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E.D. Drops Effort To Redefine Term In Bilingual Law

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Washington--The redefinition of transitional bilingual education, a key objective of Secretary of Education William J. Bennett's bilingual-education initiative, is prohibited under current law and may be unnecessary, the department's chief attorney told the Secretary in a memorandum three weeks before his recent policy address on the issue.

Nevertheless, Undersecretary Gary L. Bauer said at a briefing shortly after Mr. Bennett's Sept. 26 speech in New York City that the Education Department would seek to "broaden the definition" of transitional bilingual education to give districts more leeway in the amount of native-language instruction they provide limited-English-proficient (lep) students.

"My use of the word 'definition' might have been ill-phrased," acknowledged Mr. Bauer in an interview last week. He said the department would obey the law and instead publicize other ways in which districts can perhaps lessen the amount of native-language instruction provided to lep students.

The Sept. 6 memo, obtained by Education Week, said a new definition might be unnecessary because districts already have "considerable discretion" under current law. The memo was initialed by the general counsel, Maureen E. Corcoran, and addressed to Wendell L. Willkie 2nd, Mr. Bennett's chief of staff.

In his Sept. 26 speech, Mr. Bennett asserted that federal bilingual-education policies had failed, and he announced the department's intention to seek regulatory and legislative changes to inject more flexibility into the programs.

Mr. Bauer, who elaborated on the Secretary's initiative at a briefing here shortly after the speech, criticized what he said was the department's emphasis on native-language use in transitional classes. "We will do our utmost to build as much flexibility into the programs as possible through regulations," he said.

"Our regulations give a very restrictive definition of transitional bilingual education," he said at the briefing. "We're going to attempt through these [new] regulations to broaden that definition so that school districts know that even though they must use the instruction in the home language, they have some flexibility in deciding how much instruction in the home language they have to utilize."

The department's current definition of transitional bilingual education, however, is the one contained in the Bilingual Education Act of 1984. The definition was included in a Federal Register notice to grant applicants published early this year.

According to the Bilingual Education Act, a "program of transitional bilingual education" provides "structured English language instruction, and, to the extent necessary to allow a child to achieve competence in the English language, in-struction in the child's native language."

"The Secretary shall not prescribe ... any regulations further defining the terms," the act says, "or any regulations further restricting or expanding the definitions contained in such paragraphs."

Counsel's Advice

According to the memo from Ms. Corcoran, "The statute prohibits the Secretary from further regulating the statutory definition of the programs of transitional bilingual education, which includes the provisions on native-language instruction."

"Therefore," the memo continues, "ed should not issue proposed or final regulations that further define the extent of native-language use required in transitional bilingual-education programs."

"We believe that the most appropriate approach to inform the public of flexibility in the statutory definition would be to address the issue by way of guidance in the preamble to the final regulations in response to any relevant comment received from the public," Ms. Corcoran's memo advised the Secretary's office.

Mr. Bauer last week conceded that language in the preamble of new regulations, which department officials are now drafting, would be the likely vehicle to emphasize that school districts can exercise considerable judgment in the use of lep students' native languages.

Ms. Corcoran's memo supports the contention of some local bilingual-education officials that a new definition may also be unnecessary.

"The statutory language and the legislative history permit local educational agencies to exercise considerable discretion on the extent of native language use in the programs," the memo says.

In a recent interview, Dale W. Vigil, director of bilingual education for the Denver public schools, said districts know they have options under the rubric of transitional bilingual education. The term is "broad enough," he said, "so that school districts have the latitude to implement many kinds of programs."

While Mr. Vigil and other local officials have criticized Mr. Bennett's initiative, many national leaders have praised it, most recently Albert Shanker, president of the American Federation of Teachers.

Mr. Shanker used his weekly column, which appears as a paid advertisement in many newspapers, to laud the Secretary and criticize the federal law that mandates the use of the transitional method.

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