With a Whimper But Also Some Bangs

Divisive American initiative measures, especially those touching on controversial ethnic issues, almost inevitably follow a consistent pattern.

First, for a year or more, the two sides wage a ferociously contested political campaign,
frequently with massive funding and the political establishment on one side and overwhelming popular sentiment on the other. Harsh television ads and influential political figures denounce the proposal as monstrous and destructive, a law that will end life as we know it and perhaps even life itself on the planet earth or at least a significant portion thereof. On election night, screams and cries and rending of garments inevitably accompany the often victorious vote for the measure in question.

Then, the following morning, having cried themselves to sleep, the political powers that be wake up refreshed, rejuvenated, and walk a few steps into the local courts to block much or most of the law the people had just endorsed the night before, frequently expending taxpayer funds to challenge what taxpayers had just enacted.

These court rulings, together with the confusion they engender, then provide legal cover for elected officials to stubbornly fail to enforce even those sections of the law that survive legal nullification, and by the time all the lawsuits have been resolved, the fickle public has usually forgotten that the measure had even passed in the first place, with the ultimate result being merely a slight addition to widespread and nagging cynicism that democracy is merely a fraud and politicians do whatever they feel like doing, law or not.

For example, in 1988 the voters of California enacted Proposition 103, a sweeping insurance reform measure that passed despite being outspent $40 million to nothing in advertising by the insurance companies, who then largely eviscerated it in the courts, with the support of most elected officials. California voters have passed an endless series of sweeping campaign reform measures, most recently Proposition 208 in 1998, with all of these being opposed by the bipartisan political establishment and all of these meeting the same fate of legal nullification. Medical marijuana and other drug reform measures have also been passed by landslide majorities in California, Arizona, and numerous other states, but have been largely treated as a dead letter by both federal and state officials.

Populist ballot measures backed by conservatives have encountered this same fate. Proposition 187, an anti-illegal immigrant measure, passed by an 18 point margin in California’s 1998 November elections, swept a Republican ticket to statewide victory in its wake, and was blocked in federal court the following day, eventually dying a quiet but final legal death a few years later. Proposition 209, banning affirmative action in California, passed easily in 1996, and although it did finally escape the limbo of a federal court injunction after about a year, many of its strongest supporters claim that its requirements
have been very widely—but quietly—ignored throughout California’s universities and other public institutions.


Proposition 227, the California measure dismantling bilingual education, followed a very different and almost unique trajectory. Passed by a 22 point landslide in June 1998, it was immediately challenged in federal court, but almost as quickly emerged victorious. Within seven weeks of election-night, four separate federal judges had ruled in favor of every disputed aspect of the enormously-controversial initiative, allowing an educational measure passed in June to be implemented throughout California’s thousand-odd school districts at the beginning of September.

Although many of the more stubborn school districts have dragged their heels on implementing the measure, sometimes as much due to bureaucratic ineptitude as ideological commitment, the number of students officially enrolled in bilingual programs has fallen by 70% or more, leaving supporters merely with the question of whether the glass is 70% full or 30% empty. It is difficult to think of any such sweeping educational change anywhere in America involving a million students or more that has ever been implemented so quickly and so relatively completely.

Perhaps coincidentally, there is probably also no similar case of so rapid and dramatic a rise of academic test scores, with a million plus immigrant students having roughly doubled their academic performance in less than four years.


Meanwhile, the more ideologically committed defenders of the mostly vanished bilingual programs have never given up, let alone publicly admitted defeat. Over the last four years, they have trooped from judge to judge, federal courtroom to federal courtroom, endlessly hoping to find a means of overturning a law that is rapidly becoming part of the accepted status quo.

And during these years, they have compiled an unbroken record of federal legal defeats, whether at the district or the Appellate level, with nearly a dozen or more different federal judges having now ruled against them.

Then, just this Monday, they suffered what may be close to their final defeat, losing a unanimous ruling in the Ninth Circuit Court of Appeals, from a panel of federal judges hardly notorious for their conservative judicial philosophy. Although these extraordinarily determined advocates of Spanish-only classes for Latino children have still suggested they may appeal this verdict to the complete Ninth Circuit or even to the U.S. Supreme Court, the likelihood of either such body being willing to consider this motion seems extremely
low. Proposition 227—and its siblings in other states—appear absolutely and completely constitutional.


Although this definitive and unanimous Ninth Circuit ruling might have generated major headlines two or three years ago, its coverage in today’s papers was brief and buried, treated in just a sentence or two in national papers such as the New York Times. One of the few partial exceptions was an article in the San Jose Mercury News, which I attach below.

Few can fault the media for largely ignoring this decision, which after all followed a long sequence of very similar court rulings since 1998 and had been widely expected. But it is interesting that the legal campaign for bilingual education—with its earliest roots in the 1974 Lau v. Nichols decision of the U.S. Supreme Court—seems to have ended with a whimper, not a bang.


Meanwhile, bangs aplenty continue on the political side of the conflict.

Yesterday’s National section of the New York Times carried as its top story a solid and even-handed account of our “English” initiative campaigns that have reached the ballot in Massachusetts and Colorado, coverage that might easily have reached the front page of America’s newspaper of record if not for the events surrounding the looming likelihood of our war with Iraq and the first Presidential invocation of the Taft-Hartley Act in over thirty years. I attach the article below.

In Colorado, the Rocky Mountain News, known for its local coverage, has been running one or more major stories each day this week on Amendment 31 and related bilingual education issues elsewhere in America.

We—and many other observers—had been very surprised at the editorial opposition of the Denver Rocky, opposition that was a sharp departure from its previous leanings and perhaps came as a falling domino, following as it did a few days after the declared opposition of Republican Gov. Bill Owens, which in turn came a few days after a billionaire heiress wrote the largest check in Colorado political history to the No campaign.

But although the news pages of the Rocky are widely perceived as far more centrist than the conservative-leaning editorial pages, the detailed stories running in those news pages have been absolutely fair and even-handed in their treatment, and in some causes outstanding in their coverage. Probably no American newspaper since 1998 has run so thorough a series on the national topic of bilingual education. I attach below a couple of the articles in that impressive series.


Meanwhile, in Massachusetts, the battle over the very similar Question 2 continues to go extremely well, with only the Green Party candidate, currently at 2% in statewide polls, strongly opposing the ballot question during the recent Gubernatorial debate. Presumably, private polls in liberal Massachusetts must be very favorable if Democratic candidates continue to so strongly avoid the issue, despite endless vociferous complaints from bilingual education advocates. As of today, we have not yet spent a single dollar on advertising.

Since no eccentric billionaire supporter of Spanish-only classes has yet appeared in the Bay State, checkbook in hand, to oppose Question 2, we are increasingly confident about a major victory in the home of America’s first statewide bilingual education law and arguably the liberal leader among American states.


And in Santa Ana, California, desperate political allies of Nativo Lopez, currently under recall threat for his refusal to comply with Proposition 227, two days ago voted to spend tens of thousands of dollars of public school funds to oppose that recall effort, an action that is as legally dubious as it may be politically unwise so close to an election.

Now Santa Ana ranks as America’s most heavily Spanish-speaking city, being around 85% Latino and overwhelmingly Democratic and immigrant, so the willingness of Lopez’s allies to take money out of the public schools—so important and popular with Latino parents—in a probably futile attempt to prevent those same parents from being allowed a democratic vote on one of their elected officials is an extremely clear sign of the expected result of such a vote. I enclose today’s articles from the local newspapers.

Although Orange County, California is still widely perceived as an unchallenged fortress for white conservative Republicans, in recent years its major cities—especially Santa Ana—have actually been transformed into bastions for Latino Democrats.

Today, white conservative Republicans throughout California spend much of their time and energy locked in bitter and ferocious factional disputes with other white conservative Republicans, battling over obscure issues that most voters—including most ordinary Republicans—cannot even slightly comprehend. This utterly feckless behavior is rapidly driving the California Republican Party close to the edge of extinction.

At this same time, it appears that Santa Ana’s Latino Democratic voters are close to achieving a successful populist revolt against the Spanish-only classes of their entrenched political masters, thereby enacting what was always an important element of Ronald Reagan’s original ideological agenda.

Perhaps, therefore, these Latino Democrats should reregister as Reagan Republicans, while the esteemed George W. Bush and Gov. Bill Owens of Colorado consider crossing that same political aisle, but in the opposite direction.

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