Introduction

Modeled on the controversial and divisive Proposition 227, an effort to eliminate bilingual education and other existing language development programs in California, English for the Children - Arizona has filed an initiative entitled "English Language Education for Children in Public Schools." The initiative, filed on January 6, 1999, seeks to eliminate all existing English language development programs, which serve 112,522 Limited English Proficient (LEP) children primarily through bilingual education and English as a Second Language (ESL) programs, and to replace them with a single state-wide program consisting normally of a single year in English-only immersion classrooms. To place the initiative on the ballot for the November 2000 general election, English for the Children - Arizona must obtain 101,762 signatures from registered voters by July 6, 2000.

Maria Mendoza and Hector Ayala direct the campaign to qualify the initiative. Ms. Mendoza, a Tucson resident who over 20 years ago had three years of bilingual education classroom experience as a teacher's assistant, is a long-time opponent of bilingual education. Mr. Ayala, who holds a college degree in English for secondary education and has completed some graduate study in bilingual education and ESL, has taught English at Cholla High School in Tucson for approximately twelve years. Ron Unz, the multimillionaire software developer from California's Silicon Valley, who underwrote much of the campaign to pass Proposition 227, has agreed to support the campaign in Arizona. Mr. Unz has no background in education whatsoever. Indeed, throughout much of the campaign in California, he admitted that he had never even set foot in a bilingual education classroom.

Under the initiative, all LEP children in Arizona public schools would be placed, normally for only one year, in English-only immersion classrooms, where English would be the exclusive language of instruction. This lone program, focused single-mindedly on English proficiency to the detriment of other core academic subjects, would replace all existing language development programs developed by local districts and schools with the dual goal of enabling students to become proficient in English and to succeed in all academic subjects. Under Arizona's current system, most of the students in these programs receive little or no instruction in their primary language, as the great majority are not in bilingual education, and all of them, including those in bilingual education, receive instruction in English from day one. No program, however, is based on the educationally unsound premise that students can become fluent in English in one school year. Under the initiative, parents would be allowed to apply for waivers from its one-year, English-only immersion program under extremely narrow circumstances, and school administrators would have complete and unreviewable discretion to deny such requests. Accordingly, parents would lose the right they currently enjoy to decide how their children should be educated and how their children's English proficiency should be developed.

Arizona used a similarly structured program for nearly fifty years, but abandoned the failed program more than thirty years ago. The program, like the one proposed by the initiative, required English learners of all ages to be placed in segregated classrooms for one year before they were placed in mainstream classrooms, restricted the use of their native language, and utilized teachers with no training or background in language development. Its failure to teach LEP children proficiency in English and to prepare them for academic success prompted calls for the creation of language development programs designed to meet their particular educational needs. Thus, the initiative would effectively turn back the clock and return Arizona's LEP children to a failed and destructive program.
 

Section 1: Findings and Declarations

The initiative finds that English is "the national public language" of the United States and of Arizona as well as the language of "economic opportunity," and that immigrant parents are eager to have their children acquire "a good knowledge of English" to allow them to fully participate in the "American Dream of economic and social advancement."

The initiative states that Arizona public schools have "a moral obligation and a constitutional duty" to provide all of Arizona's children "with the skills necessary to become productive members of society" and that literacy in the English language is among the most important of these skills. The initiative claims, however, that the public schools inadequately educate 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."

The initiative declares that young immigrant children can easily acquire "full fluency" in English if they are "heavily exposed" to it in the classroom at an early age, and mandates that all children in Arizona public schools be taught English "as rapidly and effectively as possible."

Analysis

1. English is the national public language, but a meaningful education requires full proficiency in English and other subjects; the initiative promotes proficiency in neither. No one could dispute that English is the national public language of the United States or that fluency in English significantly promotes social advancement and economic opportunity. Immigrant parents, like all parents, want their children to participate in the American Dream, and therefore want their children to master the English language.⁽¹⁾

The initiative, however, fails to establish academic fluency in English as a goal, instead settling merely for "a good working knowledge of English" and the ability "to do regular school work in English." These vague standards would not promote English fluency, let alone the English fluency needed to gain a quality education. The current law sets academic fluency as the goal, requiring that students have the English language skills to be able to succeed in school. See Ariz. Rev. Stat. § 15-753(C)(1).

The initiative's low standards, which would invite low expectations, are hardly surprising. The initiative unreasonably limits its immersion program to a single school year, even though there is no basis to believe that all or most children can achieve fluency within one year, regardless of age, prior schooling, or exposure to English. The instruction provided in the immersion classrooms would therefore have to consist of a simplistic form of English and non-verbal teaching techniques to be comprehensible to all English learners. Children in these classrooms would, at best, develop some oral proficiency in a "me-Tarzan, you-Jane" English, but not full proficiency in academic English. The initiative would therefore fail to equip LEP children with the language skills necessary to succeed in school and become productive members of our society.

The initiative, moreover, focuses exclusively on English language instruction, which cannot by itself provide meaningful access to social and economic opportunities. It completely disregards and compromises education in other core academic subjects, such as math, science, history, and civics. Instruction in these subjects, if any, would not be at grade level; it would have to be dramatically simplified in language and content in order to be intelligible to children who do not understand English. However, immigrant parents, like all parents, want their children to learn and to excel in these academic subjects because together they provide opportunities for advancement in science, technology, government and business.

The initiative's one-year, English-only immersion classrooms would thus not only fail to make LEP children fluent in academic English but also deprive them of meaningful access to a full education. As a result, a widening learning gap would undoubtedly develop between LEP children -- exposed to a limited and superficial curriculum -- and their native English-speaking counterparts -- taught the curriculum at the appropriate grade level. Indeed, the California State Board of Education has admitted that LEP children will need remedial programs to make up the deficits they will develop under the California initiative's immersion program.⁽²⁾ The deficits would likely only continue to grow irremediably when LEP children enter mainstream classrooms lacking sufficient English proficiency to understand their course work and lacking an appropriate foundation in the core curriculum.

That's why leaders such as the Governor and the Superintendent of Public Instruction have already come out against the initiative, and the Governor has stated she fears it would be "destructive."⁽³⁾

2. Bilingual education programs have been successful; the initiative's sheltered immersion program, by contrast, is untested and unproven. The duty to educate children encompasses imparting full proficiency in the English language and in other core academic subjects. The language development programs eliminated by the initiative strive to teach children academic English proficiency without sacrificing their ability to learn other essential subjects.⁽⁴⁾ Notably, the overwhelming majority of LEP students today are not in bilingual education programs; only a little more than a third of all LEP children are, and those children all receive, from the very beginning, a certain amount of instruction in English, with the amount increasing significantly over time to develop students' proficiency in English.

Contrary to the initiative's claims, the existing language development programs are not "experimental." For example, research has documented the success of bilingual education programs, and shown that primary language instruction does not impede acquisition of English.⁽⁵⁾ In fact, research has found that students with a strong academic background in their first language are more likely to develop high levels of English proficiency than those who do not,⁽⁶⁾ and more important, that LEP students placed in programs similar to those mandated by the initiative gain English proficiency at a lower rate than students who receive some primary language instruction.⁽⁷⁾

Ironically, in proposing to eliminate what it deems an experimental approach, the initiative substitutes a truly untested and unproven alternative. The one-year, English-only immersion program mandated by the initiative does not correspond with the programs currently described in the educational literature and finds no support in that literature. Significantly, sheltered English or immersion classrooms, as those terms are used by experts in the field, are generally intended for intermediate level LEP children in the process of making the transition from bilingual to mainstream classrooms; they are not, however, intended to last only for one year or to be the sole source of English language development. Moreover, while immersion programs typically are conducted almost exclusively in English, the teachers are bilingual; consequently, the teacher is able to, and in fact does, speak the students' native language when necessary to clarify or supplement a lesson.

3. If anything, the initiative would blindly ignore the mistakes of the past and take Arizona back to a failed program. The initiative's one-year, English-only immersion program resembles a program that has already been used extensively in Arizona and elsewhere and has proven a disastrous failure. For nearly half a century, from 1919 to 1967, schools in Arizona used a program known in some school districts as 1-C. It was structured in much the same way as the initiative's program. Students of all ages who did not speak English were placed in segregated classrooms, where they were immersed in the English language. Placement in these classrooms was generally intended to last for one year, and students were then transferred to mainstream classrooms. Teachers in the immersion classrooms were neither bilingual nor specially trained in the education of English learners.

The results of the 1-C program were devastating. Latino students suffered the brunt of its harmful effects, as they were often indiscriminately shunted into the program. During the program's existence, they graduated high school at disastrously low rates, undoubtedly as a result of having fallen behind grade level during the immersion program and having learned insufficient English to be able to succeed in later years. The failure of the 1-C program prompted the creation and implementation of language development programs specifically designed to meet the needs of English learners.

Ignoring the lessons of the past, the initiative would effectively take Arizona back to a time when the educational needs of English learners went unrecognized, and these children were effectively forced to shoulder the burden of acquiring English fluency on their own.

4. The initiative's assertions regarding existing programs are unsupported. The initiative's claims regarding the failure of the existing language development programs are premised on unfounded allegations. Arizona does not, as the initiative suggests, compile drop-out rates for LEP students; the state determines drop-out rates by race/ethnicity but not by language. Arizona, moreover, does not track the scores of LEP students after they become English proficient and are transferred to mainstream classrooms. Accordingly, no claims can be made about the literacy or academic levels achieved by English learners after they have completed a language development program. Although Arizona does compile reading and language scores for LEP children on standardized tests, these tests at best provide some measure of English fluency but not literacy levels. Spanish-speaking LEP students, when tested in a language they understand, scored at the 47th percentile in reading, a score comparable to that posted by students with a primary home language of English on the English reading test. Superintendent's Report at 15-16. Thus, children in bilingual education can, and do, develop language skills - skills which the standardized tests in English cannot measure but which research has shown can be applied to the acquisition of English literacy.⁽⁸⁾

5. The initiative may violate federal law by denying LEP children an equal education. By failing to provide LEP children with the language skills necessary to enjoy meaningful access to an education, the initiative may violate federal law.⁽⁹⁾ Title VI of the 1964 Civil Rights Act and its implementing regulations prohibit states from adopting educational practices that have a discriminatory intent or effect. The United States Supreme Court, applying this standard, has held that "[t]here is no equality of treatment merely by providing students with the same facilities, textbooks, teachers and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education." Lau v. Nichols, 414 U.S. 563, 566 (1974). Here, the one-year transitional immersion program prescribed by the initiative can provide LEP children with only the most basic English language instruction, a level of instruction so rudimentary that it effectively forecloses them from any meaningful education in that year and beyond. The consequences of violating federal law in this manner could include a total loss of federal funding for education in the state. For the 1996-97 school year, federal funding to Arizona public schools totaled approximately 300 million dollars.
 

II. Section 2: Repeal of Existing Law
The initiative repeals Title 15, chapter 7, article 3.1, the provisions detailing the Bilingual Education and ESL Programs to be provided to LEP students. Ariz. Rev. Stat. § 15-751 to -756.

Analysis

1. The initiative seeks to eliminate the existing language development system and substitute one that is poorly and vaguely described; the initiative therefore would require significant development before its implementation. The initiative repeals all existing law regarding language development programs. However, it fails to provide any guidance with respect to many vital issues currently addressed by Arizona statute and regulation, such as the procedure and criteria for determining English fluency, and the training and experience of language development teachers. Instead, the initiative uses several vague and undefined terms, such as a "minimal amount of the child's native language when necessary" and "a good working knowledge of English," without providing any standard to flesh out their meaning or guide their implementation. As a result, the initiative would require significant explanation and development prior to its implementation. The upheaval caused by the initiative would thus be even greater than in California, where there was no repeal of existing law, which could therefore be used to fill in the significant gaps and ambiguities in the initiative.
 

III. Section 3: Amendments to Title 15, chapter 7, article 3.1

A. Section 15-752: English Language Education
The initiative mandates that all children be "taught English by being taught in English" and be placed in classrooms in which "English is the language of instruction." English learners are to be taught in "sheltered English immersion" classrooms for "a temporary transition period not normally intended to exceed one year." Having acquired "a good working knowledge of English" and become "able to do regular school work in English," their instruction is thereafter to be conducted in mainstream English language classrooms.

The initiative requires that teachers possess "a good knowledge of the English language" and conduct "nearly all" instruction in English. In the immersion classrooms, teachers are permitted to use "a minimal amount of the child's native language," but only "when necessary." No subject matter, however, is to be "taught" in any language other than English.

The initiative not only permits placement of English learners of different ages and grade levelsin the same classrooms, but also encourages mixing of English learners of different native-language groups.

The initiative requires that, to the extent possible, current supplemental funding levels for LEP students be maintained.

Analysis

1. The initiative dictates a single program for all school districts, eliminating local control over implementation of the most effective program available. The initiative's "one size fits all" approach ignores the various factors bearing on a child's ability to learn English (e.g., age, prior schooling, literacy) and completely eliminates local control over English language development programs. Consistent with federal requirements, existing Arizona law aims to enable students "to become proficient enough in English to succeed in classes taught in English." Ariz. Rev. Stat. § 15-752(B) (emphasis added). To achieve this aim, it affords school districts several different language development program options, including "transitional bilingual," "secondary bilingual," "bilingual-bicultural," ESL, and individual education programs. Ariz. Rev. Stat. § 15-754. The initiative eliminates all these choices, and prevents local schools and districts from determining how best to meet the needs of their LEP students.

2. LEP students cannot become sufficiently fluent in English in one year to participate successfully in the curriculum; the initiative would therefore increase the number of students placed in remedial courses or held back in school, and the risk of referrals to special education classes. It is unreasonable to expect that LEP children can attain the level of fluency necessary for full participation in the academic curriculum after a single school year, or approximately 175 days. Research shows that students need three or more years to become sufficiently fluent in English to participate successfully in an English-only curriculum.⁽¹⁰⁾No language development program, even those most closely resembling the initiative's immersion program, successfully transfers LEP children to mainstream classrooms after a single year. Indeed, Gloria Matta Tuchman, a school teacher who taught LEP children in an immersion program and chaired the California campaign for Proposition 227, was unable to teach any of her students to be fluent in English within one year. There is simply no evidence to support the initiative's inflexible one-year program.

Because LEP children will fail to develop grade-level reading and writing skills, large numbers would likely be required to take remedial courses or repeat a grade, and some would undoubtedly quit school. Moreover, LEP children would be more likely to be placed in special education programs as their low achievement is mistakenly diagnosed as a learning disability or some form of emotional disturbance. Indeed, over the past three years, the number of children referred to special education classes has doubled at the Ninth Street elementary school, a school touted by the California campaign for its community boycott of bilingual education.⁽¹¹⁾

3. The initiative provides no procedure or standard for determining English proficiency and eliminates parental input into the decision. The initiative provides no process or criteria for determining whether a child has gained sufficient fluency in English to be placed in mainstream classrooms, and affords the child's parents no input regarding that determination. Instead, it simply calls for educating LEP children through sheltered English immersion classrooms for a single year, equipping them only with "a working knowledge of English," and then "normally" transferring them to mainstream classrooms without regard to their English proficiency or their parents' wishes.

Currently, the goal of language development programs is full academic fluency. LEP children are tested at least once every two years to determine if they "have developed the English language skills necessary to succeed in English only instruction." Ariz. Rev. Stat. § 15-753(C)(1) (emphasis added). The extensive reclassification criteria include: a teacher evaluation of the child's proficiency in English and "an assessment of the child's readiness to succeed in an English language course of study"; an objective assessment of the child's oral proficiency, writing and reading skills in English; and parent opinion and consultation. Ariz. Rev. Stat. § 15-753(C)(2). Parents must be notified when a child is being considered for reassessment to give them "the opportunity to review [their child's] performance and to provide input into the reclassification decision." State Bd. of Educ. R7-2-306(G)(3)(b).

The initiative would eliminate the comprehensive assessment system now in place, but provide no procedure or standard for measuring whether fluency has been achieved, and offer no opportunity for parental input. These glaring omissions highlight not only how poorly drafted the initiative is, but also how unworkable it would prove.

4. The initiative provides no standards for teachers, all of whom will be faced with teaching students who lack English proficiency. The initiative fails to provide any requirements for teacher preparation, training, experience or certification. It requires simply that teachers have "a good knowledge of the English language," without specifying that they have any specialized background in the instruction of LEP children. This failure would gravely affect LEP children not only during the transitional immersion year, but also in subsequent years, as they find themselves in mainstream classrooms without having attained English proficiency. It is difficult to imagine how teachers, particularly when untrained and inexperienced in developing language proficiency, could possibly address the needs of LEP children of varying levels of English proficiency and limited access to the curriculum while at the same time instructing native-English speakers at grade level. Both LEP and English-speaking children would lose out in this equation.

By contrast, the state currently requires that bilingual and ESL teachers hold endorsements requiring specialized training and experience in language development. State Bd. of Educ. R7-2-613. The endorsement for bilingual teachers, for example, requires, in addition to a teaching certificate, completion of a bilingual education program or specified course work, two years of verified bilingual teaching experience, and demonstrated proficiency in a language other than English. State Bd. of Educ. R7-2-613(H)(4).

By disregarding the importance of having teachers with training and experience in working with LEP children, the initiative completely ignores the particular instructional needs of LEP children, who are struggling to learn a new language as they learn new subject matter.

5. The placement of children of different native languages and of different ages and grades is not conducive to orderly and effective instruction. The placement of LEP children with different native languages in the same classrooms would impede their ability to learn effectively. Because teachers undoubtedly would not be able to speak the various native languages of all their students, communication between teachers and students would prove difficult. Even if teachers were to speak the primary language of some of their students, moreover, the initiative confusingly provides that teachers may only use a minimal amount of primary language when "necessary," but not when teaching a subject -- precisely when it would be most needed. Currently, English language development classrooms are structured so that teachers or their assistants can communicate with children in their native languages. Language barriers therefore do not now interfere with the students' academic progress, as they inevitably would in the initiative's English-only classrooms, where some class time would have to be devoted to repeating and clarifying lessons taught in a language the children do not understand.

Likewise, the placement of LEP children of all ages and grades in the same classrooms would hamper their educational progress. There is no educationally sound reason for placing children who differ in age, maturity and cognitive development in a single classroom. All children placed in such a classroom would suffer: the young because too much would be asked of them, and the old because too little would be required of them. More important, because instructional materials for all subjects differ by grade level, the placement of children from widely varying grade levels in the same classrooms would ensure that the instruction and course work in immersion classrooms would be limited to learning English. LEP children, lacking meaningful instruction in other academic subjects, would therefore fall behind their English-speaking counterparts, who would be taught the entire curriculum and not simply English.

6. The initiative would not result in cost savings, but would impose additional costs. By its terms, the initiative preserves current supplemental funding levels for LEP children, and therefore would provide no cost savings. The initiative, however, would impose additional costs on local schools and districts. The initiative would require the purchase of new textbooks, the development of a new curriculum, and the implementation of a new program of professional development for teachers and administrators. In addition, the initiative would force schools to offer substantial additional remedial programs to address the deficits developed by LEP children placed in English-only immersion classrooms. The initiative, moreover, would place additional administrative burdens on local school districts. The waiver process would require not only that schools meet with parents and provide them with a description of the different educational program options available, but also that principals and education staff determine whether the complicated eligibility criteria have been satisfied and, in the case of "special needs" children, prepare written descriptions of their needs. These time-consuming tasks are not currently performed by already heavily-burdened administrators and staff.

B. Section 15-753: Parental Waivers
The initiative permits parents to request a waiver of its requirement that LEP students be instructed in sheltered English immersion classrooms. There are, however, several significant restrictions. First, a parent must personally visit the school to apply for the waiver and must make a request annually in writing. Second, a parent may only apply for a waiver if the child falls within one of three narrowly-defined categories:

1) the child already knows English, scoring at or above the state average for his or her grade level on standardized tests of English vocabulary, comprehension, reading, and writing, or scoring at or above the 5th grade average, whichever is lower;

2) the child is 10 years old or older, and the school principal and educational staff believe that an alternate program would better suit "the child's overall educational progress and rapid acquisition of basic English language skills"; and

3) (a) the child has already been placed for at least 30 days in an English-only classroom, (b) the school principal and educational staff believe that (i) the child has "special and individual physical or psychological needs, above and beyond the child's lack of English proficiency," and that (ii) an alternate program would better suit the child's overall educational development and rapid acquisition of English, (c) a written description of no less than 250 words detailing these needs is prepared and permanently added to the child's official school records, and (d) the waiver application contains the signatures of both the school principal and local school superintendent.

If 20 or more students in the same grade have been granted waivers, the initiative requires that the school provide bilingual education or other language development classes. In all other cases, the initiative requires that students granted waivers be permitted to transfer to a public school offering the classes.

Analysis

1. The initiative eliminates the right of parents to decide how their children are educated. The initiative eliminates parental control over the decision whether to place a child in a language development program. It severely limits eligibility for a waiver to three narrowly-defined exceptions. The first exception is illusory; it applies to children who are already fluent in English. The second exception is the only viable option for parents seeking a waiver. However, it applies only to children who are at least ten years old, and therefore would exclude the majority of LEP children.⁽¹²⁾ The third exception is also illusory; it applies only to those children requiring special education services. In this regard, the initiative is much less flexible and significantly more severe than the California initiative, which permitted waivers for children of all ages with "special physical, emotional, psychological, or educational needs," and thereby provided a somewhat more viable option for children under ten years of age. Thus, the Arizona initiative would effectively limit waiver eligibility to those few children who are over ten years of age and who would, in the opinion of the school principal and staff, be better suited by an alternate language development program.

The burdensome application process and the complicated eligibility requirements, furthermore, would ensure that only an extremely limited number of eligible parents would even apply for a waiver. Parents with their own limited English proficiency would find it especially difficult to maneuver their way through this complicated process.

More important, even if a parent were to apply for a waiver on behalf of an eligible child, the initiative provides schools and districts with unfettered discretion to deny an application. Rather than provide that waivers must be provided under the specified circumstances, the initiative states only that schools and districts may waive its requirements. Moreover, the initiative explicitly requires the concurrence of the school principal and educational staff under the second and third exceptions. The initiative, however, specifies no guidelines for determining whether the second exception applies and provides no appeal process. Although the initiative provides for the development of guidelines for making determinations under the third exception, it again provides no appeal process. It further insulates these decisions from review by permitting waiver requests to be rejected without explanation and without legal consequence.

Existing law, by contrast, provides parents with control over how their children are to be educated. Student placement in any program of bilingual or ESL education has been voluntary and required parental notification. Parents who did not wish their child to participate in such a program simply provided a written notice to the principal. Ariz. Rev. Stat. § 15-752(C).

Recent amendments, signed into law on May 17, 1999, have further strengthened the rights of parents, providing them with the information necessary to make an informed decision and specifying the time period in which schools must act on parents' wishes.⁽¹³⁾ Schools now must notify parents of their children's recommended program placement, and supply a description of that program, including the amount of instruction to be provided in English, as well as a description of the other programs offered by the school district. Ariz. Rev. Stat. § 15-752(C)(2-4). Schools must also provide a comparison of their children's reading, writing and oral scores with those required for English proficiency, and information on how to request a meeting with school staff to review their children's academic progress or English proficiency. Ariz. Rev. Stat. § 15-752(C)(1, 8). Finally, schools must furnish parents with directions on how to exclude their children from a program, and must remove children within 5 days of receiving a request for withdrawal. Ariz. Rev. Stat. § 15-752(C)(6), (D). After receiving the parental notification form, parents choose whether their children are to be placed in a bilingual education program, an ESL program or no program by signing the form and submitting it to the school. Ariz. Rev. Stat. § 15-752(E).

Thus, the initiative would eliminate the right of parents to decide whether to place their child in a language development program. Instead, it mandates that all children be placed in English-only classrooms, severely limits the number of children eligible to request an alternate program, and vests schools and districts with unreviewable discretion over such requests.

2. The initiative's exception for children with special needs may contravene state law concerning children with disabilities. The initiative's third exception -- for children with "special needs " -- may violate Arizona's special education provisions. See Ariz. Rev. Stat. § 15-761 et seq. Under the initiative, even if a child has special physical or psychological needs, the child must spend at least thirty days each school year in an English-only immersion classroom, one which is not suited to his or her special needs. State law requires, however, that children be evaluated to determine their particular capabilities and limitations, Ariz. Rev. Stat. §15-766, and if found to have a disability, that they be provided with special education services to address their needs, Ariz. Rev. Stat. § 15-763. By delaying the requisite assessment and placement of children with disabilities, the initiative may violate these provisions, and may similarly violate federal law designed to protect the rights of children with special education needs.

3. The initiative does not guarantee that a child granted a waiver will be placed in a non-English-only classroom. Even if a waiver were granted to a child, there is no guarantee that he or she would be placed in an alternate non-English-only language development program. If a school had granted waivers to 20 or more students in the same grade, it would be required to offer such a program. (The unfettered discretion granted to school administrators means that they could arbitrarily prevent the 20-waiver threshold from being exceeded, and many would be tempted to do so to avoid the cost of providing alternate programs.) If the 20-waiver threshold had not been exceeded, however, the school would only be required to allow students to transfer to another school offering the program. Depending on where the alternate school is located, this option could impose a heavy burden on families with already limited resources, and prevent students from transferring to a school where they can receive the language development services to which they are entitled.

C. Section 15-754: Legal Standing and Parental Enforcement
The initiative provides that any school board member or other elected official or administrator who willfully and repeatedly refuses to implement its terms may be held personally liable for attorney fees and actual and compensatory damages. Further, the initiative dictates that any individual found liable may not be indemnified by any public or private third party, and must not only be removed from office but also barred from holding any position of authority anywhere within the Arizona public school system for five years.

Analysis

1. The initiative's drastic step of holding administrators and officials personally liable may violate state law and the Constitution. The initiative takes the unprecedented step of exposing education officials and administrators to personal liability for adopting a particular teaching methodology or curriculum. They have never been burdened with the threat of liability if the programs they implement meet with the disapproval of any parent.⁽¹⁴⁾ School board members, for example, have always exercised flexibility in implementing teaching practices, and as elected officials, they have always had to choose practices that met the particular needs and standards of the local community.

The initiative may violate Arizona law concerning the liability of state employees by making school board members and other elected officials and administrators personally liable, and preventing their indemnification, for violations of the initiative. Arizona law provides that a state employee is not personally liable "for any injury or damage resulting from his act or omission in a public official capacity where the act or omission was the result of the exercise of the discretion vested in him if the exercise of the discretion was in good faith without wanton disregard of his statutory duties." Ariz. Rev. Stat. § 41-621(J). It further provides that the state shall pay, on behalf of its employees, any non-punitive damages for which the employee becomes liable "if the acts or omissions resulting in liability were within the . . . employee's course and scope of employment." Ariz. Rev. Stat. § 41-621(P). The initiative therefore may violate these provisions by exposing certain state employees, such as school administrators, to personal liability and prohibiting their indemnification.

The initiative may also violate the United States Constitution by barring school board members and other elected officials and administrators who violate the initiative from holding "any position of authority" within the school system for five years. While a state has the right to impose neutral candidacy requirements, such as age or residence, it may not impose unreasonable and discriminatory limits on the First and Fourteenth Amendment rights of voters and candidates. See Burdick v. Takushi, 504 U.S. 428, 434 (1992). The initiative's five-year ban may constitute a restriction that impermissibly discriminates against a particular class of candidates, namely those officials who had previously refused to implement the initiative, and the voters who support them and their views.

D. Section 15-755: Standardized Testing for Monitoring Education Progress
The initiative requires that "a standardized, nationally-normed written test of academic subject matter" be administered at least once a year to all public school children to monitor "educational progress." It further provides that the scores for "limited-English" students are to be separately compiled and made publicly available.

Analysis

1. The initiative inexplicably requires a test of all students based on national education standards, and not state standards. The initiative, while dealing exclusively with LEP students, requires testing of allstudents to monitor educational progress. The test prescribed by the initiative, however, is not designed to monitor the effectiveness of the initiative's immersion program. Moreover, the initiative requires administration of a nationally norm-referenced test, or a test based on national standards regarding subject matter and content. Many states have developed, or are in the process of developing, their own particular education standards, based on the material their citizens believe their children must master in school, and their own tests, known as criterion-referenced tests, to measure the extent to which children have learned the material they have been taught. Should the people of Arizona establish their own state education standards and develop their own tests based on those standards, those tests would not satisfy the initiative. For some reason, the initiative requires a test for all students based on national standards, even though those standards may in no way reflect the education standards established by the people of Arizona and the material taught to their children.

2. The initiative does not provide any procedure to monitor its proper implementation. The initiative does not provide any method for ensuring that its immersion program is properly and uniformly implemented. Currently, school districts enrolling LEP students must submit a yearly report that comprehensively details information necessary to assess their language development programs. This information includes, among other items: the number of children identified as having a primary home language other than English; the number of children identified as LEP, and the identification and assessment procedures used; the number of LEP children participating in each language development program, and the language proficiency of those children; achievement test data; and reassessment criteria. Ariz. Rev. Stat. § 15-755(B). (In addition, every two years, school districts must assess their language development programs, and maintain records of the assessments and any corrective measures taken. Ariz. Rev. Stat. § 15-755(C).) The superintendent is required to present a summary of the district reports and to make recommendations to the legislature. Ariz. Rev. Stat. § 15-756(4). The initiative, by contrast, provides no method whatsoever for gathering relevant data to monitor implementation of its immersion program.
 

Sections 4 and 5: Severability and Application

The initiative provides that should any section of the statute be held invalid, it may be severed from the remainder of the initiative. The initiative also provides that none of its provisions can be "waived, modified, or set aside by any elected or appointed official or administrator, except as through the amendment process provided in the Arizona constitution."

Analysis

1. Depending on the level of support it receives, the initiative may be extremely difficult to amend. The initiative is silent about whether it can be modified by the people. Presumably, if passed, it could be amended by another initiative.

The initiative attempts to restrict the possibility of its being subsequently modified by elected officials. It would require resort to the "amendment process." It is unclear what process the initiative refers to. The Arizona constitution provides, however, that "[t]he veto power of the governor, or the power of the legislature, to repeal or amend, shall not extend to initiative . . . measures approved by a majority of the qualified electors." Ariz. Const. article 4, part 1, sec. 1(6). The Arizona Supreme Court has interpreted this provision to mean that "only those laws approved by a majority of the registered voters, rather than by simply a majority of those voting on the proposition, [a]re beyond legislative control." John D. Leshy, The Arizona State Constitution: A Reference Guide 98 (citing Adams v. Bolin, 247 P. 2d 617 (Ariz. 1952)). Accordingly, if the initiative were passed by more than fifty percent of all registered voters, it could not be amended by the legislature under any circumstances.

2. The initiative may violate the Constitution by creating a heavy political burden on minorities advocating alternative methods of language development. The initiative may violate the Fourteenth Amendment of the United States Constitution by selectively burdening minorities' pursuit of equal educational opportunities. The Fourteenth Amendment "guarantees national origin minorities the right to full participation in the political life of the community." Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 467 (1982). It therefore prohibits "subtly distort[ing] governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation," id., and "mak[ing] it more difficult for certain racial . . . minorities to achieve legislation that is in their interest." Id. at 470. Minority parents who want to preserve bilingual education and other language development programs would be required to undertake the costly and arduous process of passing a state-wide initiative to change the initiative's English-only immersion program. It would no longer be enough for them to press their claims before local school boards or possibly even the legislature. By excluding the issue of language development from the traditional political processes in this way, the initiative would create a barrier solely burdening parents, primarily minority parents, concerned with the education of their LEP children, and therefore may violate their constitutional rights to equal participation in the political process.
 

Notes

1. Of the 743,172 students in Arizona public schools, 192,874 students (26%) have a home language other than English, and 112,522 (15%) are in LEP programs. Approximately 85% of LEP students speak Spanish, 4% speak an Asian language, and 8% speak Navajo, Apache, or another American Indian language. Report of the Superintendent of Public Instruction to the Arizona Legislature, English Acquisition Services: A Summary of Bilingual Programs and English as a Second Language Programs for School Year 1997-98 (Superintendent's Report), at 5.

2. Valeria G. v. Wilson, State Board of Education Brief in Opposition to Motion for Preliminary Injunction 30-31.

3. Lynn Schnaiberg, Arizona Looks to Its Neighbor in Crafting Plan to Take to Voters, Education Week, June 2, 1999, at 9.

4. Arizona offers bilingual, ESL and independent education programs. The various bilingual programs all provide instruction in both English and the primary home language of the students to promote both full English proficiency and academic achievement. ESL provides instruction in English, with a specific portion of the day dedicated to instruction to develop English language skills. It is not a bilingual program; it typically involves little or no use of the students' primary home language. Approximately 37% of LEP children are placed in bilingual programs, while approximately 57% are in ESL. Superintendent's Report at 12. The remainder are in independent education programs. Id.

5. See National Research Council, Improving Schooling for Language Minority Children: A Research Agenda (Diane August & Kenji Hakuta, eds., 1997) (discussing success of properly funded and implemented bilingual programs).

6. See Wayne P. Thomas & Virginia P. Collier, Summary of Research, School Effectiveness for Language Minority Students (Feb. 20, 1997).

7. See J. David Ramirez, Final Report: Longitudinal Study of Structured English Immersion Strategy, Early-Exit and Late-Exit Transitional Bilingual Education Programs for Language-Minority Children (Feb. 1991). Statistics compiled by the Arizona Department of Education bear the research out, showing that students in bilingual programs outperform those in other programs. Superintendent's Report at 13-14.

8. See Thomas and Collier, School Effectiveness.

9. Preliminary requests to block the California initiative from going into effect have been denied, but there has been no final ruling in the various lawsuits filed against the initiative. Litigation is ongoing.

10. Ramirez, Final Report.

11. Louis Sahagun, Surge in L.A. Special Ed Placements Questioned, Los Angeles Times, May 23, 1999, at A1, A28.

12. The number of LEP children under ten years of age in Arizona is not available. However, in California, the vast majority of LEP children were in the primary grades, and therefore were not eligible for the second exception. See California Department of Education, Language Census Report.

13. The amendment's further provide for the creation of an ESL and bilingual education study committee. The committee, among other things, is to review academic research regarding the types of programs that are most effective in promoting the greatest long-term academic achievement, and to recommend ways of encouraging schools to adopt those programs.

14. Teachers and administrators have filed suit in California challenging the provisions subjecting them to personal liability. California Teachers Ass'n v. Wilson.