1 See Anne Ryman, Paradise Valley OKs Bilingual Teachers, Ariz. Republic, Jan. 5, 2001, available at http://www.onenation.org/0101/010501a.htm (last visited Mar. 28, 2002).
2 See June Kronholz, Unease Fueled Vote Against Bilingual Education, Wall St. J., June 4, 1998, at A2.
3 See Charlie Brennan, Language Battle Heads to Colorado, Dallas Morning News, Sept. 1, 2001; Scott Greenberger, Bilingual Ed Law Gets a New Foe, Boston Globe, July 31, 2001, at B1.
4 Town’s Bilingual Classes Hailed, Boston Globe, Oct. 28, 2001, at W4.
5 See Rachel Moran, The Politics of Discretion: Federal Intervention in Bilingual Education, 76 Cal. L. Rev. 1249, 1249–50 (1988).
6 See infra notes 11–21.
7 See infra notes 22–33.
8 See infra notes 34–94.
9 See infra notes 95–153.
10 See infra notes 154–241.
11 See Plyler v. Doe, 457 U.S. 202, 221 (1982) (holding that although education is not a right granted by the Constitution, it deserves elevated scrutiny); see also Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (“American people have always regarded education and acquisition of knowledge as matters of supreme importance.”).
12 20 U.S.C. � 3401(1) (1979).
13 See Plyler, 457 U.S. at 223.
14 See, e.g., Helena Elementary Sch. Dist. No. 1 v. State, 769 P.2d 684, 690-91 (Mont. 1989) (holding school funding system unconstitutional under state constitution); Charlet v. Legislature of State, 713 So. 2d 1199, 1207 (La. Ct. App. 1998) (holding school funding was appropriately allocated by state).
15 See 411 U.S. 1, 1 (1973).
16 See id. at 35.
17 See id. at 4–5.
18 See id. at 5–6.
19 See Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280, 285–86 (W.D. Tex. 1971).
20 See Rodriguez, 411 U.S. at 62.
21 See id. at 33.
22 See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 457 (1991) (“As every schoolchild learns, our Constitution establishes a system of dual sovereignty between the States and the Federal Government.”).
23 See Milliken v. Bradley, 418 U.S. 717, 741–42 (1974).
24 See 20 U.S.C. � 3401(4)(1979) (“The Congress finds that . . . in our Federal system, the primary public responsibility for education is reserved respectively to the States and the local school systems and other instrumentalities of the States.”).
25 See id. � 3403:
(a) Rights of local governments and educational institutions. It is the intention of the Congress in the establishment of the Department to protect the rights of State and local governments . . . and to strengthen and improve the control of such governments and institutions over their own educational programs and policies. The establishment of the Department of Education shall not increase the authority of the Federal Government over education or diminish the responsibility for education that is reserved to the States and the local school systems and other instrumentalities of the States.
(b) Curriculum, administration, and personnel; library resources. No provision of a program administered by the Secretary or by any other officer of the Department shall be construed to authorize the Secretary or any such officer to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system . . . or over the selection or content of library resources, textbooks, or other instructional materials by any educational institution or school system, except to the extent authorized by law.
Id.
26 See South Dakota v. Dole, 483 U.S. 203, 206–08 (1987) (noting Congress is allowed to attach extensive conditions to the receipt of federal funds for education, though it must do so unambiguously). See generally Moran, supra note 5.
27 See generally Moran, supra note 5.
28 See 262 U.S. 390, 403 (1923). The court was reviewing a conviction for violating this statute. See id. at 396–97.
29 See id. at 401, 403.
30 See 268 U.S. 510, 534–35 (1925).
31 See id.
32 See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 319–20 (1978) (holding the University’s special admissions program was unlawful and preventing the University from considering applicants’ race); Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (holding that African-American students were deprived of equal protection of law).
33 See infra notes 155–87.
34 See Peter Schrag, Language Barrier, New Republic, Mar. 9, 1998, at 16. In the early nineteenth century, Michigan had the following law: “every township within this territory containing [fifty] families or householders shall be provided with a good schoolmaster or schoolmasters, of good morals, to teach children to read and write, to instruct them in the English or French languages as well as in arithmetic, orthography, and decent behavior.” Amy Zabetakis, Note, Proposition 227: Death for Bilingual Education, 13 Geo. Immigr. L.J. 105, 106 (1998).
35 See Joseph Santosuosso, Note, When in California . . . In Defense of the Abolishment of Bilingual Education, 33 New Eng. L. Rev. 837, 837(1999) (citing Christian J. Faltis & Sarah J. Hudelson, Bilingual Education in Elementary and Secondary School Communities 3 (1998)).
36 See Schrag, supra note 34, at 16.
37 See id.
38 See Santosuosso, supra note 35, at 837.
39 See Schrag, supra note 34, at 16 (“[Instruction in languages other than English] ended with the jingoism of World War I, when some states passed laws banning German speech, and mobs raided schools and burned German textbooks.”).
40 See Rachel Moran, Bilingual Education, Immigration and the Culture of Disinvestment, 2 J. Gender Race & Just. 163, 164 (1999).
41 See 20 U.S.C. � 7401 (2000). Not only did the Act seek to improve the academic skills of LEP students, it also recognized that using a student’s native language for instruction promotes his or her self-esteem and develops the language resources of the country. See id. � 7402(14)(A)–(C).
42 See Moran, supra note 5, at 1259–60.
43 See Castaneda v. Pickard, 648 F.2d 989, 1008–09 (5th Cir. 1981).
44 See Kirsten Gullixson, Note, California Proposition 227: An Examination of the Legal, Educational and Practical Issues Surrounding the New Law, 17 Law & Ineq. 505, 518 (1999).
45 See 42 U.S.C. � 2000a (2001).
46 Thomas Felton, Comment, Sink or Swim? The State of Bilingual Education in the Wake of California Proposition 227, 48 Cath. U. L. Rev. 843, 855 (1999) (citing 29 Fed. Reg. 16,298, 16,299 (1964)).
47 See id.
48 See John Rhee, Note, Theories of Citizenship and Their Role in the Bilingual Education Debate, 33 Colum. J.L. & Soc. Probs. 33, 34 (1999).
49 See Mass. Gen. Laws Ann. Ch. 71A.
50 See 414 U.S. 563, 563 (1974) (holding a violation of Title VI of the Civil Rights Act had occurred where schools had failed to address the needs of non-English speaking students).
51 See id. at 565–69.
52 See id. at 566.
53 See id. at 568–69.
54 See id. at 564–66.
55 See Lau, 414 U.S. at 568.
56 See id. at 568–69.
57 See id. at 564.
58 See Castaneda v. Pickard, 648 F.2d 989, 1007 (5th Cir. 1981).
59 See James Crawford, Summing Up the Lau Decision: Justice is Never Simple (Nov. 1996), at http://ourworld.compuserve.com /homepages/JWCRAWFORD/summing.htm.
60 See 20 U.S.C. � 1703 (2001).
61 See id. � 1703(f)).
62 See Castaneda, 648 F.2d at 1008–09.
63 See Serna v. Portales Mun. Sch., 499 F.2d 1147, 1153–54 (10th Cir. 1974).
64 See id. at 1148–49.
65 See id. at 1154.
66 See 521 F.2d 465, 483 (10th Cir. 1975).
67 See id. at 469.
68 See, e.g., Guadalupe Org. Inc. v. Tempe Elementary Sch. Dist., 587 F.2d 1022, 1027 (9th Cir. 1978) (rejecting students’ class action claim to compel school district to provide bilingual-bicultural education for all non-English speaking Mexican-American and Yaqui-Indian students).
69 See United States v. Texas, 680 F.2d 356, 374 (5th Cir. 1982) (granting deference to school districts in determination of education programs); Rios v. Read, 480 F. Supp. 14, 23 (E.D.N.Y. 1978) (finding district’s bilingual education program inadequate under Title VI and EEOA and ordering district to file a plan for a new program).
70 See infra notes 71–94.
71 See Plyler v. Doe, 457 U.S. 202, 202 (1982); Castaneda, 648 F.2d 989.
72 See e.g., Flores v. Arizona, 172 F. Supp. 2d 1225, 1239 (D. Ariz. 2000) (applying Castaneda test of appropriate action and finding that defendants’ LEP program violates EEOA); Teresa v. Berkeley Unified Sch. Dist., 724 F. Supp. 698, 717 (N.D. Cal. 1989) (holding that District’s ESL program did not violate the EEOA or Title VI).
73 See Castaneda, 648 F.2d at 1014–15.
74 See id. at 1006.
75 See id.
76 See id.
77 See id.
78 See Castenda, 648 F.2d at 1006–07.
79 See id. at 1014–15.
80 See id. at 1008–09.
81 See id. at 1009–10.
82 Id.
83 See e.g., Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1041 (7th Cir. 1987) (holding schools violated the EEOA by failing to provide appropriate programs for LEP students); Flores, 172 F. Supp. 2d at 1239 (finding through application of the Castaneda test that the State violated the EEOA because it did not take appropriate action to remedy language barriers); Teresa, 724 F. Supp. at 713.
84 See 457 U.S. 202, 202 (1982).
85 See id. at 221.
86 See id.
87 See id. at 206.
88 See id. at 221–22.
89 Plyler, 457 U.S. at 222.
90 See id. at 222.
91 See id. at 222–23 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)):
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right that must be made available to all on equal terms.
Id.
92 See id. at 230.
93 See id.
94 See Kronholz, supra note 2, at A2.
95 See id.
96 See id.
97 See Cal. Educ. Code � 305 (2001).
98 See Moran, supra note 40, at 171–72.
99 See Felton, supra note 46, at 863.
100 See Cal. Educ. Code � 305.
Subject to the exceptions provided in Article 3 (commencing with Section 310), all children in California public schools shall be taught English by being taught in English. In particular, this shall require that all children be placed in English language classrooms. Children who are English learners shall be educated through sheltered English immersion during a temporary transition period not normally intended to exceed one year. Local schools shall be permitted to place in the same classroom English learners of different ages but whose degree of English proficiency is similar. Local schools shall be encouraged to mix together in the same classroom English learners from different native-language groups but with the same degree of English fluency. Once English learners have acquired a good working knowledge of English, they shall be transferred to English language mainstream classrooms.
Id.
101 See id. � 320.
102 Id.
103 See id. � 325.
104 See id. �� 310–311.
105 See id. � 311 (a)-(c).
106 See infra notes 133–137.
107 See Cal. Educ. Code � 300 (1998).
The People of California find and declare as follows:
(a) Whereas, The English language is the national public language of the United States of America and of the State of California, is spoken by the vast majority of California residents, and is also the leading world language for science, technology, and international business, thereby being the language of economic opportunity; and
(b) Whereas, Immigrant parents are eager to have their children acquire a good knowledge of English, thereby allowing them to fully participate in the American Dream of economic and social advancement; and
(c) Whereas, The government and the public schools of California have a moral obligation and a constitutional duty to provide all of California’s children, regardless of their ethnicity or national origins, with the skills necessary to become productive members of our society, and of these skills, literacy in the English language is among the most important; and
(d) Whereas, The public schools of California currently do a poor job of educating immigrant children, wasting financial resources on costly experimental language programs whose failure over the past two decades is demonstrated by the current high drop-out rates and low English literacy levels of many immigrant children; and
(e) Whereas, Young immigrant children can easily acquire full fluency in a new language, such as English, if they are heavily exposed to that language in the classroom at an early age.
(f) Therefore, It is resolved that: all children in California public schools shall be taught English as rapidly and effectively as possible.
Id.
108 See infra notes 109–130.
109 See 12 F. Supp. 2d 1007, 1012 (N.D. Cal. 1998).
110 See generally id.
111 See id. at 1017–18.
112 See id. at 1019.
113 See id. at 1018–19.
114 See Castaneda, 648 F.2d at 1010.
115 See Valeria G., 12 F. Supp. 2d at 1020.
116 See id. at 1020–21.
117 See id. at 1021.
118 See id.
119 See id.
120 See Valeria G., 12 F. Supp. 2d at 1021.
121 See id. at 1023.
122 See id.
123 See id. at 1023–24.
124 See id. at 1024.
125 See Valeria G., 12 F. Supp. 2d at 1021–22.
126 See id.
127 See id. at 1027.
128 See id.
129 See id.
130 See Valeria G., 12 F. Supp. 2d at 1027.
131 See infra notes 155–165.
132 See infra notes 155–165.
133 See 75 Cal. App. 4th 196, 196 (1999).
134 See id. at 209–10.
135 See id.
136 See id. at 218–19.
137 See id. at 223.
138 See 271 F.3d 1141, 1141 (9th Cir. 2001).
139 See id. at 1148.
140 See id. at 1155.
141 See id. at 1146.
142 See id. at 1148.
143 See Cal. Teacher’s Ass’n, 271 F.3d at 1148-49 (citing Hazlewood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 260 (1988)).
144 See id. at 1149–50.
145 See id. at 1154.
146 See id. at 1159 (Tashima, J., dissenting).
147 See Scott Greenberger, Spotlight is Turned on Bilingual Education, Boston Globe, Dec. 31, 2000, at B5.
148 See generally James Crawford, Bilingual Education: Strike Two, 15 Rethinking Schools Online 2 (Winter 2000/2001), at http://ourworld.compuserve.com/ homepages/JWCRAWFORD/RS-az.htm.
149 See James Crawford, Proposition 203: Anti-Bilingual Education in Arizona, (Mar. 12, 2001) at http://ourworld.compuserve.com/homepages/JWCRAWFORD/az-unz.htm (stat-ing that, according to the Arizona Secretary of State, Unz supplied $186,886 of the $229,786 (81%) of the money to put Proposition 203 on the ballot and advertise for its passage). For a general criticism of Unz’s self-serving role in the referendum process, see Lisa Ellern, Note, Proposition 227: The Difficulty of Insuring Language Learners’ Rights, 33 Colum. J.L. & Soc. Probs. 1, 15–18(1999).
150 See Greenberger, supra note 147, at B5.
151 See Crawford, supra note 148 (explaining “that’s because large percentages of such children are currently assessed as ‘limited English proficient’”). Since the passage of Proposition 203, the Attorney General of Arizona has released an opinion stating that Proposition 203 did not apply to schools which were run by tribes or the federal government, or to public schools which instructed Native American students and which were protected by rights of tribal sovereignty or federal law. See Janet Napolitano, Re: Application of Proposition 203 to Schools Serving the Navajo Nation, I01–006, (Feb. 15, 2001) at http:// ourworld.compuserve.com/ homepages/JWCRAWFORD/I01–006.htm.
152 See Crawford, supra note 148.
153 See id. According to Crawford, Proposition 203:
* *
Prohibits any “teaching of reading, writing, or subject matter” and the use of “books and instructional materials” in a language other than English.
* * *
Restricts “waivers” of the English-only rule, for children under age 10, to those with “physical or psychological handicaps”—i.e., special education students; only for older children would schools be given flexibility to exercise their ‘informed belief’ about what’s best for the student.
* * *
Allows parental waiver requests to be denied “without explanation or legal consequence.”
* * *
Requires English learners to be reassigned to mainstream classrooms once they have acquired “a good working knowledge of English” (a standard that remains undefined).
* * *
Repeals all Arizona statutes governing the education of English language learners, including standards of student assessment, teacher training, program accountability, parental choice, and other civil rights guarantees.
* * *
Mandates English language achievement tests for all Arizona students, regardless of their English proficiency.
* * *
Invites lawsuits to enforce the initiative by any “parent or legal guardian of any Arizona school child.”
* * *
Holds educational administrators and school board members who violate the law liable for personal financial damages, which could not be paid by an insurance policy or other third party.
* * *
May never be repealed by the Arizona legislature; while amendments to “further the purposes” of the law will require a three-fourths “super Majority” vote in both houses, substantive changes will require passage of another statewide ballot measure.
* Id.
154 See Brennan, supra note 3. For the full text of the proposed initiatives see An Initiative Petition for a Law: Act Relative to the Teaching of English in Public Schools, Text of Proposed Massachusetts Initiative, at http://onenation.org/matext.htm; English Language Education for Children in Public Schools, Text of Proposed Colorado Initiative, at http:// onenation.org/cotext.htm (last visited Mar. 28, 2002).
155 See Castaneda v. Pickard, 648 F.2d 989, 1009–10 (5th Cir. 1981).
156 Id.
157 See id. at 1009.
158 See id. at 1010.
159 See Valeria G. v. Wilson, 12 F. Supp. 2d 1007, 1021 (N.D. Cal. 1998).
160 See infra notes 161–187.
161 See Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).
162 See 20 U.S.C. � 7402 (14) (2001) (stating that instruction in student’s native language increases self-esteem). See generally Rhee, supra note 48.
163 See Rachel Moran, Bilingual Education as a Status Conflict, 75 Cal. L. Rev. 321, 362 (1987) (noting that “for each side, language has become a proxy for their culture, customs, and values.”).
164 See Jill Kerper Mora, Proposition 227 Lawsuits Against Teachers Challenged—And for Good Reason!, at http://coe.sdsu.edu/people/jmora/CTA227Lawsuit.htm (Aug. 30, 2001) (stating that “morale among bilingual teachers is very low and that many feel personally and professionally threatened by [Proposition 227]”).
165 See 20 U.S.C. � 7402(14).
166 See, e.g., Jacques Steinberg, Increase in Test Scores Counters Dire Forecasts for Bilingual Ban, N.Y. Times, Aug. 20, 2000, at A1.
167 See Jill Mora, Proposition 227’s Second Anniversary: Triumph or Travesty?, at http:// coe.sdsu.edu/people/jmora/Prop227/227YearTwo.htm (Jan. 19, 2001). Reclassification refers to a student being designated as English-proficient as opposed to LEP. Id.
168 See Steinberg, supra note 166, at A1.
169 See id.
170 See id.
171 See id.
172 See id.
173 See Steinberg, supra note 166, at A1.
174 See id.
175 See Mora, supra note 167. The redesignation rate rose from 4.2% in 1990–91 to 10.3% in 1999–2000. Id. Between 1994–95 and 1995–96 the redesignation rate also grew by 2.5%; this was two years before support for the Proposition had even been initiated. Id.
176 See Steinberg, supra note 166, at A1.
177 See id.
178 See id.
179 See Tanya Schevitz, Antioch Schools Face Choice of Methods to Teach Reading Traditional Phonics vs. Whole Language, S.F. Chron., Nov. 14, 1997, at A26.
180 See Steinberg, supra note 166, at A1.
181 See id.
182 Jill Mora, What do the SAT-9 Scores for Language Minority Students Really Mean?, at http://coe.sdsu.edu/people/jmora /SAT9analysis.htm (Jan. 20, 2001).
183 See id.
184 See id.
185 See Stephen Krashen et. al., Bilingual Education in Arizona: What the Research Says, at http://ourworld.compuserve.com/homepages/JWCRAWFORD/Krashen8.htm (Feb. 17, 2001).
186 See id.
187 See Santosuosso, supra note 35, at 879.
188 See Crawford, supra note 149 (citing disclosure statements filed with the Arizona Secretary of State).
189 See John Bonifaz, Challenging Buckley v. Valeo: A Legal Strategy, 33 Akron L. Rev. 39, 47 n.34 (1999) (citing public opinion survey conducted by the Princeton Survey Research Associates on behalf of the Pew Research Center for the television series, The State of the Union). For a discussion in the rise of the influence of initiatives, see Peter Schrag, The Fourth Branch of Government? You Bet, 41 Santa Clara L. Rev. 937, 937 (2001).
190 See Bonifaz, supra note 189, at 47.
191 See Ellern, supra note 149, at 5 n.27 (“77 percent of English-language learners were eligible for free or reduced-price lunches, compared with 38 percent overall in the same schools”).
192 See Francisco Ramos, Prop.. 227 a Success in California? Don’t Believe it, Arizona, Tucson Citizen, (July 25, 2000), available at http://ourworld.compuserve.com/homepages/ JWCRAWFORD/TC4.htm (last visited Mar. 28, 2002).
193 See Deborah Escobedo, Propositions 187 and 227: Latino Immigrant Rights to Education, 26 Sum. Hum. Rts. 13, 14 (1999).
194 See Nirej Sekhon, Note, A Birthright Rearticulated: The Politics of Bilingual Education, 74 N.Y.U. L. Rev. 1407, 1415 (1999).
195 See id.
196 See Greenberger, supra note 147, at B1.
197 See Sekhon, supra note 194, at 1415.
198 See Luis Rodriguez, Note, Discretion and Destruction: The Debate Over Language in California’s Schools, 4 Tex. F. on C.L. & C.R. 189, 191–93 (1999).
199 See id. at 192.
200 See id.
201 See Cal. Educ. Code � 300(f) (2001).
202 See Catherine Johnson, Note, The California Backlash Against Bilingual Education: Valeria G. v. Wilson and Proposition 227, 34 U.S.F. L. Rev. 169, 193–94 (1999).
203 See id. at 193.
204 See id. at 193–94.
205 See Sekhon, supra note 194, at 1424.
206 See id. at 1424–25.
207 See Jeff McSwan, Arizona Should Decide School Issue, Ariz. Republic, June 12, 2000, at B7.
208 See id.
209 See e.g., Cal. Educ. Code � 320 (2001).
210 Cal. Teachers Ass’n v. Bd. of Educ., 271 F.3d 1141, 1159-60 (9th Cir. 2001) (Tashima, J., dissenting).
211 See Town’s Bilingual Classes Hailed, supra note 4, at W4.
212 See id.
213 See id.
214 See Mexican American Legal Defense and Educational Fund, Section-by-Section Analysis of Arizona’s Unz Initiative, at http://ourworld.compuserve.com/ homepages/ JWCRAWFORD/MALDEF2.htm (June, 1999).
215 See id.
216 See Brennan, supra note 3.
217 See infra notes 218–230.
218 Letter from M. Arnold Chavez, Supervisory Team Leader, Office for Civil Rights, Dept. of Education, to Dr. Russell Jackson, Superintendent, Roosevelt School District (Aug. 15, 2000).
219 See id.
220 See Roosevelt School District, Equal Educational Opportunities for All Students, OCR Draft Plan (2000).
221 See id. at 6.
222 See id. at 14.
223 See id. at 16.
224 See id. at 12.
225 See OCR Draft Plan, supra note 220, at 12.
226 See id. at 14.
227 See id.
228 See Lorry Baker & Kelly Pearce, Schools Seek Solutions to Bilingual Law, Ariz. Republic, available at http: //www.azcentral.com/community/comstories/0302wvbilingual020Z1 .html (March 2, 2001).
229 See Ryman, supra note 1.
230 See Baker & Pearce, supra note 228.
231 See Clinton Takes Stand Against Proposition 227, S.F. Chron., Apr. 28, 1998, at A18.
232 See id.
233 See Text of Address Details “Challenges, Opportunities,” Boston Globe, Jan. 16, 2002, at A10.
234 See id.
235 See id.
236 See Ron Unz, Bilingual Education Lives On, N.Y. Times, Mar. 2, 2001, at A23.
237 See Brennan, supra note 3.
238 See Cindy Rodriguez, Latinos Surge in Census Count, Boston Globe, Mar. 8, 2001, at 1A.
239 See Crawford, supra note 148.
240 See id.
241 See id.; see also Kevin Johnson & George Martinez, Discrimination by Proxy: The Case of Proposition 227 and the Ban on Bilingual Education, 33 U.C. Davis L. Rev. 1227, 1275–76 (2000) (arguing that Proposition 227 discriminates against individuals of Mexican descent in violation of the Equal Protection Clause).
242 See David Broder, Joining Hands for School Reform, Wash. Post, Jan. 28, 2001, at B07.