“Is” Isn’t “Is” in California—Is It?

Although the populist supporters of controversial ballot measures endlessly decry the tendency of courts to temporarily block or nullify implementation, such arguments are unreasonable. Judicial review is at the heart of the American constitutional system, and if courts are permitted to overturn the actions of Presidents or legislatures, they must surely be allowed to play a similar oversight role for ballot measures.

Since an unfortunately large fraction of ballot initiatives are poorly drafted products of grass- roots activists with more enthusiasm than drafting skill, we should hardly be surprised that those measures are more vulnerable to legal challenge. Furthermore, the overwhelming majority of regular state laws are of absolutely no importance or interest other than to sloganeering politicians desperate to compile a portfolio of achievement or to special interest groups battling over obscure economic issues. Obviously, laws that are of absolutely no importance or interest are far less likely to be challenged in court.

Thus, the attempt of California’s bilingual education advocates to overturn Proposition 227 in the courts despite its resounding mandate of 61% at the polls was absolutely legitimate and proper. They filed their challenge the day after the election, suffered adverse rulings from four separate federal judges within seven weeks, and then watched in despair as a measure passed in June was fully implemented statewide at the beginning of the September school year. Although residual legal challenges continue, there is no particular reason to believe that they will have any different result. Proposition 227 is the law of the land throughout California today and is likely to remain so for the indefinite future.

But while bilingual advocates have suffered defeat after defeat at the ballot box and in court, earlier this year their shrill lobbying and potent organization nearly cowed California’s State Board of Education into cowardly action on their behalf. With no media or public attention, the unelected Board almost enacted new regulations effectively nullifying the core provisions of Proposition 227, thereby violating both the will of the people and the rulings of judges. Such action, although completely illegal, would have surely inspired bilingual education diehards throughout California’s thousand-odd school districts to redouble their efforts to ignore, resist, or circumvent the law.

Fortunately, once word of the Board’s proposed actions leaked out, and a firestorm of media coverage resulted, the Board began its embarrassing retreat back to legality.

In early February, the staff and members of the Board had seriously and repeatedly claimed at official hearings that Proposition 227 allowed bilingual teachers to apply for “Parental Exception Waivers” to place immigrant students in Spanish- only classes, despite absolutely clear language to the contrary. Such a position did not even pass the laugh test, and as the front-page article from Friday’s North County Times indicates, the Board now sheepishly admits that “Parental Exception Waivers” do have some actual connection to parents. Previous articles and columns below from the San Diego Union-Tribune and the Sacramento Bee tell much the same story.

Perhaps coincidentally, John Mockler, the Executive Director of the State Board and probably its dominant figure, has now suddenly and unexpectedly announced his resignation.


But while we are happy that the State Board has publicly admitted the complete illegality of one of its most troubling proposals, the Board is still engaged in bizarre legal contortions on a less widely publicized but highly important matter.

Under the terms of Proposition 227, limited-English children younger than ten must be taught English for at least the first thirty days of each school year, before a Spanish-only waiver may be granted. This requirement was intended to provide immigrant parents an annual opportunity to determine whether or not their children can benefit from a sheltered English program, as well as ensuring that immigrant students at schools completely dominated by Spanish-only advocates received at least a bare amount of English instruction each school year.

During the 1998 initiative campaign, this annual requirement of thirty days of English instruction was endlessly denounced by initiative opponents in the strongest possible terms, and repeatedly underscored in the media. In fact, MALDEF, the Mexican-American Legal Defense and Education Fund, which led the No campaign, even highlighted the thirty day requirement in its legal analysis of the initiative, as did numerous columnists and editorial writers.


Now, however, the California State Board of Education and its legal staff—all of whom had (apparently) opposed the initiative at the time— have decided the thirty day requirement does not really exist in the initiative, plain eyesight to the contrary. They argue that a child need be provided thirty days of English instruction only once, perhaps at the beginning of kindergarten, and that all the remaining twelve years of public school instruction may be taught entirely in Spanish. This is an absolute violation of the law.

The relevant sections of Proposition 227 could not be clearer, as shown by the sections quoted below (with emphasis added):

Section 310: The requirements of Section 305 may be waived with the prior written informed consent, to be provided ANNUALLY, of the child’s parents or legal guardian under the circumstances specified below and in Section 311.

Section 311 and Subsection(c): The circumstances in which a parental exception waiver may be granted under Section 310 are as follows.the child already has been placed for a period of NOT LESS THAN THIRTY DAYS DURING THAT SCHOOL YEAR in an English language classroom and it is subsequently the informed belief of the school principal and educational staff that the child has such special physical, emotional, psychological, or educational needs that an alternate course of educational study would be better suited to the child’s overall educational development.

The apparent argument of the leadership of the State Board and its legal advisors is an interesting one, which would have almost put to shame the notorious Clintonian legalisms of our brilliant if frequently evasive former occupant of the White House.

The State Board and its staff fully admit that Section 310 requires that the “waiving” process occur annually. The State Board and its staff also fully admit that Section 311 only allows the Spanish-only “waiver” to be granted after an immigrant child has already been taught English for at least thirty days during that particular school year. But they argue that the verb “waiving” and the noun “waiver” refer to two entirely different processes, which have absolutely no direct connection to each other.

Thus, under this interpretation that “waiving” and “waiver” refer to entirely different matters, bilingual education teachers would absolutely be within their legal rights in providing American- born Latino children with one month of English instruction when they first entered kindergarten, and subsequently protecting them from ever hearing another single word of English spoken during the next TWELVE YEARS AND EIGHT MONTHS they spend in California public school classrooms.

Again, the Board is supporting a policy that would legally allow American-born students to spend over twelve years in California public schools without hearing a single word of English, and is justifying this proposed policy on the grounds that such was the actual hidden intent of the voters who passed Proposition 227.

Although this view is arguably contrary to the plain English of Proposition 227 and is certainly contrary to the explicit public statements by all prominent supporters and opponents both before and after passage, it is the current interpretation of Proposition 227 by Board President Reed Hastings, who strongly opposed Proposition 227 at the ballot, and is now legally responsible for drafting the regulations to properly implement the measure. Although Hastings is seemingly a very bright software executive, perhaps his English language skills have some slight gaps. Or perhaps he has recently been distracted by his recent public efforts to obtaining IPO funding for his video rental-company, Netflix.com under very difficult and challenging current market conditions.

Those of you in the media or the general public who might wish to hear President Hastings side of the story, or perhaps even explore his English skills as to the sharp distinction between “waiving” and “waiver,” might choose to contact him. The official State Board of Education web site lists his number as 1-408-399-3772 and his email as [email protected].

The next State Board meeting, within a couple of weeks, may determine whether California schoolchildren may go over twelve years without hearing a single word of English—and whether “Is” is “Is” in California.

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