San Francisco Chronicle

Saturday, March 28, 1998

Rojas Files Federal Suit Against State Educators
Achievement test is illegal, he contends
By NANETTE ASIMOV, GREG LUCAS, Chronicle Staff Writers

Declaring California's new state achievement test illegal and ``a mockery of public education,'' San Francisco Superintendent of Schools Bill Rojas sued state educators yesterday to stop them from forcing children who do not speak English to take the test in English.

The federal suit alleges that the test violates the federal Civil Rights Act and Equal Protection Clause of the 14th Amendment.

If successful, the suit could derail the reading and math exams being given to all California students in grades 2 through 11 now through May 15. The test is the first given statewide since 1994.

``We think that when we prevail, this test will not be administered in this state this year,'' said Rojas. ``If kids are forced to take the test in a language other than the one they know, they will score badly and will carry that stigma through their life unnecessarily.''

One in four students in the state, or 1.3 million, speak little or no English. Rojas is alone in refusing to give the new test to children who don't speak English, but hopes other superintendents who disapprove of the law will join in.

The legal maneuver brought an angry response from Governor Pete Wilson, who signed the state testing program into law last fall and has promoted the idea that all children be tested in English even if they don't know the language.

``Every student matters, and we must make a commitment to educate and assess the progress of each one,'' Wilson said. ``We cannot allow California's children to be cheated out of educational accountability by those who seek to skirt the law.''

State educators have threatened to withhold millions of dollars in funds to San Francisco since the city school board voted March 17 to give the new test to immigrant students only if they have taken 30 months of English.

As of yesterday, the amount of money in limbo had climbed to $23 million in federal and state dollars for bilingual education, technology and schooling for low-income children.

In addition, state Superintendent of Public Instruction Delaine Eastin told Rojas last week that if he did not agree by yesterday to give the test to every child, the state would sue San Francisco schools by Monday.

Instead of complying, Rojas filed suit against the state, naming Eastin, her Department of Education and the state Board of Education as plaintiffs. His counteroffensive came with the blessing of the local school board, which met privately Tuesday to authorize it.

Observers said the move was shrewd, because a judge could have ordered San Francisco to administer the test and sent Rojas to jail for refusing to comply.

``If we had done nothing, we'd have the wrath of the state judge against us,'' Rojas said. ``I'd have had to take my toothbrush over to Sheriff (Michael) Hennessey's place. They have nice art in the jail, but I don't particularly want to see it.''

The suit says: ``Those who do not understand English are certain to find a test administered in English wholly incomprehensible and in no way meaningful.'' It also quotes from the nation's most famous case of discrimination against limited-English speakers, Lau vs. Nichols, won by a young San Franciscan the mid-1970s.

The case gave rise to the nation's bilingual education system. It says that requiring children to participate in programs they do not have the skills for ``makes a mockery of public education.''

Michael Hersher, the attorney representing both the state Department of Education and Superintendent Eastin, declined to comment until he has reviewed the 23- page complaint.

Although Eastin is a defendant, she agrees philosophically with Rojas' position on the language requirement. ``I personally regret having to go to such lengths, but I am sworn to uphold state law,'' she wrote to him on March 19.

The state Board of Education is ``deeply distressed that San Francisco is taking this tack,'' said Bill Lucia, the board's executive director. All children should take the test in English, he said, ``because it's better to start with a score -- even if it's a low score -- so you know how students are progressing.''

Sources close to the state educators also suggested a possible conflict of interest in the case, because San Francisco's attorney, Joseph Symkowick, had been an attorney for the defendants and has been on unpaid leave from state with return rights since February.