Bilingual bullies

National Review, Feb 23, 1998 by John J. Miller

School districts across the country are not teaching English--because the Federal Government won't let them.

In December 1994, Sandra Lenker took a friendly phone call from the Department of Education in Washington, D.C. Three years later, the superintendent of the Atwater Elementary School District in California's Central Valley finds herself stuck in a bruising fight with the department's Office for Civil Rights (OCR) over her district's bilingual program. "The process is crazy," she complains. "I don't see how all of the time, effort, and energy we've put into this case helps children."

Sandra Lenker's battle with the OCR has gotten practically no attention--her district has only 4,400 children, and Atwater, located between Fresno and Sacramento, isn't exactly a media hub. Yet, the very fact that the OCR has decided to sick its lawyers on this out-of-the-way community illustrates the breathtaking reach of the Department of Education's effort to micromanage bilingual education--and its determination to keep children from being taught English.

Over the last twenty years, the OCR has been one of the most important forces behind the rise of bilingual education in the nation's schools. Armed with a 1974 Supreme Court decision saying that children whose command of English is weak have a right to special assistance in the classroom, it has bullied thousands of school districts into adopting programs based on the theory that children from other linguistic backgrounds should become fluent in their (or their parents') native language before learning English.

Although this theory is increasingly discredited, the Office for Civil Rights continues to push it. The OCR is now headed by Norma Cantu, formerly an attorney for the Mexican American Legal Defense and Education Fund (MALDEF). Miss Cantu is best known for defending racial preferences in college admissions. But at MALDEF she helped litigate lawsuits seeking to push school districts into bilingual programs. Now she is able to continue that crusade with the authority and resources of the Federal Government behind her.

The OCR as currently constituted provides a textbook example of governance by bureaucratic ukase. It has never put its bilingual-education policies into the federal code. Most districts involved in reviews by the OCR quickly accede to its demands and refuse even to talk about their problems, presumably for fear of losing federal funding. Janice L. Sperow, a San Diego lawyer who has represented a number of school districts, confirms this presumption: "Retaliation from OCR is a big concern," she says. But now a few districts, including Sandra Lenker's, are fighting back.

The OCR originally told Miss Lenker that Atwater had been randomly selected for a review of its program for students with "limited English proficiency" (LEP) who were also enrolled in special education. In April 1995, several OCR officials spent four days visiting the district. During an exit interview they told Miss Lenker they had spotted a few minor problems that needed fixing. No big deal.

Eleven months went by with no further word from the OCR. Then, in March 1996, Miss Lenker received a phone call. Expect a fax, she was told. Her machine soon spat out an eight-page "voluntary remedial action plan." It demanded that she agree to a series of changes not only in the way the district taught special-education kids who needed help with English, but also in its regular bilingual-education program. The OCR offered no explanation of why the changes were necessary. According to Miss Lenker, one investigator told her, "We haven't had good experiences negotiating plans when we release our findings." So, instead, the OCR just insisted that she sign on.

Sandra Lenker was friendly toward the concept of bilingual education but this was too much, and so she hired some lawyers. The two sides have brawled ever since over questions such as whether Atwater must have a bilingual psychologist on staff at all times--and whether failure to do so represents a violation of students' civil rights. "In a lot of cases, what we've been asked to do isn't so out of whack," Miss Lenker says. "It's that this process has dragged on for so long and under such strange circumstances. We're trying to do the best we can for kids, and I'm not sure putting our resources into OCR compliance helps very much."

Sandra Lenker believes she's on the verge of an agreement with the OCR. That is not the case with the Denver school system. Last fall the OCR asked the Department of Justice to sue Denver over its bilingual-education program--a decision that now lies in the hands of Bill Lann Lee. At stake is the $30 million in federal money that is pumped into the school system each year, about 8 per cent of the district's budget.

Everybody agrees that Denver's bilingual-education program was a wreck. Denver's bilingual-ed students were lagging academically. In 1995 the OCR reviewed the program and found it lacking in a number of areas. The school board was eager to improve it. So Denver developed a new plan for its 13,000 LEP kids (about one of every five children in the district), 90 per cent of whom speak at least some Spanish.