Proposition 227 would result in an unprecedented, wholesale abdication by the State of California of its duty under the EEOA to guarantee equal educational opportunity to its LEP students. Worse than "benign" neglect(59) of their educational needs, this initiative in fact places the State in the previously-unimaginable position of affirmatively impeding and preventing adequate attention to those needs. It conscripts the State's educational agencies (the State Board of Education and State Department of Education) -- which are charged by the EEOA to facilitate compliance with equal educational opportunity mandates -- to, instead, enforce an arbitrary and unsound ceiling on local school districts attempting to live up to those mandates. This rejection by the State of its enforcement obligations violates the EEOA on its face.

Where, as in California, the state takes on ultimate oversight responsibility of public education, the respective obligations of the state and of local school districts differ under section 1703(f) of the EEOA.(60) While the outer parameters of a state's EEOA obligations have yet to be judicially delineated, at a minimum it has an affirmative "obligation to supervise the local school districts to ensure compliance" and "to ensure that needs of students with limited English language proficiency are addressed." Idaho Migrant Council, 647 F.2d at 71. Accordingly, the State must establish and enforce adequate, uniform standards to secure such compliance. See Gomez, 811 F.2d at 1042 (state general guidelines must constitute "appropriate action" under EEOA). In effect, the State has an affirmative duty to facilitate and, ultimately, to ensure that local districts meet the needs of LEP students and provide them with equal educational opportunities. See Gomez, 811 F.2d at 1043.(61)

By establishing a mandatory and exclusive yet inadequate instructional program for LEP students, irrespective of their individual needs, and enforcing that program through an expansive personal liability provision, Proposition 227 turns on its head the State's fundamental obligations under the EEOA. Far from facilitating district compliance with the EEOA, Proposition 227 impedes it, and indeed forces districts into violating it. In doing so, it sweeps away numerous existing programs developed and implemented by local districts to meet the educational needs of LEP students, and prohibits all future services that would surpass the ceiling it imposes.(62) In place of these programs, it compels adherence to a program that is inappropriate and constrains school districts in their ability to make an inappropriate program right. In essence, Proposition 227 sets a maximum level of effort to address the needs of LEP students, above which no district may venture, regardless of educators' informed evaluation of the needs of the students. This is in direct conflict with the proper role of the State in fulfilling the responsibility it shares with local districts "to provide equal educational opportunities to their students." Gomez, 811 F.2d at 1041. At the very least, the State must "establish[ ] the minimums for the implementation of language remediation programs and enforc[e] those minimums[.]" Id. at 1043 (emphasis added); cf. Idaho Migrant Council, 647 F.2d at 71 (state power "to require minimum standards of instruction" demonstrates ability to comply with EEOA mandates). The difference between setting a minimum floor as a means of ensuring compliance, and imposing a maximum ceiling that eliminates programs best suited to provide equal educational opportunity, distinguishes a state that facilitates EEOA compliance from one that impedes it.(63)

The impediment posed by Proposition 227 impermissibly keeps the State from meeting its obligations under the EEOA with respect to both types of educational opportunities owed LEP students -- English language development and equal access to curriculum. First, with respect to language acquisition, under Proposition 227 the State permits only one program for LEP students, a "sheltered English immersion" program with no apparent precedent and no support in educational theory. The State also fixes an arbitrary and inadequate temporal limit on services to LEP students of one year.(64) Finally, the State also improperly imposes a mandatory exit criterion -- "a good working knowledge of English," § 305 -- that is both premature and inadequate.

The State's abandonment of its EEOA responsibilities is even more stark with regard to equal access to the curriculum. Proposition 227 wholly ignores the State's obligation under the EEOA, making no provision for equal curricular access anywhere within the initiative. Such a state vacuum in this area is legally intolerable. "State agencies cannot, in the guise of deferring to local conditions, completely delegate in practice their obligations under the EEOA." Gomez, 811 F.2d at 1043. Moreover, as explained above, this measure goes far beyond "no action," id. ("appropriate action" means more than "no action"), by setting up a program that neither formally includes nor practically permits adequate access to the curriculum during the period of instruction in English language development or thereafter.

In effect, then, Proposition 227 transforms a watchdog into a wolf. The State no longer oversees and guarantees that local districts comply with the EEOA. Its job is now the diametrically opposed one of enforcing an arbitrary and unsound upper limit on the educational services local districts may provide their LEP students, leaving them with no other means of responding either to "local circumstances and resources," Castañeda, 648 F.2d at 1009, or to the educational needs of individual LEP students. By expropriating the State's role and turning it on its head, Proposition 227 violates the EEOA. See Idaho Migrant Council, 647 F.2d at 71.

2. In Addition to Violating the State's Supervisory Duties, Proposition 227's Program is So Flawed That It Would Violate the EEOA Were It To Be Implemented By a Local School District.

In addition to forcing the State to renege on its obligations as an overseer of local district efforts to provide equal educational opportunities to LEP students, Proposition 227 also violates the EEOA if analyzed substantively as a program of direct education to LEP students.

The EEOA does not define "appropriate action," nor does it provide criteria to evaluate whether or not a State or local school district has taken such action. No decisions in this Circuit have established a legal framework for assessing whether or not a particular program satisfies this standard. The clearest statement to date of an analytical framework is set forth by the Fifth Circuit in Castañeda. Castañeda's framework, however, was developed as a means of assessing the adequacy of an local school district's LEP programs, not that of a state-level mandate such as that at issue here. "As the Seventh Circuit in Gomez [ ] noted, the Castaneda guidelines require fine tuning, but nonetheless provide a helpful analytic structure." Teresa P., 724 F. Supp at 713.

In Castañeda, the court devised a three-part test. First, "the court must examine carefully the evidence the record contains concerning the soundness of the educational theory or principles upon which the challenged program is based." 648 F.2d at 1009. This inquiry must assess the soundness of the educational approach based upon the two fundamental needs of English language acquisition and equal access to academic curriculum. Second, the court must determine if the program has a sound implementation plan with adequate resources, including teacher training and a plan in place to evaluate its program. Id at 1010. Finally, even if the program were to meet the first two requirements, it would be legally insufficient if the district did not in fact evaluate it and have a willingness and ability to change it if the evidence reflected the need for change. Id.

In analyzing the merits of a particular program administered by a local school district, Castaneda suggested that significant deference is owed the district's "genuine and good faith effort, consistent with local circumstances and resources, to remedy the language deficiencies of their students[.]" 648 F.2d at 1009. However, the factors that counsel for such deference are absent here.(65)

In any event, the wrongs of Proposition 227 cannot stand up to any standard, whether deferential or heightened.

a. The Program Prescribed Under Proposition 227 Is Not Based On a Sound Educational Theory for Assuring Either Sufficient English Language Acquisition And Literacy or Equal Access to the Curriculum.

i. Proposition 227's One-Year Limit on English Acquisition

No state or school district has ever tried to impose a presumptive one-year cut-off of services to LEP students. Before June 2, no educational agency had ever committed such an arbitrary and irrational act. Thus no court has ever examined such a draconian approach to educating LEP children. Courts have been extremely mindful of the need to have identification criteria that assure that all pupils in need receive those services. Thus in Keyes, the court ruled that the failure to identify "Lau C" children for programming constituted a violation of the EEOA. Keyes at 1518. Similarly, in Gomez, the court concluded that a state standard which "failed to provide local school districts with adequate and uniform guidelines for identifying and placing LEP children" constituted inappropriate action under the EEOA. Gomez at 1042-43. Similarly, the premature reclassification of LEP students constitutes a misidentification of these children as fully English proficient, and effectuates the same result as the one that concerned the Keyes and Gomez courts.

Proposition 227's presumptive one-year limit is also premised on the incorrect assumption that LEP children can gain English fluency, which necessarily includes English literacy skills "comparable to that of the average native speakers," Castaneda at 1011, within one year. As the declarations from plaintiffs' experts and school officials alike bear out, virtually no child is likely within a single year to be able to acquire the English language skills permitting her to compete equally with her English-speaking peers in a mainstream English language classroom.(66)

Proposition 227 is educationally unsound in that it sets the expectations for LEP children both too high and too low. Its expectations are too high because there is absolutely no credible educational research suggesting that LEP children can acquire the level of English fluency "required for academic learning -- the abstract and conceptually complex aspects of linguistic knowledge involved in literacy development, logical reasoning and problem-solving in one year." (App. I, Exh. D, Wong Fillmore Dec., p. 5, ¶ 6.) Its expectations are too low because no such research indicates that such a minimal level of English fluency -- "a good working knowledge of English" -- can prepare limited English proficient children to compete with their English-speaking peers in academic, mainstream English classes. Setting any redesignation criteria on the basis of a "folk analysis that has no basis in research-based category distinctions . . . will only lead to inappropriate placement of younger learners in mainstream classes . . . [and] greatly increase the nimber of language minority children deprived of the chance to acquire literacy during the primary grades." (App. I, Exh. J, Snow Dec., pp. 3-4, ¶ 8.)(67)

ii. Proposition 227's Denial of Access to Curriculum

Section 1703(f) of 20 U.S.C. imposes an obligation on an educational agency to address the curricular needs of a student as well as the need to learn English. As stated in Casteneda, "We understand § 1703(f) to impose on educational agencies not only an obligation to overcome the direct obstacles to learning that the language barrier itself poses, but also a duty to provide limited English proficient speaking ability students with assistance in other areas of the curriculum where their equal participation may be impaired because of deficits incurred during participation in an agency's language remediation program." Id. at 1011.

It is, frankly, unclear whether any academic content is envisioned under Proposition 227. As already noted, its language strongly suggests otherwise.(68) Even if some curricular access is intended, however, a program that provides instruction only in English to children who understand no English will clearly not leave them with a grasp of the curriculum equal to that of their grade-level, English-speaking peers.(69) Because the students in such a program cannot understand English or have only limited English comprehension, any academic instruction they may receive will progress far more slowly and be significantly "watered down" when compared to that afforded others.(70)

Moreover, even where, as with Proposition 227, an LEP instructional program chooses to focus on English language skills first, it must later provide students with compensatory and supplemental education to remedy curricular deficiencies in other areas that may develop during that period. Castaneda at 1011. One searches in vain to find any such compensatory and supplemental program here. The outright absence of any program focused on academic achievement for these children flies in the face of sound educational research and constitues an abdication of the state's role under the EEOA.

b. The Program Prescribed by Proposition 227 Fails to Assure Effective Implementation of Its Educational Theory, and Its Adequate Evaluation.

i. Proposition 227 Fails to Ensure that Teachers are Qualified To Teach Under the New Program.

A key implementation issue in any language remediation program is whether LEP children will be taught by adequately trained teachers. In Castaneda, the Fifth Circuit reversed and remanded on the basis that the school district had violated its EEOA obligations by failing to employ trained teachers. As in any educational program, qualified teachers are a critical component in the success of a language remediation program. Castaneda, 648 F.2d at 1013. See also, Keyes, 576 F.Supp. at 1517.

Proposition 227 is fatally deficient in establishing teaching standards. Its sole reference to such standards is that teaching personnel "possess a good knowledge of the English language." § 306(b). As discussed above (see section IV.A.5), teacher training for both the implementation of the new one year immersion program and for teachers of mainstream academic classes faced with the influs of LEP students is notably absent under Proposition 227. Tellingly, it requires no more, when much more is required. (See, e.g., App. I, Exh. K, A. Stack Dec., Declaration of Donna Christian.)

ii. Proposition 227 Fails to Establish an Evaluation System and Eliminates The Capacity for Change.

In Castaneda, the court concluded that testing on the part of school districts was necessary to meet their EEOA obligations, and concluded:

Valid testing of students' progress in these areas is, we believe, essential to measure the adequacy of a language remediation program. The progress of limited English speaking students in these other areas of the curriculum must be measured by means of a standardized test in their own language because no other device is adequate to determine their progress vis-à-vis that of their English speaking counterparts. . . . Only by measuring the actual progress of students in these areas during the language remediation program can it be determined that such irremediable deficiencies are not being incurred.

648 F.2d at 1014.

The requirement of an evaluation plan is intended to guarantee that school districts have the knowledge from which to make needed changes in their programs. Id at 1010. But even if Proposition 227 prescribed such a system -- and it does not -- it would not save the initiative. Proposition 227 prescribes one type of program, and one only; it gives school districts no leeway to change their programs, even assuming the presence of adverse evaluation findings. This straitjacket to programmatic change places Proposition 227 in conflict not only with the EEOA, but with sound educational practice as well.

c. The Program Prescribed by Proposition 227 Fails to Assure Flexibility in Response to Evaluative Outcomes.

Even if Proposition 227's prescribed program were to pass muster as a sound educational approach, it fails the second and third prongs of the Castaneda analysis.

i. Proposition 227 Fails to Assess the Individual Needs of Each Student and Permit Tailoring of Specific Programs to Meet Those Needs.

The EEOA guarantees to each individual LEP student a right to "appropriate action." 20 U.S.C. §§ 1703(f). "As long as there is at least one person arguably denied equal educational opportunity," the EEOA "mandates remedial assistance." See Heavy Runner v. Bremner, 522 F. Supp. 162, 164 (D. Mont. 1981) (quoting United States v. School Dist. of Ferndale, 577 F.2d 1339, 1345 (6th Cir. 1978)). Consistent with this, California has long provided individualized assessments for each LEP student, and has required schools to tailor their educational programs to the needs of the individual student.(71)

Proposition 227 represents the antithesis of the focus on the individual LEP student which suffuses the EEOA. The initiative's "one-size-fits-all" program not only overrides the general programmatic choices of local schools and school districts; it deprives them of the individualized flexibility they must have to address the specific needs of each individual LEP student, whether those needs are in learning English or in academic subjects. Within the population of LEP students entitled to "appropriate action" under the EEOA, there are huge variations with respect to not only degree of current English oral proficiency, but also as to age, maturity, primary language background, literacy in primary language and in English, and learning ability -- just a few of the factors that inform the choice of a particular educational program. Proposition 227 disregards these variations, instead focusing solely on the student's "degree of English fluency" in organizing "sheltered English immersion" classes, and specifying that its untested theory be ensconced as the method of instruction. § 305.(72) Schools cannot so abdicate their responsibility under the EEOA to ensure that each individual LEP student be given an equal educational opportunity given her own, unique needs.

3. Conclusion

Regardless of how Proposition 227 is analyzed, it cannot satisfy the obligations placed upon it by the EEOA. It reverses the State's proper role as a supervisor and guarantor of compliance, converting it into an enforcer of an arbitrary ceiling on educational services that impedes, rather than facilitates, compliance with the EEOA. Substantively evaluated as a prescriptive educational program, Proposition 227 fails to provide the requisite services to LEP students through an adequate instructional theory, plan of implementation, and evaluative system. Plaintiffs are likely to prevail on their claim that Proposition 227 will compel the State to violate the EEOA.

B. PROPOSITION 227 ALSO VIOLATES THE SUPREMACY CLAUSE BY CREATING AN OBSTACLE TO IMPLEMENTATION OF THE EEOA AND VIOLATING CONGRESSIONAL POLICY FAVORING PRIMARY LANGUAGE INSTRUCTION.

Because it impedes State and local compliance with the EEOA, and does so in part by foreclosing the Congressionally-favored option of primary language instruction, Proposition 227 violates the United States Constitution. Under the Supremacy Clause of the Constitution, Article VI, Cl. 2, "any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield." Free v. Bland, 369 U.S. 663, 666 (1962). Preemption of state law is "compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). Implied preemption may be found in two circumstances:

[1] where "compliance with both federal and state regulations is a physical impossibility," or [2] where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."

Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 89 (1992) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963) and Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). The latter is referred to as "obstacle" preemption, and is broader than the former. Rather than requiring that it be impossible to comply with both state and federal law (Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963)), it only requires that state law pose an obstacle to the full implementation of federal law, such as where its operation contravenes federal policy or "interferes with the methods by which the federal statute was designed to reach" Congress' goal. 505 U.S. at 103 (quoting International Paper Co. v. Ouellette, 479 U.S. 481, 494 (1987)). What is critical is the effect of the state law upon the operation of federal law. Perez v. Campbell, 402 U.S. 637, 651-52 (1971). Obstacle preemption applies where state law "chills" or burdens the effectuation of federal policy even where the effect is indirect.(73)

1. Proposition 227 Impedes Local School Districts in Their Efforts to Comply With Their Own Obligations Under the EEOA.

Proposition 227 constitutes an obstacle to the full enforcement of the EEOA by impeding local districts in satisfying their own obligations thereunder. As noted above, Proposition 227 bars each and every school district, irrespective of local circumstances and needs, from utilizing the most obvious and generally accepted options available to meet the needs of LEP students -- bilingual education(74) as well as a wide range of methodologies entailing more than one year of English language development and utilizing primary language assistance to ensure meaningful access to curriculum.(75) It thus renders it extremely difficult for local school districts to meet their dual obligations under the EEOA of both insuring English language development and preventing academic deficiencies, Castaneda v. Pickard, 648 F.2d 989, 1011, as well as to implement programmatic changes that may be required under the third prong of Castaneda. 648 F.2d at 1010.

Congress intended that local educational agencies -- which are independently charged by the EEOA to provide "appropriate action" and which may be sued for their failure to do so -- have a "substantial amount of latitude in choosing the programs and techniques they would use to meet their obligations under the EEOA" which are "consistent with local circumstances and resources." Castaneda, 648 F.2d at 1009. Proposition 227's sweeping proscriptions interfere with schools and school districts in their efforts to respond to local conditions and needs which vary widely from locality to locality (cf. United States v. Texas, 680 F.2d 356, 371 n.24 (recognizing "the differing problems and solutions which may in future be shown to exist in the many and diverse school districts of Texas")). Additionally, the personal liability provisions of Proposition 227 place districts on the horns of a dilemma -- having to choose between risking violation of either State or federal law. Proposition 227 thus imposes a substantial obstacle to the full enforcement of the EEOA.

2. Proposition 227 Impermissibly Bars the Congressionally-Favored Option of Primary Language Instruction.

In addition, Proposition 227 squarely contradicts Congress's objective of encouraging the use of primary language instruction in addressing the academic needs of LEP students and preserving that strategy as an option available to local school districts. Although some courts have held the EEOA does not categorically mandate bilingual education, Castaneda, 648 F.2d at 1009, Congress has expressly and repeatedly encouraged primary language instruction. It has authorized and re-authorized the Bilingual Education Act (Title VII of the Elementary and Secondary Education Amendments of 1967), which specifically encourages the development and implementation of model bilingual education programs in addressing the needs of LEP students by issuing federal grants to local school districts. In reauthorizing and expanding the Bilingual Education Act in 1974, Congress specifically found that the "primary means by which a child learns is through the use of such child's language and cultural heritage," that "large numbers of children of limited English-speaking ability have educational needs which can be met by the use of bilingual education methods and techniques," and that "children of limited English-speaking ability benefit through the fullest utilization of multiple language and cultural resources." Education Amendments of 1974, Pub. L. No. 93-380, § 702(a), 88 Stat. 484. Congress declared it to be the "policy of the United States, in order to establish equal educational opportunity for all children to encourage the establishment and operation, where appropriate, of educational programs using bilingual educational practices, techniques, and methods . . ." and thus specifically directed federal financial assistance to educational agencies to carry out such programs. Id.(76)

Proposition 227's prescribed program not only impedes local school districts from complying with the EEOA, it does so by barring them from implementing the "quality bilingual education programs," 20 U.S.C. § 7402(a)(9), that Congress specifically intended to encourage and preserve as an option to local districts. Proposition 227's removal of the option of primary language instruction stands in plain conflict with federal policy, and thereby runs afoul of the Supremacy Clause.(77)

C. PROPOSITION 227 VIOLATES TITLE VI BECAUSE IT IMPOSES AN UNJUSTIFIABLE DISPARATE IMPACT UPON NATIONAL ORIGIN MINORITIES BY DENYING THEM ACADEMIC INSTRUCTION ON A PAR WITH THEIR ENGLISH-FLUENT PEERS.

By denying LEP students meaningful access to academic curriculum during its "sheltered English immersion" program, and then shunting them prematurely into mainstream academic classrooms after just 180 days of English language development, Proposition 227 violates not only the EEOA but Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and its implementing regulations as well, because it imposes an unjustifiable disparate impact on national origin minorities in so doing.

Title VI's regulations, at 34 C.F.R. § 100.3(b)(2), prohibit recipients of federal financial assistance, including Defendants, from undertaking actions having an unjustifiable discriminatory effect or disparate impact on national origin minorities. Larry P. v. Riles, 793 F.2d 969, 981-82 (9th Cir. 1984); see also 34 C.F.R. § 100.3(b)(2) (U.S. Dept. of Education regulations); Guardians Ass'n v. Civil Serv. Comm'n of New York, 463 U.S. 582, 584 n.2 (1983). Disparate impact exists where "defendants' racially neutral practice detrimentally affects persons of a particular race to a greater extent than other races." Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1421 (11th Cir. 1985); see also Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 (1977). Defendants may only rebut a prima facie case of disparate impact by demonstrating that the challenged practice is justified by educational necessity. Larry P., 793 F.2d at 982; Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407, 1412 (11th Cir. 1993). Even so, plaintiffs can still prevail if there are less discriminatory alternatives that are equally effective in achieving educational goals. 997 F.2d at 1407.

1. Proposition 227's Instructional System Has A Disparate Impact On National Origin Minorities.

Proposition 227's prescribed one year English-only immersion program, which disregards the individually assessed needs of each LEP student, will have an adverse impact upon minority students in three respects. First, as demonstrated above, it fails to provide the vast majority LEP students with the English language skills they will need to compete and perform on a par with their grade-level, English-fluent peers. Second, also as already noted, it disproportionately denies minority LEP students meaningful access to the academic curriculum during its "sheltered English immersion" program. Third, it fails to provide for any remedial instruction to recoup the academic deficits incurred by them during that program, a problem exacerbated by the inadequate English language training they will have received; inevitably, LEP students in need will either receive no remedial instruction and fall behind due to persistent language deficiencies, or will receive inferior remedial instruction by being retained in grade or tracked into lower ability groups. Their educational prospects will be permanently damaged as a result.(78)

These adverse consequences fall solely, and inexorably, on minorities. Proposition 227's nglish learners" are, by definition and in practice, virtually all national origin minorities. In particular, Spanish-speaking Latinos and Asians who speak Vietnamese, Hmong, Cantonese, Pilipino, Khmer, Korean, Lao, and Mandarin comprise 95 percent of all LEP students. Exh. B to Ho Dec. (Educ. Demographics Unit, Public School Summary Statistics (1996-97)).

a. Proposition 227's "Immersion" Program Adversely Impacts Language Minorities By Denying Them The English Language Development Necessary for Them To Compete With Their English-Fluent Peers.

Proposition 227's "immersion" program will fail to provide LEP students English proficiency and literacy necessary to obtain an equal and meaningful opportunity to participate in a grade-level academic environment. It is well established that public school systems which fail to do so are liable under Title VI. See, e.g., Lau v. Nichols, 414 U.S. 563, 566-68 (1974) (district's failure to provide monolingual Chinese-speaking students with adequate English language skills prior to placement in mainstream classrooms had discriminatory effect violating Title VI because it "denie[d] them a meaningful opportunity to participate in the educational program[.]"); Guardians Ass'n, 463 U.S. at 589, 590 n.11, 591, 615, 616, 643 (1983) (six Justices agreeing Lau was a discriminatory impact case under Title VI).

b. Proposition 227's Transitional Program Has A Disparate Impact on Minorities By Denying Them Academic Instruction Comparable to That Received By Their English-Fluent Peers.

Proposition 227 adversely impacts minority students because its one-year "sheltered immersion" program denies them academic instruction comparable to that received by their English-fluent peers. In Larry P., the Ninth Circuit held that IQ tests used to place students in "educable mentally retarded" (E.M.R.) classes had a disparate impact on African-Americans. The percentage of African-American students in E.M.R. was much higher than the percentage of white students because African-American students, as a whole, scored ten points lower on those tests. 793 F.2d at 982-83. The Ninth Circuit noted that the improper placement of African-American students in E.M.R. classes adversely affected them, in significant part because such classes de-emphasized academic skills. Id. at 983.

As previously demonstrated, the singular focus of Proposition 227's "immersion" program on English language instruction, its grouping of students solely on the basis of their English proficiency, and its encouragement of mixing students of different ages and language backgrounds, leaves little if any room for instruction in academic curriculum.(79) The academic deficit incurred even during this one year is educationally significant. All public school students are required to receive academic instruction in math, science, social studies, and other substantive academic subjects. Even in the primary grades, the curriculum contains a substantial amount of academic content beyond basic English language skills. App. I,. Exh. G, Hakuta Dec., p. 2, ¶ 3. Such instruction is a necessary foundation for learning in core subjects at later grade levels. App. I, Exh. D, Wong Fillmore Dec., p.4, ¶ 5. The failure of LEP students to acquire that foundation will set them far behind their grade-level peers. Id. It thus adversely impacts them in precisely the fashion prohibited by Title VI.

c. Proposition 227's Post-Transitional Phase Will Disparately Impact Minorities By Tracking Them Into Inferior Instruction.

Rather than working to ameliorate the academic deficits that it creates for LEP students during "immersion," Proposition 227 ignores them, allowing them to deepen. With just 180 days of English training, LEP students will be moved into mainstream academic classes to sink or swim amongst native English speakers. At best, they will have "a good working knowledge of English," § 305, not academic English and English literacy. Currently, there exist no remedial programs designed to address the needs of students who fall behind because of such an inadequate language immersion program that neglects curriculum content, and Proposition 227 provides for nothing in the way of such assistance. Burdened by both an English language and academic deficit, LEP students will either fall behind in mainstream classrooms or be placed in inferior remedial programs, with consequent long-term harms.(80) An educational practice has a disproportionate impact on minorities when it groups them in such lower-ability programs. See Larry P., 793 F.2d at 982-83; Georgia State Conference of Branches of NAACP, 775 F.2d at 1417.(81)

These deficits will likely be permanent for most LEP students. Instead of putting them on an equal footing with their English-fluent peers, the remedial instruction they are provided will most likely "be a watered-down version of the schooling received by their [grade level] peers." App. III, Exh. N, Welner Dec., p. 5, ¶ 12. Alternatively, the LEP students may be retained in the grade level at which they exited the immersion program, inevitably and dramatically increasing the likelihood of poor academic achievement and even attrition. App. I, Exh. I, Declaration of Russell Rumberger, p. 2, ¶ 4. See Lau, 414 U.S. at 568 (ability grouping to address language skill needs should not operate as "an educational deadend or permanent track").

2. Proposition 227's Denial of Academic Instruction to and Resulting Remedial Tracking of Minorities Is Not Justified By Educational Necessity.

To rebut this prima facie showing of adverse impact, Defendants must demonstrate that the challenged practice is necessary to achieve a legitimate educational purpose. See Larry P., 793 F.2d at 982 n.9; Elston, 997 F.2d at 1407 n.14, 1412. The State cannot satisfy this burden. The "immersion" program's denial of adequate English acquisition and equal access to academic curriculum would escape Title VI liability only if it were shown that all LEP students can in fact learn English sufficient to perform at grade level in a mainstream in one year but can not learn academic content at the same time. Sound educational research demonstrates exactly the opposite. App. 1, Exhs. G, H. Hakuta Dec., p. 3, ¶ 8; Lindholm Dec., p. 6, ¶ 15.

3. Less Discriminatory Alternatives Exist To Proposition 227's Denial of Academic Instruction to National Origin Minorities.

Even assuming arguendo that Proposition 227's educational necessity could be debated, Plaintiffs will still prevail because there exist far less discriminatory alternatives that are comparably effective in achieving its asserted educational goal of providing students with "a good working knowledge of English." § 305. Most obviously, permitting the continuation of individualized needs-based assessment by local school districts will permit local educators how best to speed each child's acquisition of English as well as prevent substantive academic deficits. As noted above, LEP students learn both English language skills and academic content in the core curriculum in many instructional programs now banned by Proposition 227. See App. 1, Exh. G, Hakuta Dec., p. 2, ¶¶ 6-7. Such programs have proven effective in both teaching students English and allowing them to keep pace with their grade level peers in other areas of the academic curriculum. Id.

4. Conclusion

Because the instructional system created by Proposition 227 mandates a sweeping and systematic reduction of services and denial of individualized assessment of needs, and in particular denies LEP students adequate English language acquisition and academic instruction during its transitional program, thereby resulting in academic and English language deficits and long-term tracking into inferior classes or retention in grade, it will have an unjustifiable disparate impact on national origin minority students. Moreover, even if it were justified by educational necessity, less discriminatory alternatives exist that would be equally or more effective in attaining its professed goals. Accordingly, Proposition 227 violates Title VI and the regulations promulgated thereunder.

D. PROPOSITION 227 VIOLATES THE EQUAL PROTECTION CLAUSE BY IMPEDING MINORITIES' FUNDAMENTAL RIGHT TO PARTICIPATE IN THE POLITICAL PROCESS

In addition to imposing a specific and highly prescriptive instructional program, Proposition 227 erects a nearly insurmountable political barrier to minorities advocating for alternative means of providing equal educational opportunity to LEP children. By requiring them to undertake the costly and arduous process of qualifying an initiative for the ballot and securing a majority statewide vote in order to obtain changes to Proposition 227, it virtually places all other instructional methodologies permanently out of reach to minority LEP students. This restructuring of the political process so as to selectively burden minorities' pursuit of equal educational opportunity triggers strict scrutiny. Because it is not narrowly tailored to serve a compelling state interest, Proposition 227 violates the constitutional guarantee of equal protection.

1. Proposition 227 Triggers Strict Scrutiny By Reallocating Political Authority in a Discriminatory Manner and Burdening Minorities' Future Pursuit of Equal Educational Opportunity

Because the Fourteenth Amendment "guarantees national origin minorities the right to full participation in the political life of the community," it bars political structures that "subtly distort[ ] governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation." Washington v. Seattle Sch. Dist. No. 1 ("Seattle"), 458 U.S. 457, 467 (1982). The majority may not allocate governmental power non-neutrally in a way that "'mak[es] it more difficult for certain racial and religious minorities to achieve legislation that is in their interest.'" Id. at 470 (citations omitted; alteration in original). Thus, laws specifically targeting a program that "inures primarily to the benefit of the minority, and is designed for that purpose," burdening the right of minority groups to seek "equal treatment," are subject to strict scrutiny. Id. at 472; Coalition for Economic Equity v. Wilson ("CEE"), 110 F.3d 1431, 1444-45 (9th Cir.), cert. denied, __ U.S. __, 118 S.Ct. 397 (1997).(82)

The Supreme Court has articulated this doctrine in two undisturbed decisions, Seattle and Hunter v. Erickson, 393 U.S. 385 (1969). In Hunter, the voters of Akron, Ohio, in response to the city council's enactment of a fair housing ordinance, amended the city charter to require that ordinances regulating real estate transactions on the basis of race, color, and national origin be enacted only by majority vote of the electorate. 393 U.S. at 387. This elevated the racial aspect of the city's housing regulatory power to a higher level of decision-making. The Court held this political restructuring unconstitutional because it discriminated "between those groups who sought the law's protection against racial, religious, or ancestral discriminations . . . and those who sought to regulate real property transactions in the pursuit of other ends." Id. at 390. The former had to secure voter approval, which "obviously made it substantially more difficult to secure enactment of ordinances[.]" Id.

Similarly, in Seattle, the Court invalidated a statewide initiative that removed racial busing from the control of local school districts and shifted it to a higher level of decision-making. Seattle School District No. 1 had voluntarily adopted a racial integration plan that included pupil reassignment and busing. In response, the initiative prohibited school districts from requiring students to attend a school other than those closest to them. The initiative, however, listed a number of exceptions that, taken together, permitted busing and reassignment for any educational purpose except racial integration. See Seattle, 458 U.S. at 463. While the initiative nowhere mentioned race, the Court had "little doubt that the initiative was effectively drawn for racial purposes." Id. at 471. The Court found that the initiative was enacted "'because of,' not merely 'in spite of,' its adverse effects upon' busing for integration[,]" which was designed to benefit minorities. Id. The Court, therefore, held that the reallocation of political power had an impermissible "racial focus." Id. at 474.

Under Hunter and Seattle, strict scrutiny applies where: (1) government restructures the political process by removing decision-making in a particular area to a more remote level; and (2) the restructuring has a non-neutral "racial focus" in removing only decision-making related to a program that "inures primarily to the benefit of the minority, and is designed for that purpose." Id. at 472.

a. Proposition 227 Removes Political Authority Over Programs Designed to Provide Equal Educational Opportunity to National Origin Minorities to the Most Remote Level of Decision Making

Under the California Constitution, a statute enacted by initiative may only be amended or repealed by another voter-approved statute unless the initial initiative provides otherwise. See Cal. Const. art. II, § 10. While Proposition 227 does permit amendment by an extraordinary two-thirds vote of the Legislature and signature of the Governor, such changes must "further the act's purpose[.]" § 335. Thus, minority parents interested in pursuing equal educational opportunity for their LEP children through programmatic options that differ from the initiative's prescribed methodology face virtually the highest hurdle possible in California's political structure.(83) Minorities advocating for LEP instructional options other than Proposition 227's one-year "immersion" program must now undertake the burdensome and expensive process of qualifying an initiative for the ballot and then persuading a majority of the electorate to approve it. It is no longer sufficient for them to seek the support of the Legislature, or to advocate before local school boards.

This specific, selective burden is unprecedented. By contrast, parents and others seeking changes in educational areas unrelated to LEP instruction may do so by securing a simple majority vote of the Legislature or, where policy is delegated by the State to school districts, merely by advocating before their school board. (84) See Dawson v. East Side Union High Sch. Dist., 28 Cal. App. 4th 998, 1017-19 (1994) (discussing school districts' broad control over instruction); Cal. Const. art. IX, § 14 (power of Legislature to grant school boards broad authority over local programs). The initiative process has, unsurprisingly, generally been free of highly prescriptive measures dictating the content of instructional programs, let alone instructional programs to secure equal educational opportunity, inasmuch as instructional methodology is a peculiarly complicated and difficult area to address through direct vote of the electorate. Proposition 227 thus stands as a unique barrier only to those concerned with the education of LEP students. It holds this area alone hostage to the electorate, leaving intact the traditional means of influencing outcomes in all other matters of educational policy.

b. Proposition 227 Targets Programs of Particular Interest to National Origin Minorities

Historically and today, the provision of equal educational opportunity to LEP students through tailored instructional programs has been an area of primary concern and benefit to national origin minorities.(85) By specifically and singularly targeting an area that "inures primarily to the benefit of the minority, and is designed for that purpose," Seattle, 458 U.S. at 472. Proposition 227 confines the minorities who benefit from such tailored programs to the restructured, restrictive political process described above.

First, in a very important sense, Proposition 227 goes even further than the laws struck down in Hunter and Seattle in singling out an area of minority interest. While the fair housing laws and busing for integration at issue in those cases may have benefited minorities in particular, they also directly affected others -- majority children who would be bussed to attend integrated schools, for example. Here, by contrast, Proposition 227's "immersion" program, which forbids primary language instruction, exclusively affects LEP students.

As already pointed out, these LEP students are, by definition and in actual fact, virtually all national origin minorities.(86) See Lau, 414 U.S. at 568 (children of "foreign ancestry" protected under national origin provisions of Title VI of 1964 Civil Rights Act); 20 U.S.C. § 1703(f) (failure to remedy language barriers of LEP children constitutes national origin discrimination under Congress's Fourteenth Amendment, § 5 powers). Proposition 227 thus falls squarely within the Hunter-Seattle doctrine, directly affecting an area of primary, if not nearly exclusive, concern of national origin minorities.

Of course, whether particular instructional programs for LEP students, including that mandated by Proposition 227, actually provide equal educational opportunity as required by law is irrelevant to the national origin focus of the initiative and its violation of equal protection. As long as constitutional equality imperatives do not clearly disfavor the programs barred,(87) cf. CEE, 110 F.3d at 1445-46 (no racial focus where legislation burdened is itself constitutionally disfavored), what matters is that Proposition 227 forecloses minorities' options in the area of equal educational opportunity, and restructures the future political process to embed its single anointed option of "immersion" to the preclusion of all others.

Nor does the policy preference of a majority of voters statewide, nor even the preference of a majority of minorities at any given time, nor any other assessment or conclusion as to what would benefit minorities, have any bearing on the equal protection question. In Seattle, the Court noted the controversy surrounding integrative busing, and acknowledged that both whites and blacks were on each side of the busing issue and that both groups might well benefit from school integration. The Court concluded, however, that such policy controversies must be resolved through a neutral political process that is fair to minorities. It found that "[f]or present purposes, it is enough that minorities may consider busing for integration to be 'legislation that is in their interest.'" 458 U.S. at 474 (emphasis added) (quoting Hunter, 393 U.S. at 395).

Similarly here, the national origin focus of Proposition 227 lies in its elimination of options that minorities may view as beneficial to them. Even if preferences among individual minority parents and others may vary as to particular LEP instructional methodologies, the fundamental right protected by the Hunter-Seattle doctrine is the right of minorities to exercise political choice and to advocate for laws and programs on the same footing as others. Proposition 227 denies that right by eliminating a wide range of well-established instructional methodologies designed for their benefit, including those favored by Congress and the courts. The initiative's national origin focus arises fully from its selective placing of options in that particular area out of political reach.(88)

Thus, Proposition 227 clearly has a "racial focus" within the meaning of Seattle. It purposefully pinpoints programs designed to inure primarily to the benefit of minorities and imposes unique and substantial barriers to the ability of those groups to exercise political choice in the area of LEP instruction. Its targeting of an area of particular concern to minorities presents a plain "racial focus" under the Hunter-Seattle doctrine. Proposition 227 must, therefore, survive strict scrutiny.

2. Proposition 227 Cannot Survive Strict Scrutiny Because It Is Not Narrowly Tailored to Achieve a Compelling State Interest

Because it is subject to strict scrutiny, Proposition 227 cannot survive unless it is narrowly tailored to serve a compelling state interest. As extensively explained previously, Defendants can point to no legitimate compelling interest to support the selection of the one model of LEP instruction mandated by the initiative. Neither can they offer such an interest to support the restructuring of the political process to foreclose all other educational strategies available to LEP students. Proposition 227 must therefore be struck down.

VI. CONCLUSION

Plaintiffs have demonstrated that their claims raise serious questions as to the legality of Proposition 227, if not a likelihood of ultimately prevailing of the merits of those claims. Moreover, they have amply shown the distinct possibility of irreparable injury to them and the class they represent if Proposition 227 is implemented, and also that the balance of hardships tips sharply in their favor. Plaintiffs' motion for a preliminary injunction should, therefore, be granted.

Dated: June 10, 1998 Respectfully submitted,

Antonia Hernández

Theresa Fay-Bustillos

Thomas Saenz

Silvia Argueta

Joseph Jaramillo

Maribel S. Medina

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND

Peter D. Roos

Deborah Escobedo

MULTICULTURAL EDUCATION, TRAINING AND ADVOCACY, INC.

John Affeldt

Mark Savage

Martha I. Jiménez

PUBLIC ADVOCATES, INC.

Edward M. Chen

ACLU FOUNDATION OF NORTHERN CALIFORNIA

Christopher Ho

Joannie C. Chang

Marielena Hincapié

The EMPLOYMENT LAW CENTER,

A Project of the LEGAL AID SOCIETY OF SAN FRANCISCO

Mark D. Rosenbaum

Rocio L. Cordoba, Of Counsel

ACLU FOUNDATION OF SOUTHERN CALIFORNIA

Stewart Kwoh

Julie Su

Bonnie Tang

ASIAN PACIFIC AMERICAN LEGAL CENTER

Lora Jo Foo

Frank Tse

ASIAN LAW CAUCUS, INC.

By: ____________________________________

DEBORAH ESCOBEDO

By: ____________________________________

CHRISTOPHER HO

By: ____________________________________

EDWARD M. CHEN

Attorneys for Plaintiffs

1. The text of Proposition 227, along with the ballot arguments of its proponents and opponents, appears attached to the Declaration of Christopher Ho, filed herewith, as Exhibit A.

2. Under California law before the passage of Proposition 227, LEP students were defined as "pupils who do not have the clearly developed English language skills of comprehension, speaking, reading, and writing necessary to receive instruction only in English at a level substantially equivalent to pupils of the same age or grade whose primary language is English." Cal. Educ. Code §§ 52161, 52163(m). This is generally construed to be compatible with the Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1701 et seq., which inter alia entitles all students with language barriers impeding their equal participation in a district's instructional program to "appropriate action" aimed at overcoming those barriers, see discussion infra at Section V.A.

3. 1997 Language Census Report (Form R30-LC), compiled by the Educational Demographics Unit, California Department of Education.

4. Enrollment in the state's public school bilingual education programs has always been voluntary. See former §52161.

5. In summary, these guidelines and mechanisms require the following: 1) that for each student there is a Home Language Survey (HLS) used to determine his/her primary language; 2) that each student with a home language other than English, as determined by the HLS, is assessed within 30 days of initial enrollment in English comprehension, speaking and reading and writing; and, 3) a further assessment occurs within 90 days of initial enrollment to determine primary language proficiency. Districts are obligated to use state authorized tests to determine comprehension and speaking, unless they have received a state authorized waiver. (See § 62002, and former §52164.

6. App. II, Exhs. B, H. Apodaca Dec., pp. 2-5, ¶¶ 15-20; Gil Dec., ¶¶ 5-6.

7. App. II, Exhs. B, H, A. Apodaca Dec., pp. 2-5, ¶¶ 15-20; Gil Dec., ¶¶ 5-6; Allen Dec., p.1, ¶ 3.

8. Unless noted, all subsequent section references are to the California Education Code.

9. See former § 52161 (stating general legislative purpose, inter alia, to offer academic instruction through the students' primary language "when necessary" to provide equal opportunity for academic achievement).

10. Recently, the State Board has modified its interpretation of § 52161 to permit school districts greater flexibility in meeting their responsibilities to LEP students. Nevertheless, LEP students who currently receive instruction through their primary language do so on the basis of a local determination that it is necessary for their children.

11. Such a process normally entails multiple criteria, including: 1) a teacher's evaluation of a student's English language proficiency and curriculum mastery; 2) an objective assessment of a student's English comprehension, speaking and writing skills; 3) parental opinion and consultation; and 4) objective data on a student's academic performance in English. (See § § 62002, 52164.6.)

12. Prior to Proposition 227, state law required that teachers who taught in bilingual classrooms and alternative programs possessed the requisite skills and knowledge necessary to appropriately carry out programs. The state had developed specialized credentials and alternative mechanisms for ensuring that teachers were in fact knowledgeable concerning the correct methodologies required to teach through the use of the primary language, and to teach English language development. See §§ 44253.1, 44253.2, 44253.10, 44344(a), (b).

13. Despite the literal language of Rule 65(c) of the Federal Rules of Civil Procedure, this Court clearly has the discretion to issue the preliminary relief sought without requiring Plaintiffs to provide security. See, e.g., People ex rel. Van de Kamp v. Tahoe Reg'l Planning Agency, 766 F.2d 1319, 1325, modified, 775 F.2d 998 (9th Cir. 1985); Orantes-Hernandez v. Smith, 541 F.Supp. 351, 385 n.42 (C.D.Cal. 1982). Among other factors, the public interest nature of the litigation, see, e.g., Pharmaceutical Soc'y of N.Y. v. New York State Dept. of Soc. Serv., 50 F.3d 1168, 1174 (2d Cir. 1995), or the fact that "there is no risk of monetary loss to the defendant," Frank's GMC Truck Ctr., Inc. v. General Motors Corp., 847 F.2d 100, 103 (3d Cir. 1988), have been found to justify the issuance of injunctive relief without the requirement of security.

14. That § 305 states that the "immersion" program is "not normally intended to exceed one year" does not provide any significant flexibility. By its terms, programs designed to exceed one year are prohibited, as are any that fail to exit more than a majority of their children. Moreover, the personal liability provisions of Proposition 227 will unquestionably chill teachers, administrators, and local school boards from permitting any significant or regular deviation from the one-year norm.

15. As stated above, 30%, or approximately 450,000 LEP students, are at the secondary level.

16. Appendix ("App.") I, Exhibit ("Exh.") J, Declaration of Prof. Catherine Snow, p. 1, ¶ 2.

17. App. I, Exh. G, Declaration of Prof. Kenji Hakuta, p. 6 ¶ 12.

18. Typical is the experience of Tim Allen, Director of Second Language Education in the San Diego Unified School District, who finds that children in his "sheltered" program take approximately 4-5 years before they are fully ready to participate in a mainstream program without support. App. II, Exh. A, Declaration of Tim Allen, pp. 2-3; ¶ 4. See App. II, Exh. B, Declaration of Rosa Apodaca, Director of LEP Programs for San Francisco Unified School District, p. 2, ¶ 8 (It "generally take[s] four to five years to achieve English language skills needed to succeed in a mainstream classroom."); App. II, Exh. H, Declaration of Libia S. Gil, Superintendent of Chula Vista Elementary School, p. 5, ¶ 11 ("[C]hildren learn at their own pace and...second language acquisition cannot be hastened by the imposition of an artificial one-year limit."); see also App. II, Exh. J, Declaration of Bernard J. Korenstein, Superintendent of Oxnard Elementary School District, p. 3, ¶ 6; App. II, Exh. O, Declaration of Roberto Moreno, Superintendent of Calexico Unified School District, p. 4, ¶ 6(d); App. II, Exh. D, Declaration of Les Crawford, Superintendent of Roseland Elementary School District, p. 2, ¶ 7.

19. App. I, Exh. D, Declaration of Prof. Lily Wong Fillmore, p. 5, ¶ 6.

20. App. I, Exh. D, Wong Fillmore Dec., p. 5. Proposition 227 also erroneously presumes that placing a child in an all-English environment will speed up the process of English language acquisition. Dr. Hakuta observes that "in fact it is far from clear that an all-English approach offers any greater opportunity in learning English than a properly implemented program that utilizes a child's native language." Indeed, the National Research Council concluded that "most of the reliable evidence" was to the contrary. App. I, Exh. G, Hakuta Dec.

21. App. I, Exh. J, Snow Dec., pp. 1-2, ¶ 2.

22. App. II, Exh. J, Korenstein Dec. at p. 3, ¶ 8.

23. App. II, Exh. A, Allen Dec., p. 3, ¶ 4. See also App. II, Exhs. D, O, B, H, K, G. Crawford Dec., p. 2, ¶ 7; Moreno Dec., p. 4, ¶ 6(c); Apodaca Dec., p. 5, ¶ 22; Gil Dec., p. 5, ¶ 11; Declaration of Nativo Lopez, p. 6, ¶ 11; Declaration of Norbert D. Genis, p. 7, ¶ 13: 1-6.

24. Again, the personal liability provisions in § 320 of the proposition will unavoidably deter teachers from any significant use of primary language instruction.

25. The overriding mandate of Proposition 227 is that all children in California public schools "shall be taught English by being taught in English." § 305. Numerous of its provisions underscore this narrow purpose. The chapter of the Education Code enacted by Proposition 227 is entitled "English Language Education for Immigrant Children." These children are no longer students; rather, they are "English learners." § 305(a). The mandated program is defined as an "English language acquisition process." § 306(d). Section 300 includes six findings and declarations, each of which reflects a single-minded focus on learning English. In addition, the statute expressly encourages the placement of eligible children in the same classroom on the basis of their level of English proficiency, in fact suggesting that this should occur irrespective of their ages or grade levels. As different subjects are taught at different grades, it is clear that Proposition 227 relegates subject matter learning to a position of secondary importance.

26. App. I, Exh, D, Wong Fillmore Dec., p. 2, ¶ 4.

27. Id. at p. 4, ¶ 5.

28. App. I, Exh. G, Hakuta Dec., p. 6, ¶ 13.

29. App. II, Exh. A, Allen Dec., p. 2, ¶ 3. App. II, Exhs. L, B, R. Declaration of Bruce McDaniel, pp. 3-4, ¶ 3; Apodaca Dec., p. 2, ¶¶ 6-7; Declaration of Santiago Wood, p. 1, ¶ 3.

30. App. I, Exh. D, p. 2, ¶ 4. See also App. II, Exh. B, Apodaca Dec., pp. 8-9, ¶ 30-31.

31. See App. I., Exh. G, Hakuta Dec., p. 6, ¶ 13; App. II, Exh. L, McDaniel Dec., p. 3, ¶¶ 5-6.

32. App. II, Exh. M, Declaration of James Michael, p. 4, ¶ 13.

33. App. II, Exh. I, Declaration of Norman Kirschenbaum, p. 4, ¶ 11.

34. App. II, Exh. B, Apodaca Dec., p. 10, ¶ 35.

35. As has already been noted, no other class of California is required to obtain a "waiver" before she may obtain an individualized educational needs assessment.

36. App. I, Exh. F, Declaration of Maria Torres-Guzman, p. 5.

37. It is highly unlikely this exception could be read to exempt any child without a diagnosed disability who is unable to acquire sufficient English proficiency and literacy under the one-year immersion program, lest the exception be permitted to swallow the rule created by the Proposition.

38. App. II, Exh. R, Wood Dec., p. 3, ¶ 10.

39. App. II, Exh. A, Allen Dec.. p. 4, ¶ 8.

40. App. I, Exh. F., Torres-Guzman Dec., p. 2, ¶ 4(a).

41. App. II, Exh. M, Michael Dec., p. 3, ¶ 8. See also App. II, Exh. D, Crawford Dec., p. 3, ¶ 9; App. II, Exh. R, Wood Dec., p. 3, ¶ 10.

42. Finally, the ability of local schools to be able to assemble a bilingual program which diverges from the generic mold of Proposition 227 is further compromised by the requirement that at least 20 parents of LEP students at the same grade successfully apply for waiver.

43. App. I, Exh. F, Torres-Guzman Dec., p. 4, ¶ 6.

44. App. II, Exh. L, McDaniel Dec., pp. 7-8, ¶ 14.

45. App. III, Exhs. B, H, F, N, L, C, A. Declaration of Dora G., p. 1, ¶¶ 2-3; Declaration of Marta O., p. 1, ¶ 3; Declaration of Maria M., p. 1, ¶ 4; Declaration of S.P., p. 1, ¶¶ 3,5; Declaration of Jose S., p. 1, ¶ 4; Declaration of Yolanda G., p. 1, ¶¶ 3-4; Declaration of Juana Flores, pp. 1-2, ¶ 4.

46. App. III, Exh. J, Declaration of David R., p. 1, ¶ 3.

47. App. III, Exh. F, Maria M. Dec., p. 2, ¶ 8.

48. App. II, Exhs. P, S, C, E, F. Declaration of Irella Perez, p. 2, ¶ 6; Declaration of Helen Yu, p. 4, ¶¶ 13-14; Declaration of Pilar Arballo, p. 4, ¶11; Declaration of Elisa Garcia, p. 1, ¶¶ 2-4; Declaration of Erminda Garcia, pp. 2-3, ¶ 5.

49. App. II, Exhs. J, Q, R, O, K. Korenstein Dec., p. 4, ¶ 10; Rojas Dec., p. 4 ¶ 14; Wood Dec., p. 2, ¶ 5; Moreno Dec., p. 5, ¶ 6(I); Lopez Dec., p. 6, ¶13.

50. App. II, Exh. J, Korenstein Dec., pp. 1-2, ¶ 3.

51. App. II, Exh. Q, Rojas Dec., p. 6, ¶ 21. Other administrators voice similar concerns, e.g., that it will essentially be impossible to have new texts in the classrooms by the start of the 1998-99 school year. See, e.g., App. II, Exhs. G, L, H. Genis Dec., p. 5, ¶ 9; McDaniel Dec., p. 4, ¶ 9; Gil Dec., p. 4, ¶ 10.

52. App. II, Exhs. J, O, I. Korenstein Dec., p. 2, ¶ 4 ($400,000 will have to be spent on new text in his district); Moreno Dec., p. 4, ¶ 6(b) (estimating replacement costs to be $250,000); Wood Dec., p. 3, ¶ 11; Kirchenbaum Dec., p. 4, ¶ 12 (district does not have the $460,000 needed for new materials). See also App. II, Exhs. G, H, L, D, K. Genis Dec., pp. 4-5, ¶ 8; Gil Dec. p.4, ¶ 9; Mc Daniel Dec., pp. 3-4, ¶ 8; Crawford Dec., p. 2, ¶ 6; Lopez Dec., p. 5, ¶ 9.

53. App. II, Exh. G, Genis Dec., pp. 5-6, ¶ 11.

54. Virtually none of the mainstream teaching force possesses the qualifications that were required of teachers conducting LEP instruction prior to Proposition 227. App. I, Exh. K, Declaration of Lydia Stack, p. 5, ¶ 5.

55. App. II, Exh. I, Kirschenbaum Dec., p. 5, ¶ 13. Moreover, significant morale problems are likely to ensure as teachers trained and credentialed to utilize effective instructional methodologies in teaching LEP students are now barred from doing so. See, e.g., App. II, Exhs. M, A, L, Q. Michael Dec., p. 4, ¶ 13; Allen Dec., pp. 3-4, ¶ 6; McDaniel Dec., p. 5, ¶ 10; Rojas Dec., p. 8, ¶¶ 23, 25.

56. App. II, Exh. G, Genis Dec., p. 8, ¶ 15.

57. App. II, Exh. O, Moreno Dec., p. 4, ¶ 6(e); App. II, Exh. Q, Declaration Waldemar Rojas, p. 6, ¶ 20; App. II, Exh. H, Gil Dec., p. 5, ¶ 13; App. II, Exh. L, McDaniel Dec., p. 7, ¶ 13.

58. In proving a violation of § 1703(f) of the EEOA, plaintiffs need not prove an intent to discriminate, but only the failure of educational agencies to "undertake appropriate efforts to remedy the language deficiencies of [their] students[.]" Castaneda v. Pickard, 648 F.2d 989, 1008 (5th Cir. 1981).

59. A quarter century ago, the Supreme Court acknowledged the non-benign nature of such neglect in a case that also originated in California. In Lau v. Nichols, 414 U.S. 566 (1974), the Court noted that "there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education." Here, while the State does not neglect the special situation of LEP students, it eschews any obligation to ensure that services are appropriately tailored to provide a "meaningful education" to LEP children by barring any efforts beyond the unduly minimal ceiling set by Proposition 227.

60. The structure of a state's educational system defines in major part the scope of a state's EEOA obligation. See Idaho Migrant Council, 647 F.2d at 70-71 (discussing obligation in light of state structure). In California, ultimate responsibility for education lies with the State, with implementation delegated to local districts. Education is "in a sense exclusively a function of the state, which cannot be delegated to any other agency." Piper v. Big Pine Sch. Dist., 193 Cal. 664, 669 (1924); see also Hall v. City of Taft, 47 Cal. 2d 177, 181 (1956) ("School districts are agencies of the state for the local operation of the school system."). The California Supreme Court reiterated in Butt v. State of California, 4 Cal.4th 668, 685 (1992) that "[t]he State itself bears the ultimate authority and responsibility to ensure that its district-based system of common schools provides basic equality of educational opportunity." California law also empowers the State Board, State Superintendent, and the State Department of Education to supervise local districts and to enforce state and federal guarantees of equal educational opportunity. See, e.g, §§ 33031, 33111, 33112, 33301, and 33308.

61. It bears noting that Proposition 227's program derives from neither a local educational agency nor a state educational agency. It springs, rather, from public opinion. Even if well-intentioned, such opinion is lacking in the state agencies' educational expertise and their knowledge of the individual needs of affected students. In interpreting the EEOA, the courts have been careful to limit any deference for educational policy choices in this area to the state and local agencies charged with the duty and possessing the expertise for educating LEP children. See e.g., Gomez, 811 F.2d at 1041; Castañeda, 648 F.2d at 1009, Keyes, 576 F. Supp. at 1510, Teresa P., 724 F. Supp. at 713.

62. As noted above, the programs that would be terminated currently and banned prospectively include those that employ any meaningful amount of primary language instruction for LEP students as well as those that envision a period of English language development in excess of a single academic year. Under these restrictions, virtually every LEP instructional program now in place, predicated on individualized assessments and reclassification, would be outlawed.

63. This is, of course, not to suggest that any minimum would satisfy a state's EEOA obligations. The EEOA prohibits minimum standards set too low. See Gomez, 811 F.2d at 1043 (recognizing, but not resolving, that EEOA requires something more than setting mere minimum). For example, here, even if Proposition 227 were stripped of its prohibitory nature and merely prescribed as a minimum requirement one year of English language development through its peculiar brand of "sheltered English immersion," involving instruction solely in English and highly restricted curricular content, the law would still fail to comply with the EEOA. See discussion at section V.A.2., infra. Thus, while the EEOA also proscribes artificially low minimums, maximums, especially artificially low ones such as that contained in Proposition 227, are simply more blatantly violative.

64. State educational agencies cannot seek legal refuge in the superficially equivocal phrasing, "not normally intended to exceed one year." § 305. As discussed elsewhere in this memorandum, the personal liability provisions of Proposition 227 will undoubtedly chill teachers, administrators, and local school boards from permitting any significant deviation from the one-year norm. In any event, whether or not the wording results in individual students exceeding the presumptive limit, as a mandate imposed by a State overseer the language leaves no room for compromise. Under Proposition 227, the State may not permit any school to adopt a program designed to provide language instruction for longer than a single school year because such a program design would rest on a "normal" expected duration exceeding the Proposition 227 ceiling.

65. In fact, whatever the merits of deferring to a particular district's "genuine and good faith effort" to remedy language deficiencies "consistent with local circumstances an resources" on which Castaneda relied, the assumptions underlying such deference are wholly inapplicable here. Unlike in Castañeda, the program at issue here derives not from an educational agency traditionally accorded deference by the courts, but from public opinion, see fn. 61 supra. Second, as also set forth above, Proposition 227 mandates a massive, unprecedented reduction of services for LEP children -- services deemed appropriate, indeed necessary by State and local educational agencies. Third, Proposition 227 also prohibits educational agencies statewide from reinstituting outlawed services in the future even should they deem them necessary. Because Proposition 227 terminates and places off limits programs that are presumptively "appropriate action" under the EEOA, it should be scrutinized at least as a prima facie EEOA violation. And because the denial of "appropriate action" will have an adverse impact upon national origin minority students, it also constitutes a prima facie violation of Title VI and its implementing regulations. See discussion at section V.C., infra.

Under the unique circumstances of this case, therefore, Proposition 227 counsels for closer scrutiny of the soundness of the State's educational theory than the Fifth Circuit's formulation in Castañeda. It cannot be sustained merely because its theory is supported by "some experts" or is deemed a legitimate experimental strategy, as the Castaneda test for district programs would seem to permit. Rather, the Court must find Proposition 227's statewide prescription to be substantially justified as an educational necessity, a standard consistent with the Title VI jurisprudence from which the EEOA evolved. See, e.g., Larry P. v. Riles, 793 F.2d 969, 982 n.9 (9th Cir. 1984), amended by, 37 F.3d 485 (9th Cir. 1995); Lau, 414 U.S. at 568 (Title VI violated by failure to provide monolingual Chinese-speaking students with equal educational opportunities).

66. Of course, there may be children who, having been in a LEP program for several years, are on the cusp of transitioning to a program lacking special assistance. But, since Proposition 227 imposes its one-size-fits-all mandate upon all limited English proficient children, all LEP children are covered by the one-year rule.

67. School districts have been under an obligation pursuant to § 52164.6 to employ a four-part analysis, including teacher evaluation, objective assessment, parental opinion and consultation, and a review of an "empirically established array of performance in basic skills," to determine when a child "can succeed in an English-only classroom." Those judgments have, with minor individual exceptions, led school districts to determine that children needed more than one year to be able to succeed in an English-only classroom; those determinations are now overridden by the establishment of an arbitrary one-year standard.

68. See fn. 18.

69. The situation is particularly severe for NEP students -- i.e., those who have no proficiency in English. Sheltered English programs were designed as a transitional tool for LEP students who already have significant English proficiency. As stated by Dr. Fillmore, while a sheltered program with primary language support may approximate equal access for children with substantial but imperfect English language skills, it cannot provide equal or, indeed, any meaningful access for the NEP student. Decl. of Lily Wong Fillmore at 2. See also App. I, Exh. G, Hakuta Dec.

70. Children at all levels of education are required to be exposed to a range of subjects. For example, the areas of study required for grades 1 through 6 in California include mathematics, science, language arts, and social science. The California Education Code sets forth specific requirements for the skills and knowledge that each area of study should include. § 51210. For example, language arts must include appreciation for literature and the language as well as skills in speaking, reading, spelling, and composition. Id. Science is required to include biological and physical aspects, with emphasis on the process of experimental inquiry and on the place of humans in ecological systems. Id. Social science must draw upon the disciplines of anthropology, economics, history, and political science, designed to fit the maturity of the pupils. Id. See also §§ 51220 (standards for 7-12) and 51225.3 (graduation standards).

71. Cf. Chacon-Moscone Bilingual Education Act of 1976, codified at former §§ 52161, 52173 (permitting direct parent opt-out from state-prescribed program. See also id., § 52163.5 ("The individualized instruction for each pupil, pursuant to all of the program options, shall be based on a continuing evaluation of the pupil's progress by the classroom teacher, and by others, as appropriate."); Gomez, 811 F.2d at 1044 (Illinois bilingual statute requiring that districts, inter alia, "provide a locally determined transitional program of instruction which, based upon an individual student language assessment, provides [an instructional program designed to ensure] that each student can benefit from educational instruction and achieve an early and effective transition into the regular school curriculum") (emphasis added).

72. As noted above, see section IV.A.3, Proposition 227's provisions for parental waivers seeking exclusion from its mandated program do not cure its fundamental defects. Such waivers are discretionary on the part of local school officials, and are unlikely to guarantee that appropriate LEP instructional methodologies will in fact be provided to each LEP student according to her individual needs even should a waiver be granted. More basically, reliance on the waiver provisions to ensure that "appropriate action" is afforded to each LEP student impermissibly shifts the burden of fulfilling legal responsibilities under the EEOA from local educational agencies to individual parents.

73. See, e.g., Felder v. Casey, 487 U.S. 131 (1988) (Wisconsin notice of claim statute which added procedural requirements to filing of federal civil rights claims preempted); Farmers Educational and Cooperative Union of America v. WDAY, 360 U.S. 525 (1959) (state libel laws which discouraged broadcast stations from airing candidate views preempted by Federal Communications Act); Hill v. Florida, 325 U.S. 538 (1945) (state law requiring licensing of union business agents preempted by NLRA even though not particularly onerous).

74. The value of bilingual education as an instructional methodology has long been recognized by the courts. See Keyes v. School Dist. No. 1, 576 F. Supp 1503, 1516 (D. Colo. 1983) ("The experts agree that this approach not only should enable LEP students to enter the mainstream of instruction, it also helps to overcome the emotional barriers of fear, frustration, discouragement and anger by providing understandable content instruction in their native language during the transitional phase."); Castaneda v. Pickard, 648 F.2d 989, 1010 n.10 ("the value of bilingual education programs in general" not disputed by the record of the parties and was approved for implementation); Gomez, 811 F.2d at 1042 (neither court nor parties challenged conclusion that state's "'transitional bilingual' education" program "is based on sound educational theory"); Serna v. Portales Mun. Sch., 499 F.2d 1147, 1154 (10th Cir. 1974); Cintron v. Brentwood Union Free Sch. Dist., 455 F. Supp. 57 (E.D.N.Y. 1978); Rios v. Read, 480 F. Supp. 14, 23 (E.D.N.Y. 1978). Indeed, the court in Cintron found that the EEOA required bilingual education. 455 F.Supp. at 64. While the courts have not been uniform in their analysis, as we discuss below, it is clear that Congress specifically intended to encourage the use of primary language instruction.

75. See Gomez, 811 F.2d at 1041 ("Congress has provided in § 1703(f) that the spectrum of permissible choice for educational agencies would be broad . . ."); cf. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 50 (1973) (in the area of public education, "a multiplicity of viewpoints" and "a diversity of approaches" which "tailor local programs to local needs" is an advantage, not a liability).

76. Congress has since reauthorized the Bilingual Education Act four times, most recently in 1994 (currently codified at 20 U.S.C. § 7401 et seq.) as part of the Improving America's Schools Act of 1994. That statute reiterates Congress's findings that: "quality bilingual education programs enable children and youth to learn English and meet high academic standards including proficiency in more than one language," "parent and community participation in bilingual education programs contributes to program effectiveness," and that "the use of a child or youth's native language and culture in classroom instruction can -- (A) promote self-esteem and contribute to academic achievement and learning English by limited English proficient children and youth; (B) benefit English-proficient children and youth who also participate in such programs; and (C) develop our Nation's national language resources, thus promoting our Nation's competitiveness in the global economy." 20 U.S.C. § 7402 (a)(9), (12), & (14).

77. Even if it is assumed that under the EEOA the State need not require bilingual education by local districts and that a particular school district may, under some circumstances, choose English-only instruction without running afoul of the EEOA, it is entirely a different matter when the State not only discourages but actually prohibits all school districts -- entities which have independent obligations under the EEOA and which constitute the primary grantees under the Bilingual Education Act -- from utilizing primary language instruction. See, e.g., 20 U.S.C. § 7454 (limiting grants to state agencies to 5 percent of the total amount awarded to local educational agencies within [that s]tate).

78. Even assuming arguendo that Proposition 227's "immersion" may assist some LEP students in isolated instances, it will have these adverse impacts. The rejection of individual needs assessments in favor of an inflexible, generic approach will preclude educators from meeting the needs of individual students for whom Proposition 227's theory will not work. The result will assuredly be an adverse impact on national origin minority students.

79. Because of the "immersion" program's single-minded focus on English language acquisition and its one-year limit, students will "not get access either to the language or to the curriculum they should be learning in school, whatever their grade level." App. I, Exh. D, Wong Fillmore Dec., p. 2, ¶ 4.

80. App. III, Exh. N, Declaration of Kevin Welner, pp. 5-6, ¶¶ 12-16. As in Larry P., many students will be misdiagnosed and misplaced in special education programs. App. I, Exh. C, Declaration of Richard Figueroa, p. 4, ¶ 7.

81. For example, in People Who Care v. Rockford Bd. of Educ., 851 F.Supp. 905 (N.D. Ill. 1994), aff'd in part, rev'd in part on other grounds, 111 F.3d 528 (7th Cir. 1997), the district "pulled out" minority transfer students in a predominantly white school to attend separate remedial courses for significant parts of the day. This and other alternative programs denied minority students an equal opportunity to learn at a level comparable to their white peers. Id. at 915-17.

82. That this analysis applies equally to enactments challenged due to their alleged selective imposition of political burdens upon national origin minorities as well as "racial" minorities is well established. See, e.g., id., 110 F.3d at 1434 n.1 (term "race" used to refer to color, ethnicity, and national origin); Coalition for Economic Equity v. Wilson, 946 F.Supp. 1480, 1488 n.1 (N.D.Cal. 1996) (same).

83. Only a state constitutional amendment faces a higher hurdle, and that process differs only in the number of petition signatures to be collected prior to placement before the voters. See Cal. Const. art. II, § 8.

84. For the benefit of all children in California's public schools, the Legislature has given school districts "the flexibility to create their own unique solutions" in order to address "diverse needs unique to their individual communities and programs." §§ 35160.1(a),(b), 35160. The State has directed that all children receive locally designed courses of study, §§ 51053, 51054, local chosen instructional materials appropriate to their courses of study, § 60000, and instructional materials "suited to the needs and comprehension of pupils at their respective grade levels" as determined locally. § 60045. The Legislature has further affirmed that because of "economic, geographic, physical, political, educational, and social diversity, specific choices about instructional materials need to be made at the local level." § 60000(b). Language minority parents are uniquely denied the opportunity to influence their local schools and school boards in shaping their children's' instructional programs and instructional materials.

85. Beginning with Lau, which recognized the imperative that tailored programs for LEP students are essential to their equal educational opportunity, and continuing through numerous federal court decisions since then, the area of LEP education has been intimately connected to the equal opportunity interests of minorities. Minority groups have long advocated for specific programmatic options, including but not limited to bilingual education, in the area of LEP instruction. See Decl. of Josué González (connection between LEP programs and Latino civil rights movement). Moreover, the kind of programs traditionally favored and advocated by minorities are barred by Proposition 227, further accentuating its national origin focus. See id.

86. In 1996, 1,323,767 LEP students attended California public schools. Of those students, 1,051,125 were Spanish-speaking national origin minorities, and the vast majority of the remainder were students of Asian national origin. See Exh. B to Ho Decl. Indeed, Spanish-speaking minorities of Latino descent and Asian minorities speaking Vietnamese, Hmong, Cantonese, Pilipino, Khmer, Korean, Lao, and Mandarin comprised 95% of all LEP students in 1996. Id.

87. Here, the programs barred by Proposition 227 -- those featuring primary language instruction or ELD of more than one year -- are not clearly legally disfavored, constitutionally or otherwise. Indeed, the use of primary language instruction has long been viewed as a valuable tool in providing equal educational opportunity to minority LEP students. See Section V.B. of this brief.

88. What is more, the overtones of the proponents' arguments further underscore the national origin focus of Proposition 227. In their official ballot argument, Proposition 227's proponents cast the issue of LEP instruction as a Latino problem:

For most of California's non-English speaking students, bilingual education actually means monolingual, SPANISH-ONLY education for the first 4 to 7 years of school . . . Latino immigrant children are the principal victims . . . They have the lowest test scores and highest dropout rates of any immigrant group . . . Most Latino parents . . . know that Spanish-only bilingual education is preventing their children from learning English . . .

Exh. C to Ho Dec. (Argument in Favor of Proposition 227, in Cal. Voter Information Guide/Ballot Pamphlet for June 2, 1998 Election, at 34). Likewise, the proponents' rebuttal to the argument against Proposition 227 refers to "our failed system of SPANISH-ONLY bilingual education." Id. at 35. (Emphases in original)