Challenge
to Proposition 227:
The Case of Valeria G. v. Wilson
Jill
Kerper Mora
San Diego State University
Background
The provisions of the Civil Rights Act were challenged in the case of Lau v. Nichols before the United States Supreme Court in 1974. This was a class-action suit file by Chinese parents in San Francisco who claimed that because their children did not speak English, the school district's failure to provide them a specially designed program to teach them English was a violation of their civil rights. The Court's unanimous decision in favor of the plaintiff stated that children who do not speak English are nonetheless entitled to "equal access" to the school curriculum. The Court declared that the plaintiffs in the Lau v. Nichols case had been foreclosed from receiving "a meaningful and effective education." One means of addressing these rights was through implementation of bilingual education programs that provide students the opportunity to learn academic content in their native languages while gaining competence in English. Several federal and state court cases over the years since the Lau v. Nichols decision have established the requirements for programs for language minority students.
In 1981, Casteñeda v. Pickard outlined a three-pronged test for programs that adequately meet the needs of language minority students. This Texas case set the standards for determining what constituted "appropriate action" on the part of school districts to address the educational rights of students learning English. The court determined that under the provisions of the Equal Educational Opportunities Act, programs had to meet three criteria. The program had to be based on a pedagogically sound plan, with sufficient qualified teachers to implement the program, and had to have a system to evaluate the programs' effectiveness in educating language minority students.
Proposition 227 Is Approved
Following passage of Proposition 227, which took effect on August 3, 1998, confusion reigned in the California public schools. Prior to passage of Proposition 227, the procedures for educating language minority students who do not speak English were spelled out by provisions of the Chacon-Moscone Bilingual Education Act of 1974. That law expired in 1987. The law required a language assessment for children whose Home Language Survey indicated that a language other than English was used in the home. Testing was required to indicate if the child had limited English proficiency (LEP). If so designated, these students had to receive special language services to meet their needs. Thirty percent of these students were in programs designated bilingual education. Students were provided bilingual education or other services such as ESL instruction or "sheltered English immersion" until they were eligible for re-designation as fluent English proficient (FEP). To be redesignated as FEP, students had to achieve a level three or better on a five-point language proficiency scale and score in the 36th percentile in reading on a standardized achievement test.
A petition for an injunction against implementation of Proposition 227 by civil rights groups was filed in federal district court in San Francisco. In the case of Valeria G. et al v. Wilson, opponents of the law claimed that the one-year immersion program would not overcome language barriers to provide language minority students equal access to the core curriculum and as required by federal civil rights law. In their court brief, the Mexican American Legal Defense and Education Fund (1998) alleged that Proposition 227 violated the Equal Educational Opportunities Act. MALDEF claimed that Proposition 227 failed to provide the requisite services to limited English proficient (LEP) students through an adequate instructional theory, plan of implementation and evaluative systems. In their defense against the injunction, proponents of Proposition 227 pointed to successful immersion programs in Canada, Germany and Israel.
Injunction
Denied
On July 15, 1998 Judge Charles Legge of U.S. District Court U.S. (1998) denied the injunction filed by civil rights organizations in Valeria G. v. Wilson against enforcement of Proposition 227. Legge declared that "structured English immersion" was permissible as a plan for teaching limited English proficient students under federal law, based on the previous ruling in the 1981 Texas case of Castañeda v. Pickard. This ruling outlined a three-pronged test for programs that adequately meet the needs of language minority students, thus setting the standards for determining what constituted "appropriate action" on the part of school districts to address the educational rights of students learning English. The court determined that under the provisions of the Equal Educational Opportunities Act, programs had to meet three criteria. All programs had to be based on a pedagogically sound plan, with sufficient qualified teachers to implement the program, and had to have a system to evaluate the programs' effectiveness in educating language minority students.
A Policy Preference
In denying the injunction against implementation of Proposition 227, Judge Legge declared that the California electorate had expressed its "policy preference" by popular vote. He ruled that the structured English immersion program was based on delivery of English language and content instruction that was "sequential" rather than "simultaneous" teaching of academic content. The assumption was that a focus on teaching English first and then providing intensive remedial instruction, language minority student would have equitable access to the curriculum. An educational theory that was supported by "some experts" and showed potential for success was acceptable to meet the requirements of the Lau v. Nichols Supreme Court ruling of 1974. Relying heavily on pro-Proposition 227 experts' interpretation of the one-year SEI program model, Judge Legge's decision rejected the plaintiff’s claim that Proposition 227 impedes the ability of school districts to comply with their obligations under the Equal Educational Opportunities Act (EEOC) and the Bilingual Education Act (BEA) of 1974.
Judge Legge interpreted the 1981 Castañeda ruling to mean that an interim sacrifice of learning during the period in which students are acquiring English is permissible under the definition of "appropriate action" for a school district. This sequential model of delivery of English language skills and content-area instruction is permitted, as long as any deficits that occur are recouped through intensive remedial programs to help student catch up in other areas of the curriculum within a reasonable period of time. Expert testimony was provided by the defendants that equated SEI to newcomers programs, where students are placed in special language classes for up to a year before being placed in mainstream classroom. The defendants also presented evidence that numerous school districts in the United States use structured immersion methods. Furthermore, in his ruling in Valeria G. v. Wilson, Judge Legge concluded that because the EEOA does not require bilingual education, the state of California is not prohibited from denying bilingual education.
Unanswered
Questions
Following the ruling that Proposition 227 would be enforced, the California State Board of Education (California Department of Education, 1998) issued regulations that raised more questions than they answered about what the new law meant and how to implement it. The structure and curriculum of the new mandated program were not clearly defined either by the law or by the ensuing regulations. As a result, administrators and teachers scrambled to cope with the sweeping changes mandated by new provisions of the education code for the start-up of the school year. However, the special services that are required to meet this standard were not defined, other than a reference to "additional and appropriate educational services" to recoup any academic deficits. In other words, the 1,043 school districts in California are required to provide only one year of structured English immersion, and subsequently, whatever remedial instructional programs they deem necessary so that students can catch up after their required year of SEI. In order to comply with federal law, school districts must provide these services until limited English proficient students attain a level of academic achievement comparable to their native English-speaking peers at grade level.