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July 15, 1998

VALERIA G., et al., Plaintiffs,
PETE WILSON, et al., Defendants.

The opinion of the court was delivered by: LEGGE



















 On June 2, 1998 the voters of California approved Proposition 227, an initiative statute entitled "English Language in Public Schools." The statute amends the California Education Code to change the system under which students who are limited in English proficiency are educated in California's public schools. On June 3, 1998 plaintiffs filed this action challenging Proposition 227 under federal statutes and the United States Constitution.

 Plaintiffs now move for a preliminary injunction "enjoining defendants from implementing Proposition 227" pending the trial of this case. *fn1" Plaintiffs are several limited English proficient (called by the parties "LEP") students enrolled in California public schools. Five organizations have filed amicus curie briefs in support of the motion for a preliminary injunction. *fn2"

 The motion is opposed by defendants: Governor Pete Wilson, the State Board of Education and its members, and the State Superintendent of Public Instruction Delaine Eastin. The motion is also opposed by several parties who have intervened in this lawsuit. *fn3"

 This court has studied the moving brief, the briefs in opposition to the motion, the reply briefs, and the amicus curie briefs. It has also considered the declarations and exhibits submitted in support of the parties' positions.

 For the reasons discussed below, the court will not enjoin the implementation of Proposition 227.


 The California electorate approved Proposition 227 by a margin of 61% to 39%. The general thrust of the initiative is to reject the bilingual education programs presently in effect in California public schools. Bilingual education programs are those in which LEP students, while they are learning English, receive instruction in academic subjects such as math, science and social studies in their "primary" or "home" language. The initiative replaces the bilingual education programs with an educational system designed to teach LEP students English, and other subjects in English, early in their education.

 Proposition 227 is premised upon certain findings and declarations that include:

The public schools of California currently do a poor job of educating 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.

 Initiative, § 300(d). The findings also declare that English is "the language of economic opportunity" and that "immigrant parents are eager to have their children acquire a good knowledge of English, thereby allowing them to fully participate in the American Dream of economic and social advancement." Id. at §§ 300(a) & (b). The findings further state that "the government and the public schools of California have a moral obligation and a constitutional duty to provide all of California's children, regardless of their ethnicity or national origins, with the skills necessary to become productive members of our society, and of these skills, literacy in the English language is among the most important." Id. at § 300(c).

 In response to those defined problems and goals, Proposition 227 requires that LEP children receive instruction pursuant to an educational system known as "sheltered English immersion" or "structured English immersion." Id. at § 305. Under this system, children "shall be taught English by being taught in English." Id. The initiative requires that "Children who are English learners shall be educated through sheltered English immersion during a temporary transition period not normally intended to exceed one year." Id. "Once English learners have acquired a good working knowledge of English, they shall be transferred to English language mainstream classrooms." Id.

 The initiative defines the immersion system as "an English language acquisition process for young children in which nearly all classroom instruction is in English but with the curriculum and presentation designed for children who are learning the language." Id. at § 306(d). It provides that "local schools shall be permitted to place in the same classroom English learners of different ages but whose degree of English proficiency is similar." Id. at § 305.

 Beyond this, the language of the initiative does not set forth a specific program or curriculum. It is not the function of this court to interpret all of the language of the initiative in this motion, but some things are apparent from the face of the statute. *fn4" Although the immersion program is "not normally intended to exceed one year," the initiative does not require a student to transition to mainstream classes until he or she has achieved a "good working knowledge of English." Also, the initiative on its face does not preclude the occasional use of an LEP student's primary language in the classroom, or outside of the classroom, such as by tutors, teacher's aids or other academic support programs. Nor does the initiative prohibit additional primary language assistance after an LEP child transitions into a mainstream classroom.

 The initiative also sets forth several circumstances under which LEP children may receive waivers from English immersion, and "may be transferred to classes where they are taught English and other subjects through bilingual education techniques or other generally recognized educational methodologies permitted by law." Id. at § 310. Waivers may be granted (i) where a student already knows English; (ii) where the student is ten years or older and the school agrees that an alternative course of study would be a better way for the student to learn English; and (iii) where the student has tried the immersion program for at least thirty days and the school agrees that in light of his or her particular needs an alternative course of educational study would be better suited to the student's overall educational development. Id. at § 311. In all of these circumstances, a waiver may be granted only with parental consent. Id. at § 310.

 Moreover, "individual schools in which 20 pupils of a given grade level receive a waiver shall be required to offer" a class in which children are taught English and other subjects through bilingual or other alternative educational techniques. Id. (emphasis added).

 The initiative also appropriates from the state's General Fund fifty million dollars per year for each of the next ten years "for the purpose of providing additional funding for free or subsidized programs of adult English language instruction to parents or other members of the community who pledge to provide personal English language tutoring to California school children with limited English proficiency." Id. at § 315.

 Anticipating a legal challenge, the initiative provides that

if any part or parts of this statute are found to be in conflict with federal law or the United States or the California State Constitution, the statute shall be implemented to the maximum extent that federal law, and the United States and the California State Constitution permit. Any provision held invalid shall be severed from the remaining portions of this statute.

 Id. at § 325.

 The initiative becomes operative for school terms which begin sixty days after the date of its passage, June 2, 1998. Id. at § 330. Thus, if it survives plaintiffs' request for an injunction, the initiative will take effect in California public schools in the fall term of this year.

 Finally, as will be discussed in more detail below, the initiative restricts the circumstances under which it may be amended:

The provisions of this act may be amended by a statute that becomes effective upon approval by the electorate or by a statute to further the act's purpose passed by a two-thirds vote of each house of the Legislature and signed by the Governor.

 Id. at § 335.


 A preliminary injunction may issue "if the movant has shown either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the movant's favor." Coalition for Economic Equity v. Wilson, 122 F.3d 692, 700 (1997) (quoting Armstrong v. Mazurek, 94 F.3d 566, 567 (9th Cir. 1996)). See also U.S. v. Odessa Union Warehouse Co-Op, 833 F.2d 172, 174 (9th Cir. 1987) ("These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases"). In cases involving matters of significant public interest, such as the one now before this court, the court must also consider whether the public interest weighs in favor of the preliminary injunction.

Thus, under the "traditional test" typically used in cases involving the public interest, the district court should consider (1) the likelihood that the moving party will prevail on the merits, (2) whether the balance of irreparable harm favors the plaintiff, and (3) whether the public interest favors the moving party.

 Caribbean Marine Services Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). See also Regents of University of California v. ABC, Inc., 747 F.2d 511, 514 & 521-22 (9th Cir. 1984). The public interest in this case is reflected by the voters' overwhelming approval of Proposition 227.


 Before proceeding to the legal issues raised by plaintiffs, the court makes three preliminary observations which concern principles important to the legal analysis:

 First, the proponents and the opponents of Proposition 227 all share the same objective : to educate children who have limited English proficiency. Substantial state and local resources will be expended toward that common objective, regardless of which educational system will be used. The parties differ only on how to accomplish that common objective.

 The second observation is related to the first. This court cannot discern from the face of Proposition 227 any hidden agenda of racial or national origin discrimination against any group. Because the educational debate and the initiative concern children whose primary language is not English, it necessarily focuses on children who are national origin minorities. *fn5" But the debate is a neutral one, about which system will provide LEP children with the best education to enable them to function as American citizens and enjoy the opportunities and privileges of life in the United States.

 Third, each side has submitted extensive evidence and arguments, including research studies and sometimes vehement expert opinions, that their education system is the better one. There is a legitimate policy debate among respected educators and scholars on this issue. But, most important, that is not a debate for this court to resolve. This court is not a Supreme Board of Education. It is not the province of this court to impose on the people of California its view of which is the better education policy. The voters of California expressed their policy preference by enacting ...

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