"Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question," wrote Tocqueville. That is exactly what is happening with bilingual education. Legal skirmishes over this issue had broken out before the passage in California last week of Proposition 227, which bans bilingual education. But 227 has precipitated a full-fledged litigation war.
It was easy to see this one coming: Three out of every four winning initiatives in California have faced legal challenges recently; courts have thrown out nearly half of them, in whole or in part. "When it comes to ballot measures, California has a tradition: Tuesday is election day, Wednesday is lawsuit day," the Los Angeles Times wrote last week.
Sure enough, Proposition 227 was challenged in court last Wednesday–the day after it passed–by the Mexican American Legal Defense and Education Fund, Chinese for Affirmative Action, the National Council of La Raza, the American Civil Liberties Union and a variety of other liberal special-interest groups. Their complaint, filed in federal court, alleges that the ban on bilingual education is national-origin discrimination, in violation of Title VI of the Civil Rights Act of 1964 (and the Constitution’s Fourteenth Amendment), and a denial of equal educational opportunity in violation of the Equal Educational Opportunities Act of 1974. The case has been assigned to Judge Charles Legge, a Reagan appointee.
The proponents of bilingual education have long tried to bolster their support by invoking the two federal laws that are at the heart of last Wednesday’s lawsuit: Title VI and the EEOA. The evidence has been mounting for years that bilingual education is a poor way for children to learn English, and its only really enthusiastic supporters have been those members of the education bureaucracy who make a living off its dubious teaching methods, and the special-interest Latino and nal-origin segregation.
In addition, some school districts offer a substantively different curriculum in their bilingual classes. A New Mexico statute, for instance, requires that to be eligible for state funding a bilingual program must "emphasize the history and culture associated with the students’ mother tongue." If you teach history and culture to Hispanics one way and to Anglos another, you have once more discriminated on the basis of national origin.
The mounting empirical evidence against the educational efficacy of bilingual programs is also enabling their opponents to use the EEOA in attacking them. The courts have interpreted this statute as requiring any language program to pass a three-part test, the last prong of which demands that the program actually produce successful results. Bilingual education’s documented failures, particularly as measured by standardized tests in specific school districts, make it a ripe target. What’s more, school systems have refused even to test many children in bilingual programs, making it easier to hide the programs’ failures.
The legal challenges to Proposition 227 will therefore likely fail. The remaining questions are how quickly and effectively the law will be enforced. A useful point of comparison is Proposition 209, the initiative banning the state of California from using preferences based on race, ethnicity or sex. It was also challenged by left-wing groups immediately after it passed and ultimately upheld by the federal courts.
There has been a great deal of foot-dragging and recalcitrance among some California officials forced to comply with the color-blind law. Their resistance will be facilitated by the ease with which the granting of such preferences can sometimes be hidden.
Similarly, some local educators in California are standing in the schoolhouse door, insisting that they won’t let the law into their bilingual classrooms. For instance, 1,500 teachers have signed a petition vowing to fight or disregard Proposition 227. One teacher declared that the initiative "forces us to be saboteurs." But it won’t be so easy to hide bilingual programs from parents, who are their greatest foes. And the initiative shrewdly contains a provision that says any 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."
While guerrilla warfare continues against Proposition 209, the rule of law may triumph for Proposition 227.
Mr. Clegg is general counsel of the Center for Equal Opportunity, a Washington, D.C.-based think tank that opposes bilingual education.