NOVEMBER 1999
Executive Summary
In August 1999, more than a year after voters approved Proposition 227, the California Department of Education (CDE) finally issued its revised State Program for English Learners Coordinated Compliance Review Training Guide 2000-2001. The reason CDE officials took so long to offer school districts this guidance is obvious: they were hoping that the courts would overturn the ballot initiative. The guidelines themselves are a transparent attempt to reduce the impact of Proposition 227, which eliminated the CDE's favored bilingual education programs and replaced them with structured English immersion for language-minority students.
Proposition 227 brought about a significant change in the state law for teaching English learners-English immersion, not bilingual education, is now the default program in California. Before passage of Proposition 227, school districts were required to provide English learners (then referred to as limited-English-proficient students) with bilingual instruction. Waiver requests to teach students in English were usually ignored or rejected by state officials, and many parents of English-learning students were unable to persuade local school officials to remove their students from bilingual education programs.
State bureaucrats, reinforced by the U.S. Department of Education's Office for Civil Rights (OCR), constantly pressured school systems to increase bilingual education programs, even for language groups with relatively small enrollments.1 As a result, districts were continually attempting to find or train qualified bilingual teachers, and most schools existed in a state of perpetual noncompliance with state requirements and federal interpretations of the civil rights laws. The new guidelines substantially diminish the effect of the Proposition 227 English immersion requirement by offering half-hearted direction and perpetuating procedures that support bilingual programs.
Overarching Problems
State auditors use these guidelines to monitor the compliance of school districts regarding requirements for teaching English learners, and CDE staff have provided training programs for schools across the state to help districts interpret and use them. But, the guidelines offer too little, too late. A consultant, who works with California schools on a daily basis estimates that as many as 70 percent of school districts are not in compliance with Proposition 227, another 15 percent are partially complying, and only the remaining 15 percent are in full compliance with the law.
Buried in the middle of the guidelines, amid a slew of questionable federal "requirements," is the general Proposition 227 requirement that English learners must be placed in English-language classrooms, unless a parental exception waiver has been granted for an alternative program. Yet, the state deliberately does not define the elements that would hold schools accountable for implementation of the English immersion provisions of the statute. In fact, a strong case can be made that the guidelines actually undermine Proposition 227's requirements.
The majority of the pre-Proposition 227 requirements 2 have been maintained in all matters not specifically addressed by the initiative, or where an existing state requirement does not conflict with Proposition 227.3 The requirements that do address Proposition 227 have been cut-and-pasted into the existing state guidelines, with no effort to clarify the relative importance of each.
Where Proposition 227 introduces a new term or procedure, such as determining whether English learners have acquired "reasonable fluency" or a "good working knowledge" of English, the guidelines do not define the term or establish criteria for assessment. School officials are left to their own devices in developing definitions or procedures. In contrast, when the term or process is one that the state adopted pre-Proposition 227, such as the process for determining "primary language other than English" or "fluent English proficiency," the standards and procedures remain spelled out with careful specificity.
Holding on to Old Identification and Assessment Procedures
Key elements of Proposition 227 are given secondary status to existing state procedures and standards. One significant area of potential conflict between the guidelines and Proposition 227 has to do with interpretations of who is an "English learner" and the degree of English fluency that is required for English learners to be moved from structured English immersion classes into regular English mainstream classes. Proposition 227 refers to an "English learner" as:
A child who does not speak English or whose native language is not English and who is not currently able to perform ordinary classroom work in English, also known as a Limited English Proficiency or LEP child." 4
The state ignored the Proposition 227 definition of an English learner, and instead chose to maintain expansive state requirements that require districts to identify every student's home language, assess the English language skills of all students identified as having a home language other than English; and classify students as English learners on the basis of those assessments. As in the past, the assessment process includes speaking, reading, writing, and comprehension skills. A score below the recommended level in any of these areas labels the student as an English learner. This interpretation continues past practices of identifying the largest possible number of students as English learners, even those who are sufficiently fluent in speaking and understanding the English language to "perform ordinary classroom work in English."
The state is also continuing the requirement that all students identified as having a primary language other than English must be tested in that language as well as in English. State officials correctly point out that other sections of the Education Code require primary language testing under certain circumstances. But, this is an unnecessary and expensive requirement for the majority of English learners who will be taught in English immersion classes.
In large districts, it will require additional testing for tens of thousands of students. Aside from the wasteful spending of large amounts of money and staff resources, the primary language-testing requirement is particularly burdensome for schools that must provide assessments in dozens of languages for which commercially developed tests are not available. By continuing the primary-language-testing requirement, the state tacitly encourages districts to continue teaching students in languages other than English. This requirement should be reconsidered by state officials and applied only when students are to be taught in their native languages consistent with the waiver process for Proposition 227.
Redesignation and Program Effectiveness Standards
Another significant area where the state circumvents the intent of Proposition 227 involves the standard for deciding when English learners no longer need special language assistance and may be placed into English-language mainstream classes. The state refers to this as "redesignation." Proposition 227 states:
Children who are English learners shall be educated through sheltered English immersion during a temporary transition period not normally intended to exceed one year. . . . Once English learners have acquired a good working knowledge of English, they shall be transferred to English language mainstream classes.
State officials chose not to interpret the above Proposition 227 procedure as a final redesignation process for English learners. Evidently state officials do not regard "a good working knowledge of English" to be an adequate basis for redesignation-even though this is the clear requirement of Proposition 227.5 Instead, the guidelines state that all English learners must continue to receive special assistance (including bilingual education for those who acquire waivers) until they can achieve fluent English proficiency-speaking, reading, writing, and comprehension skills.
According to the guidelines, a former English learner (EL) cannot be redesignated fluent English proficient (FEP) until he or she has demonstrated English-language proficiency comparable to that of average native English speakers and is able to participate equally with average native speakers in the school's regular instructional program.
The guidelines elaborate on the "participate equally" standard by stating that, in order for a school district's program to be effective, it must also ensure that English learners recoup "any academic deficits that may have been incurred in other areas of the core curriculum." Closing all academic gaps among various groups of students may be an admirable goal but it should not be a legal requirement, and is in fact not required by federal law.
In the real world, substantial achievement gaps always exist among groups of children-whether they are English learners or native speakers of English. The guidelines reference two federal court decisions as the basis for the wqual achievement requirements-the 5th Circuit decision in Castaņeda v. Pickard (1981) and the 7th Circuit decision in Gomez v. Illinois State Board of Education (1987). These cases offer broad guidance on how the federal courts view state and district responsibilities for teaching English learners, but neither case sets the standard that states must ensure that English learners "achieve and sustain parity of academic achievement with" native English speakers.
The Castaņeda court stated that schools choosing to teach first English and subsequently content area were responsible for remedying any academic deficits that may have been incurred while English learners were learning English. This, however, is far different from requiring districts or states to remedy all academic deficits that students may have for any number of reasons unrelated to the particular method of teaching them English or to any lack of diligence by the district or state. Neither OCR nor the U.S. Department of Justice goes this far, at least not in published guidelines. In the past year, DOJ has approved agreements with far more moderate standards in Denver, and in San Juan, Utah.
Implications of Bypassing Proposition 227
The impetus for moving English learners quickly out of their special status programs into mainstream classes has been substantially diminished by the state regulations and guidelines. Proposition 227 requirements have been sandwiched between existing state requirements for identifying the largest number of EL students and even more expansive state requirements for keeping these EL students in special programs for the maximum length of time.
Given these continued requirements, it is doubtful that Proposition 227 will have any effect on the previously low annual rate (4-6 percent) of EL (or LEP) students who exit bilingual and English immersion programs. This does not mean that test scores will not continue to rise for English learners in districts that fully implement Proposition 227. But, the artificially high exit standards will keep these students in special programs well past the point where they can "understand ordinary classroom work in English."
This carries serious implications for school districts, most of which have limited resources. For example, the guidelines at IV-EL6 appropriately require that:
The district shall ensure that all teaching personnel assigned to provide instruction as described in item II-EL3 are qualified to provide the instructional services to English learners.
The guidelines further elaborate that this means not only that qualified staff must be available for the required "English-language development instruction," but also that there must be "an adequate number of qualified staff to provide access to core curriculum instruction to ensure an equal education opportunity for each English learner."6
On its face, this too appears to be a reasonable requirement, since teachers and administrators working in special programs should be qualified and well trained. But, the state's expansive definition of who is an English learner and the unreasonable standards for redesignation result in a costly and time-consuming bureaucratic morass for teachers and school districts. It is not unusual for a school district to have English learners scattered among several secondary schools. Most of these students may speak and understand English reasonably well but, for various reasons, cannot meet the redesignation criterion of parity of achievement with the average native English-speaking student.
Under the state guidelines, every teacher of every core academic class (e.g., math, science, history) having English learners must be especially qualified to teach EL students. This means the teachers are to have bilingual, cross-cultural, language, and academic development (BCLAD) certification or comparable authorization, if they are teaching in the students' native language; or CLAD or comparable authorization, if they are teaching content through the specially designed academic instruction in English (SDAIE). If the teachers lack these credentials, the district must provide "an adequate in-service training program which results in qualifying existing and future personnel to provide appropriate instructional services to English learners." This program must provide training to all levels of staff-teachers, paraprofessionals, administrators, counselors, and other educators. Furthermore, state auditors will:
. . . review attendance records of teachers and staff participating in the in-service program offered during the current school year. Teachers should attend at least 80 percent of all the sessions offered in order for their participation to be considered a good-faith effort.
This is not a new requirement, but past practice has shown it is a particularly burdensome one. The expanded standards for redesignation will make it even more so. The federal Office for Civil Rights is already enforcing them with even greater vigor and less flexibility than state bureaucrats. For example, OCR is currently requiring several California school districts to provide otherwise qualified staff additional training equivalent to three college courses. All staff, including teachers of such courses as physical education, and home economics are required to complete such courses. School staff generally regard the training as unnecessary since many of them only teach a small number of so-called EL, or LEP, students who in fact speak and understand English.
One has only to read the Center for Equal Opportunity policy brief, Federal Control Out of Control: The Office for Civil Rights' Hidden Policies on Bilingual Education, for numerous examples of OCR's zealousness in enforcing California's previous bilingual education guidelines, including those related to teacher training.7
Revision of the Proposition 227 Waiver Process
The waiver process, as outlined in Proposition 227, allows parents to move their children under certain circumstances from English immersion into bilingual programs. But the approaches to the waiver process by the guidelines and the underlying State Board regulation and substantially change the standard for approving waivers outlined in Proposition 227. For example, the language in Section 311(b) of Proposition 227 regarding circumstances for approving waivers for children ten and over specifically states that the principal and local staff must have "an informed belief that an alternate course of educational study would be better suited to the child's rapid acquisition of basic English language skills." (Emphasis added.)
This is a much more targeted standard than the Board's declaration that the principal and local staff must grant a parent's waiver request unless they "have determined that an alternative program offered at the school would not be better suited for the overall educational development of the pupil."
Proposition 227 contemplated a case-by-case deliberative process for granting waivers. The State Board's condensed language guts the deliberative process described in Section 311(c) of Proposition 227 for granting waivers to students with special needs. It is also silent on a significant provision in the Proposition 227 statute, that "The existence of such special needs shall not compel issuance of a waiver, and the parents shall be fully informed of their right to refuse to agree to a waiver."
The Board's version of the waiver criteria in effect interprets students with "special needs" simply to be students whose parents want them to be in bilingual education programs because it would better the "overall educational development" of their child. This interpretation ignores the plain language of Proposition 227 and inappropriately places the onus on principals and local education staff to approve waiver requests unless they can prove a negative.
The actions of the State Board to redirect and water down the Proposition 227 waiver process and the inaction of state bureaucrats in failing to provide substantive guidance on this matter have already resulted in abuses of the waiver process and in application of widely differing standards. It may well cause many school officials to adopt and follow waiver procedures that do not meet the requirements of the law.
Federal Law or Federal Meddling?
Few Californians are aware of the role the U.S. Department of Education's Office for Civil Rights plays in expanding the state's requirements for English learners. OCR's San Francisco office, arguably the most liberal and advocacy-oriented of the twelve regional OCR offices, has a history of interpreting OCR's unpublished guidelines in the most expansive way and presenting its interpretations to state bureaucrats as absolute federal requirements. State officials are ideologically in tune with OCR's view of the world, and thus have need little persuasion to expand state requirements in response to friendly federal pressure.
Senior staff at OCR strongly opposed Proposition 227 and undoubtedly used its close relationship with state pro-bilingual education bureaucrats to insert its views into the regulatory and guideline writing process. OCR staff from the San Francisco regional office participated with state officials in post-227 training programs, and intimidated school officials who might want to move away from bilingual programs by emphasizing that federal requirements override those of Proposition 227. The San Francisco OCR Director, Stephan Rosenzweig, who was an attorney and advocate for bilingual education before taking the OCR job in 1997, was unwilling to provide California schools written guidance that would acknowledge the Proposition 227 requirements for English immersion programs.
In June 1999, the Center for Equal Opportunity published a Policy Brief that cited OCR's failure to inform California schools that they no longer had to implement OCR-required bilingual education programs. Norma Cantu, Assistant Secretary for Civil Rights, disputed the accuracy of the article. In August 1999, an OCR headquarters official sent a letter to Linda Chavez, President of CEO, enclosing a sample letter that OCR had purportedly "sent in June of 1998 to all school districts in California with whom [OCR] had entered into agreements for serving limited English proficient students." The letter offered only minimal guidance, but did state that "existing agreements [between OCR and California schools] may be modified through revisions agreed upon by OCR and the district." Wary CEO staff asked for copies of the actual letters sent. Unable to provide copies of such letters, the OCR official had to admit that the letters to California districts were supposed to have been sent in June 1998, but that the San Francisco office had not complied with the headquarters directive!
This is typical of OCR's "now you see it, now you don't" advocacy approach to national civil rights policy related to English learners. The onerous requirements the agency imposes on school districts represent the preferences of OCR's leadership, not federal law. The agency does not issue regulations to clarify national civil rights requirements for English learners because the sub rosa requirements that OCR actually supports will not stand up to careful scrutiny-educationally, legally, or politically. Unfortunately for California schools, state officials embrace OCR's policy interpretations and turn them into state regulations and guidelines.
Conclusion
In June 1998, a large majority of California voters approved Proposition 227, endorsing the principle that "all children in California public schools shall be taught English by being taught in English." Since its passage, Proposition 227 has withstood all legal challenges, including the most recent suit brought by the California Teachers Association. The federal courts have spoken clearly-Proposition 227 does not violate the federal civil rights laws or the U.S. Constitution. It is the law in California and should not be treated dismissively by the state. School officials still need guidance to carry out their responsibility to English learners.
Endnotes
1. See Federal Control Out of Control: The Office for Civil Rights' Hidden Policies on Bilingual Education (Nov. 1998) (Published by the Center for Equal Opportunity, Washington, D.C.)
2. The guidelines have seven sections: I. Standards, Assessment, and Accountability; II. Teaching and Learning; III. Opportunity (equal educational access); IV. Staffing and Professional Growth; V. Parent and Community Involvement; VI. Governance and Administration; and VII. Funding.
3. Proposition 227 has been incorporated into the California Education Code at Sections 300-340. The regulations interpreting EC Sections 300-340 (Proposition 227) can be found at Title 5, California Code of Regulations, Division 1, Chapter 11, Subchapter 4, "English Language Learner Education." The State Board of Education adopted the regulations on October 9, 1998. The Office of Administrative Law approved the regulations on December 30, 1998.
4. California Education Code, Section 1, Chapter 3, 306(a).
5. A state official stated that the English mainstream classes that students move into after acquiring a "good working knowledge" of English are not the same mainstream classes that they will be enrolled in once they have met the state's redesignation standards.
6. Consolidated Programs-State Program for English Learners, Consolidated Compliance Review Training Guide 2000-2001, Sections IV-EL6a and IV-EL6b, P. 171, 172.
7. See Federal Control Out of Control: The Office for Civil Rights' Hidden Policies on Bilingual Education (Nov. 1998) (Published by the Center for Equal Opportunity, Washington, D.C.) Excerpt 22: (letter dated April 26, 1996 to the Norwalk-La Mirada, CA Unified School District.
