Schools win round in court
The Desert Sun
October 29, 2005

Suit alleges state English testing violates U.S. law

Christine Mahr
 For a second time, a judge has ruled against the state in a lawsuit over the testing of English-learners, clearing the way for the action to proceed through the courts.

San Francisco Superior Court Judge Ronald Quidachay denied the state's request to dismiss the lawsuit, filed in June by the Coachella Valley Unified School District, 10 other school districts and three statewide organizations.

They allege the state is violating the federal No Child Left Behind Act and the state Constitution's guarantee of equal protection by testing California's 1.6 million English-learners only in English before they are proficient in the language, and then counting their scores for accountability purposes.

Clear to go forward
  "The significance of the ruling is that it ends the procedural games," said Marc Coleman, an attorney with one of three firms representing the plaintiffs. "Both the federal and state courts have said the case should proceed as written on the merits."

Attorneys for those named in the suit - the state, Gov. Arnold Schwarzenegger, the California Department of Education, state Superintendent of Public Instruction Jack O'Connell, the state Board of Education and its individual members - had transferred the case earlier to federal court to get it heard there. But a federal judge sent it back to California.

California Deputy Attorney General Angela Botelho said Friday she just became aware of the judge's ruling, which had no explanation for his decision.

"We're evaluating our options - we need to discuss it with our clients," said Botelho, who represents the state, Schwarzenegger and the state Board of Education.

Elaine Gray, the attorney for O'Connell and the state Department of Education, could not be reached Friday.

Fight for local control

 In seeking dismissal of the case, attorneys for the defendants argued that under No Child Left Behind, the state has complete discretion as to the type and manner of testing it uses, and that its testing procedure is immune from any judicial review.
Attorneys representing the school districts said the court's ruling rejects that argument and also:

Affirms their position they can pursue a claim for denial of equal educational opportunities under the California Constitution.

Affirms the court's ability to order the state to mandate testing that complies with the No Child Left Behind requirement that English-learner testing be valid and reliable.

Earlier this month, Schwarzenegger rejected legislation that could have settled the lawsuit. The bill, introduced by Sen. Denise Ducheny, D-San Diego, would have directed the state to adopt rules for testing English-learns that conform to No Child Left Behind.

The federal act allows students to take the test in their native language for a longer period of time than California regulations do. Schwarzenegger vetoed the bill Oct. 7.

The only option left for students taking the high-stakes test in a language they don't understand is with the lawsuit pending in the San Francisco  court.

Related case
  A suit dealing with the English-learner issue also is pending in Reading, Penn.

A school district there tried to block enforcement of No Child Left Behind, citing a lack of funding and failure of that state's Department of Education to give tests in Spanish and other foreign languages, according to the Reading Eagle newspaper.

A three-judge Commonwealth Court panel ruled in August 2004 the district failed to prove it had not received enough funding to comply with the law. The ruling went on to say it was not practicable for the state to give standardized tests in foreign languages, the Reading Eagle report said.

After unsuccessfully refiling its case with the court, the school district appealed the decisions to the state Supreme Court, where the appeals are pending, according to the Reading Eagle.

School districts and organizations that, along with
the Coachella Valley Unified School District, sued the
state over the testing of English-learners are:Alisal
Union Elementary School District, Monterey County
Chula Vista Elementary School District, San Diego
Hawthorne Elementary School District, Los Angeles
Hayward Unified School District, Alameda County
Oxnard Elementary School District, Ventura County
Pajaro Valley Unified School District, Santa Cruz
Salinas Union High School District, Monterey County
Sweetwater Union High School District, San Diego
Terra Bella Union Elementary School District, Tulare
San Ysidro Unified School District, San Diego County

California Association for Bilingual Education, an organization of teachers, administrators, paraprofessionals and parentsCalifornians Together, a statewide coalition of parents, teachers, education advocates and civil rights groupsCalifornia LULAC, a state affiliate of the national League of Latin American Citizens, a Hispanic civil rights group.