Bilingual Suit Tests Pupils' Rights

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In the wake of the expiration of California's bilingual-education law, a federal suit is seeking to test the adequacy under U.S. civil-rights laws of the Berkeley school district's program for limited-English-proficient students.

Besides helping to clarify the obligations of the state's schools to lep children in the absence of the controversial law, the suit could set an important precedent nationally.

Experts note that U.S. District Judge D. Lowell Jensen of San Francisco, who will hear the case, has indicated that he may order "compensatory relief" in the form of private tutoring if he determines that students have suffered academic setbacks under Berkeley's bilingual-education program.

"That hasn't been said before," according to Roger Rice, executive director of Multicultural Education Training and Advocacy Inc., a legal-advocacy group.

Judge Jensen hinted he was eyeing such a remedy in a memorandum on procedural issues in the suit. The plaintiffs, if successful, would not be eligible for monetary awards, he said, but could receive tutoring as "an essential corrective remedy."

The judge lifted a six-week stay in the case Oct. 14 and ordered lawyers to proceed to the fact-finding stage.

"We want to send a message to school districts across the state that the demise" of California's bilingual-education law "doesn't end their obligation to serve lep kids," said Peter Roos, a meta lawyer representing 15 Hispanic students on whose behalf the suit was filed.

Last summer, Gov. George Deukmejian vetoed a compromise bill that would have extended the law, considered the most comprehensive statute of its kind in the country. The expiration of the law on June 30 effectively removed the rules governing the use of state aid for teaching lep pupils.

Deficiencies Alleged

The plaintiffs in the suit, Teresa P. v. Berkeley Unified School District, cite what they say are deficiencies in the procedures the district uses to identify, place, and provide services for lep pupils, and to assess their readiness to leave bilingual classes.

Such shortcomings, they contend, violate the Equal Educational Opportunities Act and Title VI of the Civil Rights Act of 1964, which bars discrimination based on race, color, or national origin in federally funded programs.

"The district's attempts to provide appropriate programming to these students have been, at best, superficial and preordained to failure,'' the complaint says, "as a result of the district's refusal to expend adequate resources, materials, personnel, and expertise on these programs."

The complaint recounts instances in which lep students are alleged to have suffered undue difficulty in school because of inadequate services or assessments. It charges that the district has undercounted the number of such students, and it criticizes the quality of both native-language instruction and alternative measures now used to serve the 644 pupils identified as lacking English proficiency.

The suit was filed last May, in an8ticipation of Governor Deukmejian's veto, but Judge Jensen granted a stay sought by the school district to give the state time to review the Berkeley program under new criteria set following the law's expiration.

In an earlier audit while the law was still in effect, the state found the district out of compliance on 25 items and suspended its bilingual-education funding from April to July of this year. After a preliminary review of some schools in June, state education officials decided that the schools were "essentially in compliance" with the law.

They recommended that the state board of education renew funding until the state could conduct a more extensive review under the revised monitoring rules, according to Wade Brynelson, the education department's assistant superintendent for compliance and consolidated-programs management.

Judge Jensen lifted the stay even though the state does not expect to complete the fuller review until later this year.

District's Defense

Meanwhile, officials of the Berkeley school system are defending their efforts to serve lep children.

School officials have taken corrective action to address the deficiencies noted in the earlier compliance review, said Celia Ruiz, a lawyer representing the district, and they "will continue to operate as if the old law was in effect."

She characterized the district's program as "perfectly acceptable pedagogically" under the expired state law, and noted that the statute's requirements had "far exceeded" the broad guidelines laid out in federal civil-rights statutes.

California education officials point out that while the expiration eliminated specific program requirements for bilingual education, the program's funding and eligibility criteria remain intact.

Instead of setting out a checklist of rules to gauge districts' compliance, says an Aug. 26 program advisory from the department, the state's new monitoring criteria require districts to state how their plans meet the "intended purposes" of the state program and the relevant federal statutes.

Although the new guidelines allow for greater flexibility, districts that adhere to the policies deemed acceptable before the expiration are the most likely to remain in compliance, said Joseph Symkowick, chief counsel for the education department.

Only "those districts who say they want something totally different'' will face the risk of legal challenges or unfavorable compliance reviews, he said.

Mr. Roos, the meta lawyer, noted that although the suit contests practices already in place when the California law was still in effect, it is predicated on federal rather than state law.

The case could be a "harbinger" of a new series of legal battles over the rights of lep pupils, he suggested.

"It is not at all unlikely that, because of the lack of guidance from state law and the political momentum against programming for bilingual and immigrant children, a lot of school districts are likely to resort to less than adequate programs" for such students, Mr. Roos said.

Any scaling back of efforts to help lep pupils, he said, would necessitate more litigation and local pressure "to hold districts' feet to the fire."

Vol. 07, Issue 08

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