Sacramento Bee

Friday, August 28, 1998

Schools Can Seek Bilingual Waivers
By JANINE DeFAO and LESLI MAXWELL, Bee Staff Writer and Bee Correspondent

OAKLAND -- School districts throughout the state will be able to seek waivers allowing them to keep their bilingual education classes despite the overwhelming passage of Proposition 227, which sought to dismantle such programs.

Alameda County Superior Court Judge Henry E. Needham ruled Thursday that the California Board of Education must consider granting waivers to districts that do not want to replace their bilingual programs with the "English immersion" approach mandated by the initiative.

Already, 31 districts -- including one in Woodland -- have sought waivers to save their programs for limited English students, and both sides in the case said the ruling could trigger a flood of requests from the state's nearly 1,000 school districts.

"I am sure other districts are waiting in the wings to submit their waiver requests," said William M. Quinn Jr., attorney for the Berkeley, Oakland and Hayward school districts. The three districts sued the state board and the California Department of Education over the board's refusal to consider granting waivers from the initiative's requirements.

Needham, however, denied the districts' request for a preliminary injunction, meaning schools must continue to implement the proposition while they wait for waiver requests to be heard.

"There is no reason to halt implementation," said Sheri Annis, spokeswoman for the Proposition 227 campaign.

Bill Lucia, the state board's executive director, said the board could take up the three districts' requests at its next meeting next month. Additional waiver requests likely would be heard at a later meeting, but the board also will consider whether to appeal Needham's ruling.

"It opens up Pandora's box," Sacramento City Unified Superintendent Jim Sweeney said of Thursday's ruling. "Certainly, we'll have to look at that (ruling), as I'm sure everybody will."

After 60 percent of voters approved the initiative in the June primary, the state board determined it did not have the authority to exempt entire districts from the measure. The initiative, which took effect Aug. 2, allows only parents to seek waivers in limited cases.

"Voters wanted to get rid of bilingual education as an imposed system," attorney Angela Botelho, representing the state board, argued in court. "Why would voters want school districts to be able to reimpose it?"

Some 1.4 million students -- a quarter of the state's public school enrollment -- are limited in English.

Botelho predicted the board's consideration of waiver requests will result in a "mountain of litigation. There will be lawsuits, which will force courts to decide what's best district by district."

But attorneys for the three school districts said passage of Proposition 227 created a statute that became part of the state education code.

"Nothing in the education code says that waivers cannot be requested in this law," Quinn said.

While Needham ruled that the state board must consider such waivers, he did not say the board must grant them.

But attorneys familiar with state education law said the board must grant waivers unless a district's proposal fails to meet certain criteria.

But Lucia said the board can -- and does -- deny waivers if it believes students' educational needs will not be met or parent involvement will be denied.

"I think it's foolhardy for a district that has employed a failed system to come to the state board and pretend educational needs and parent protections" are being met, Lucia said.

Annis said initiative supporters "believe the state board will be consistent with their previous desires that they do not intend to second-guess California voters."

But districts seeking waivers hope to prove that programs using students' native languages can be successful.

Woodland Unified is one of the 31 districts already seeking a waiver.

We want "to maximize the ability of our professional staff to use the latest knowledge of effective (programs) for non-English speaking students and match the variety of programs to individual students," said district spokesman Wayne Ginsburg.

A spokesman for Los Angeles Unified -- which has by far the state's largest number of limited-English students -- said the district may seek limited waivers for some programs but is otherwise proceeding with a new system.

In San Francisco Unified, where Superintendent William Rojas vocally opposed Proposition 227, officials said they must continue to offer some bilingual programs under a federal court order but will let parents decide which type of program in which to place their children.

Berkeley Unified School District Superintendent Jack McLaughlin said Thursday's court ruling is a victory for both sides.

"It's a win-win situation really," McLaughlin said. "Now the state board has the opportunity to look at all the programs that come to them in the waiver process and they can deny those that do not work and approve those that do work for students who don't speak English."