Jill Kerper Mora
San Diego State University
Lawsuit update! August 30, 2001
On August 29, 2001 the U.S. Court of Appeals for the Ninth Circuit upheld a lower court ruling in the case of California Teachers Association et al v. State Board of Education (formerly titled CTA v. Davis). In a two to one decision, Judge Robert Boochever wrote for the majority that Proposition 227's Section 320 is constitutional. On September 8, 1999 District Court Judge Edward Rafeedie had ruled that the personal liability provisions allowing parents to sue teachers and school officials for alleged violations of the English-only requirements of the law is constitutional. The lower court ruling in California Teachers Association v. Davis 64 F.Supp.2d 945 (C.D.Cal. 1999) stated, "The Proposition involves a policy decision on curriculum, in which teachers are required to hold lessons for English learners in English, rather than in the native language." The lower court ruling allowed for non-instructional use of the native language, including disciplining students, emergency training, social interactions, tutoring, and parent-teacher conferences. In the dissenting opinion, Judge A. Wallace Tashima stated that the law is insufficiently clear, so much so that enforcement will be left up to parents' notions of whether teachers are in compliance, creating "a means of legalistic ambush" against bilingual teachers. In his dissenting opinion, Judge Tashima points out the effect of this provision of Proposition 227:
"The parental enforcement provision of Proposition 227 allows parents to sue California's public school teachers for money damages for their use of non-English without providing the teachers with sufficient clarity as to how much English is required and in what circumstances and settings. As a result, educators fearing personal liability must either teach at their own risk, or, as is the more likely, acquiesce in the complete elimination of non-English in the performance of their duties."
Judge Tashima also points out that "…If teachers must fear retaliation for every utterance, they will fear teaching."
Text of Proposition 227's Section 320
ARTICLE 5. Legal Standing and Parental Enforcement
320. As detailed in Article 2 (commencing with Section 305) and Article 3 (commencing with Section 310), all California school children have the right to be provided with an English language public education. If a California school child has been denied the option of an English language instructional curriculum in public school, the child's parent or legal guardian shall have legal standing to sue for enforcement of the provisions of this statute, and if successful shall be awarded normal and customary attorney's fees and actual damages, but not punitive or consequential damages. Any school board member or other elected official or public school teacher or administrator who willfully and repeatedly refuses to implement the terms of this statute by providing such an English language educational option at an available public school to a California school child may be held personally liable for fees and actual damages by the child's parents or legal guardian.
The Plaintiffs' Claims
On December 4, 1998 the California Teachers Association and several professional organizations filed suit against then Governor Pete Wilson and the State Board of Education petitioning for an injunction against enforcement of Section 320 of Proposition 227. This ballot initiative passed by 61% of the voters in the June primary restricting bilingual education gives parents the right to sue teachers and other school officials who "willfully and repeatedly" refused to provide an "English language educational option" as defined in the statute. Teachers can now be held personally liable for attorneys' fees and "actual damages" if a parent or guardian of a student prevailed in court. This provision affects 15,000 California teachers who hold the bilingual teaching credential (BCLAD). Bilingual credentialed teachers represent 8% of the total teaching force in California. Also affected are some number among 11,000 emergency credential teachers assigned to teach limited English proficient students.
The educational organizations who are plaintiffs in the suit, include the Association of Mexican American Educators and the National Association for Bilingual Education. The organizations' members allege that it is impossible to ascertain what is required or prohibited by the statute and therefore, to conform their conduct so as to avoid being sued. Any parent who disagrees with the method or substance of teaching and counseling in the schools can file a private cause of action against school board members, administrators and teachers under Proposition 227.
This provision in the education code is unprecedented, since before passage of the anti-bilingual education initiative a teacher could only be held personally liable for criminal conduct in the performance of his or her teaching duties, not for utilizing certain teaching strategies or a specific curriculum. In effect, Proposition 227 created a new category of litigation akin to "educational malpractice" for educators. Under this law, the civil courts have been made the arbitrators of disputes between parents and the teachers of their children over the language of instruction in the classroom.
Federal Court Ruling in CTA v. Davis
The decision in this case, issued on Sept. 8, 1999, discussed at some length the question of who is the enforcer of Prop. 227. The State Board of Education claimed in its defense brief that "…because the personal liability provision will not be enforced by the Board or its members, but by parents, the Board cannot be the enforcement agency and it cannot be sued in federal court." CTA el al argued that since the SBOE had issued regulations defining various terms in 227, it has "direct enforcement power" and "the Board indirectly effects the personal liability of any teacher or administrator under section 320."
An interesting aspect of this lawsuit is Plaintiff's claim that Prop. 227 is a "clear departure from the California's common law rule which does not allow a tort for 'educational malpractice.' " The ruling says that this is a question of statutory interpretation of state law. The court uses the term "the teacher's curriculum of choice"that could be "in contravention of specific school policies or dictates" and that there would have to be a "finding of intent before imposing liability." The federal court concluded that "The statute leaves teachers in the same position as that of all other potential litigants, who are free to defend themselves against non-meritorious suits. Due process is not violated by failing to give teachers and administrators special safeguards in this situation."
We must ask the question, under what possible circumstances would a lawsuit against a teacher based on his or her use of students' native language ever be"meritorious"? Furthermore, how could a judge or jury possibly define "actual damages" that a child might suffer for being instructed by a teacher in his or her native language? Is this threat of civil litigation against bilingual teachers and educators who advocate for dual language instruction not clearly a deviation from protections against harassment lawsuits and establishment of a code of "educational malpractice" in violation of California common law?
Linda Chávez, Director of the Center for Equal Opportunity, an anti-bilingual education organization, intervened in the appeal of CTA v. Davis. Chávez described the objective of the CEO's intervention through representation of several Hispanic families as follows: "The Center for Equal Opportunity has intervened in this case on behalf of several Hispanic families who want their right to enforce the initiative protected. Attorneys for the Pacific Legal Foundation argued the case on behalf of these parents."
It is indeed a bizarre and deeply troubling concept to think of parents as enforcers of California's Education Code through independent, self-initiated civil litigation, especially when there are duly authorized compliance units within the Department of Education who carry this responsibility. Proposition 227 sets up a legalized system of parent and citizen "vigilante" groups to scour the public schools in search of lawsuits to punish administrators and teachers for alleged infractions of restrictions on the use of children's primary language through the civil courts. Most sensible law abiding citizens find such a role for parents of students in the public schools disturbing. We fail to understand what public policy or common societal interests are really served by such punitive and discriminatory practices targeted at educators of our already disadvantaged language minority students.
A Subclass of Civil Servants
It is no surprise that educators feel threatened and angry because of Section 320 of the Education Code, considering that it singles them out for especially severe and discriminatory treatment by the courts. Under the current civil service law, a police officer could beat up a prisoner in his custody and if a lawsuit was filed against him, he would be entitled to a defense at the cost of the state. However, if a teacher is sued by a parent for using too much Spanish with their child in an English immersion classroom, this teacher would have to pay her own attorneys' fees to defend herself against imposition of damages and the costs of litigation.
It is important to point out that the parental exception waivers allowed under Proposition 227 make bilingual teachers in classrooms where all their students' parents have signed waivers exempt from the lawsuit provisions. Consequently, only bilingual teachers assigned to English immersion classrooms are vulnerable to parental lawsuits. This creates a strong incentive for school districts to seek and to grant parental waivers in order to protect their bilingual teacher employees from potential lawsuits.
We must ask ourselves as educators, parents and concerned community members whether or not such extreme measures to enforce a policy of language restrictions in our schools really serves the greater public good. One concern raised by such a policy is its effect on recruitment of highly qualified individuals into the teaching profession. Recent surveys of the demand for teachers conducted by the California State University system show that California needs 300,000 new teachers over the next 10 years. This amounts to a need to prepare 30,000 teacher candidates with a credential each year. Among the graduates who may be thinking of becoming teachers, there are many individuals with multilingual skills who come from diverse cultural backgrounds and ethnic groups. These men and women are currently in high demand for teaching positions because of the increased linguistic and cultural diversity of the school-aged population, since one fourth of our public school students are classified as limited in English proficiency. Yet, the threat of lawsuits by disgruntled parents falls disproportionately on bilingual teachers, the group who is endangered personally and professionally by these liability provision because of their dual language skills.
While monolingual teachers face a classroom of students whose parents are seen as a key element in their learning, under this law bilingual teachers face a classroom of potential "enforcers" of the education code and litigants against them personally. Decisions they make regarding instruction have the potential of provoking a lawsuit from the parent or guardian of any one of their students, even when they are acting in the best interests of the group of children under their assigned professional responsibility. Bilingual teachers seeking employment in public schools place themselves at financial and professional risk by virtue of their bilingualism, unlike any other category of teachers or other public servants. Their conditions of employment as public servants are therefore much more stressful and restricted than their colleagues' working conditions. Thus, they are denied equal protection under the law in performing their professional duties.
A sample of the plan for the California teaching force from the proponents of Proposition 227 is found in a report authored by Keith Baker titled "Basics of Structured English Immersion for Language-Minority Students." The article was posted on the website of the Center for Equal Opportunity and listed among the publications of the READ Institute, but is no longer available online. Dr. Baker offers this advice to school districts:
The surest way to get properly prepared teachers for SEI is to get rid of all certified bilingual education program teachers and teachers with a degree in bilingual education. Research shows these teachers harm learning English (Rossell and Baker, 1997), so regardless of the program, they should be removed from the schools.
The problem with certified bilingual education program teachers is that they have been brainwashed in college by professors addicted to a hair brained, unproved theory of language learning. These poor teachers come to believe the baseless claims of the Krashens and Cummins and Colliers of the linguistic world that it is necessary to teach in some language other than English to learn English. Consequently, that's what they do. Not only do they overuse the non-English language to the detriment of their students, they believe they are doing the right thing in acting this way. Since they are doing the wrong thing, get rid of them.
While the schools should remove LEPs from classes taught by certified bilingual education program teachers as soon as possible, this probably can't be done overnight. In the interim, schools should closely monitor these teachers to be sure they are implementing the SEI program and conduct in-service programs to retrain these ill-prepared teachers to properly teach their students.
The California State Board of Education, as well as the governing authorities in other states, should immediately eliminate college level classes in bilingual education and no longer grant degrees or instruction in this subject. What teachers need to know to successfully teach LEPs is more than adequately taught in second language learning methods classes in other departments.
Baker's rhetoric is representative of the level of hostility promulgated by proponents of Proposition 227 against bilingual teachers and academics who support bilingual education. We can only speculate as to the negative impact on teacher recruitment and retention of "getting rid" of 15,000 credentialed and experiences bilingual teachers who comprise 8% of California's teaching force. Moreover, the consequences for heavily Hispanic and minority communities who have developed a cadre of highly qualified bilingual teachers and to their schools would be devastating. However, supporters of Proposition 227 see bilingual teachers as the enemy of SEI implementation who must be eliminated from the teaching force. Because of the provisions of 227, personal liability lawsuits are now an available tool for anti-bilingual education activists to accomplish this purge of the public school teaching force.
Judges are not Teachers
In Judge Boochever's majority opinion, we find an example of the problems presented when judges act and reason in the place of educators. According to the majority argument, Section 320 of Proposition 227 is not unconstitutionally vague because teachers only risk liability under the law for "instructional speech" that is "non-English." This is defined alternatively as "the language of instruction" and "the language teachers use to present the curriculum to students in California public schools." The justices content that the terms "instruction" and "curriculum" "…are words of common understanding" as are the words "overwhelmingly" and "nearly all." They therefore conclude that "…it is unlikely that the ambiguity in the terms "overwhelmingly" and "nearly all" will chill any more than a negligible amount of non-English speech."
We must note here that although the justices in CTA v. Board of Education argue in the majority opinion that these terms have a common meaning, very few educators would ever describe what they do in teaching as "present the curriculum." Judge Tashima also pointed out in the dissent that school districts throughout California have widely differing interpretations of "overwhelmingly" and "nearly all" in designing and implementing models of "sheltered English immersion" (SEI).
In the dissenting opinion, Judge Tashima disagrees with this conclusion. The judge points out that the U.S. Supreme Court itself defines "curriculum" more broadly for purposes of defining the authority of the state to regulate school-sponsored expression. The Supreme Court's definition of curriculum includes those "expressive activities" that "…bear the imprimatur of the school" and includes activities "supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences." This definitional argument arises because in order to legally limit speech and create a tort for teachers' possible violations of the limitations set under the law, the limitations on speech must serve "…the state's legitimate pedagogical interests."
We must also consider the fact that the broad scope of the law in the language of Proposition 227's Section 320 is to allow indemnities against teachers for denying a student "the option of an English language instructional curriculum in public school." Herein lies the problem: In a classroom with limited English proficient students who speak the other-than-English language of the bilingual teacher, the teacher must decide at his or her own risk, how to further the state's "legitimate pedagogical interests" in promoting academic achievement while at the same time discerning how to achieve this purpose without using the students' non-English native language in instruction. A bilingual teacher is encouraged to make the "curriculum" comprehensible to her students. Yet, at the same time, if she is teaching in a sheltered immersion classroom, she must weigh the "legitimate pedagogical interests" of the state and simultaneously, of each individual student in the class, against the threat of legal sanctions by a parent who may not agree with her intent and purpose in using a student's native language.
It is also problematic to consider whether the impermissible instruction in the non-English language is specifically directed at a particular child or at the class as a whole. This means that teachers is also required to discern what means are legitimate to accomplish the pedagogical goals of instruction for each child individually as well as collectively for all students when making an utterance in another language. The bilingual teacher is risking all the while that what Mrs. García may believe to be beneficial for her son Carlos could also be objectionable for Mr. Sandoval in instructing his daughter Elena. How does the teacher avoid legal liability while weighing all these possibly conflicting interests and opinions about the value and effectiveness of her pedagogical decisions?
Judge Tashima in his dissenting opinion points out the seriousness of the dilemma in which bilingual teachers find themselves under Proposition 227:
The majority then contends that because teachers have an affirmative obligation to impart knowledge to their students and because they may even be required to use non-English in certain situations by their employing school districts, "it is highly unlikely that educators will restrict themselves to speaking English only." Maj. op. at 11843. The majority is apparently oblivious to the dilemma in which this places teachers of either fulfilling their legal and professional duties and exposing themselves to liability, or ignoring their teaching obligations in order to steer clear of a vague restriction on the amount of non-English that is permitted.
The judges in the majority opinion in CTA v. Board of Education have narrowed their vision of the complexities and challenges of educating language minority students to the narrow issue of "language of instruction" and learning English, while losing sight of the broader purposes of education, just as the voters of California have done. Consequently, bilingual teachers are singled out for especially severe civil liabilities and penalties that are having far broader negative consequences.
Bilingual Teachers Are Leaving the Profession
Bilingual educators are the most at risk of being sued under this provision of Proposition 227 since they are most likely to speak the language of their students. These highly trained and specially skilled teachers would be required to perform their jobs under constant threat of financial loss and professional embarrassment. A teacher of English language learners who speaks her students' native language never knows when parents walk into the classroom whether or not they are there to talk about their child's academic progress, or to gather evidence to take against her to their lawyer.
In the recent report (Gándara et al) from the University of California Linguistic Minority Research Center, statistics from the California Department of Education show that there has been a 32% drop in the number of credentialed bilingual teachers who are using their BCLAD credential in their teaching assignments in California between 1997-98 and 1998-99. The number of bilingual teachers who are utilizing their bilingual training in their classroom assignments fell from 15,783 to 10,690. The logical assumption is that there is a loss of bilingual teachers' full range of professional knowledge and skills from California's public school classrooms in response to the new legal restrictions imposed under Proposition 227. Several research studies (Anderson, 2001; Weisman & Hanson, 2001) indicate that morale among bilingual teachers is very low and that many feel personally and professionally threatened by Proposition 227's provision that allows teachers to be sued for personal liability and attorneys’ fees by parents for perceived non-compliance with the English-only instruction mandate. Some teachers in these studies indicated that they planned to leave teaching because they felt morally compromised by the restrictive policies under the new law.
In addition, the number of teacher candidates at universities working on a bilingual credential dropped by 52% in 1998-99, although that number appears to been a temporary dip in BCLAD credential candidates given the figures for the 1999-2000 academic year (California Commission on Teacher Credentialing, 2001). In other words, we may be losing bilingual teachers who are unlikely to be replaced by new certified BCLAD teachers.
The Public as an Employer
Would an employer in the business world expect to attract highly qualified and creative individuals to a job where they were told to be obedient, instead of being supported in exercising their professional judgment? Would any manager expect his employees to accept working conditions where policies exist that hamper their ability to establish a relationship of trust with the clients they are expected to serve? The public is the employer of the teachers who serve our public school students. We must think very carefully about what legal burdens we place on teachers in our schools. We cannot attract graduates into the profession and retain high quality bilingual educators in our culturally diverse classrooms if we threaten them with punitive lawsuits for exercising their professional judgments.
The federal court in CTA v. Board of Education has ruled that Proposition 227 does not chill protected, out-of-classroom speech. Regardless of whether or not we agree with this conclusion, Proposition 227 has definitely chilled the careers of many bilingual teachers and has thrown cold water on efforts to recruit more bilingual college graduates into teaching. We must reject laws that demean and restrict teachers who are qualified through our teacher education programs and state credentialing process to impart high-quality instruction to all our children.
A Broader Constitutional Question
The legal liability provision of Proposition 227 and the CTA's federal court challenge to Section 320 raise broader issues of equity and justice under a constitutional democracy. Does the Bill of Rights protect the minority from laws that discriminate against a class of public servants who perform a valuable function that they consider to be a means of redressing violations of their civil rights? The courts are authorized to rule on whether or not a law is constitutional. They have no authority to judge whether a law is sound public policy. However, the courts must examine carefully whether conditions of legal discrimination established through the ballot initiative process against a disfavored group of public school educators at a point in time really serve the goals and purposes of public education. Or are the short-term interests and prejudices of a group within the society being allowed to hold public education hostage to a particular ideology because they can garner a greater number of votes than the minority?
The case of CTA v. Board of Education is not what the supporters of Proposition 227 have portrayed it to be. Organizations such as the misnamed Center for Equal Opportunity would have the public believe that bilingual educators are a self-serving and rebellious lot who want to set their own rules in public education. This is not the case. Bilingual educators and the administrators who supervise them seek to have equal protection under the law in the performance of their duties in a way that allows them to function as equal partners within the teaching profession. They want equal, not special, treatment. For this reason, they oppose Article 5:320's onerous and punitively discriminatory provisions. In responding to the denial of CTA's appeal to the Ninth Circuit Court, the organization's legal representative, Priscilla Winslow, said that the provision gives local judges and juries power over educational practices and puts another burden on teachers who "already have it hard enough." The long range consequences of legalized discrimination against any group in public education are detrimental to society as a whole. The best interests of California's language minority population and the larger community of California are not well served by a law that makes bilingual college graduates fearful about entering the teaching profession at a time of a critical shortage of qualified teachers and a growing population of students who speak a language other than English in the home.
A Personal Note
A dynamic leader and strong outspoken advocate for bilingual education, Gloria Zamora, passed away on August 30, 2001 in San Antonio, Texas. In an article about Dr. Zamora in the San Antonio Express News (Danini, 2001, September 2), Gloria Zamora's early experience in teaching Latino children in Texas was remembered:
Zamora told the San Antonio Express-News in 1992 that when she began her teaching career at Crockett Elementary School in 1956, it was against the law to speak Spanish in the classroom.
"So I closed the door to my classroom and I broke the law," Zamora said.
Speaking Spanish to first graders who did not understand English enabled her to teach them.
"I saw their little eyes light up (as if to say) 'Oh, now I understand what she's saying,'" Zamora recalled.
Dr. Zamora's words are a sobering reminder of how far back to the times of linguistic oppression we have returned as a result of Proposition 227. Gloria Zamora dedicated her life to overcoming the unjust laws that kept her from giving the very best of her knowledge and skills to helping children learn and fulfill their own human potential. Today, the one out of three judges who writes the opinion expressing the injustice of these measures, is in the minority on the court. The alleged victory of the proponents of Proposition 227 in the courts upholding the lawsuit provision against educators is a tragic loss for all of us. Have faith, Gloria, that we will continue to struggle against this injustice!
This page was last updated on 03/30/06