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The right to wave immersion

Veronica Whitney

“This is bad law with extreme punitive aspects,” says Urschel. “It’s a drastic change and it’s poorly written.”

Eagle County School District board members and administrators say that of provisions included in Amendment 31, the most controversial is one that would allow parents to sue school administrators. Both the Eagle County Board of Commissioners and the school board have rejected the amendment – a proposed change to the state constitution that would dismantle bilingual education. In both resolutions, school board members and county commissioners agree that Amendment 31 provides “sweeping legal standing to parents to sue teachers and school administrators.”

Eagle County School District Superintendent Mel Preusser says he agrees with school board members on the position taken against the initiative.



Amendment 31 mandates non-English-language learners attend regular classrooms after one year of intensive instruction conducted in English. The following year they would be placed in a mainstream classroom. If passed, the measure would be enforced within 30 days of the election.

The measure allows a parent or legal guardian of a student learning English to apply for a waiver from the English immersion program if their child already knows English (measured by oral evaluation or standardized tests), or is 10 years of age or older or has mental and physical disabilities. All special education students wouldn’t be affected by the amendment.



Schools would have discretion in granting or denying the waiver. Children who are granted waivers will be transferred to bilingual education classes.

The same parents who were granted a waiver, however, can retain the legal right for 10 years to sue school administrators who granted them if they conclude the waivers were a mistake and ultimately injured the education of their child.

“The provision is confusing, since the parent would be the one asking for the waiver in the first place,” says school board member Carrie Tedstrom.



Parents or legal guardians also could sue school employees and school boards who willfully and repeatedly refuse to comply with the provisions of the initiative.

“The waiver option is a sham,” says Urschel. “The Colorado Supreme Court has characterized the waiver language as unfair and misleading.”

Rita Montero, the Colorado resident sponsor of Amendment 31, says the restrictions were included so school districts would abide with the change.

“The experience in California was that several school districts gave out too many waivers and too many teachers declined to teach in English,” Montero says. “That’s why we put such a strong waiver policy in Colorado.”

Proposition 227, a similar initiative that passed in California in 1998, also has waiver policies allowing parents to request their child stay longer in a bilingual program. But Jorge Garcia of English Plus, a grassroots group opposing Amendment 31, says there are some differences that give California greater leeway to grant waivers, including: California parents can’t retain the right to sue for 10 years; and emotional needs are included as a special need, in addition to physical and mental disabilities.

So far in California, there haven’t been any lawsuits, says Lauri Burnham of the California Department of Education.

“To the contrary,” she says. “There have been some complaints filed with the Department of Education from some parents saying that a school district didn’t allow them to put their kids in bilingual programs.”

Montero says there’s “a very high standard” parents have to prove.

“The dangerous waivers will be those granted to children with special needs,” Montero says.

School district superintendents and school board members would be the ones deciding on the waivers and therefore the most likely to be sued, Montero says.

“We thought that they would try to waive a lot of kids under the special needs category and it should be used very minimally,” Montero says. “If they violate this policy, if they skip any step, they would be in big trouble.”

Superintendents, principals and school board members also will be prevented from getting a liability insurance to protect themselves from lawsuits.

“They will not be able to have normal governmental immunity,” Urschel says. “School board members are community volunteers. It’s not fair to make them liable. If this amendment passes, who would want to be a school board member?”

Parental waivers

The following is an excerpt from Amendment 31 pertaining to parental waivers:

As detailed in subsections (3) and (4) of this section, all Colorado school children have the right to be provided at their public school of choice with an English language public education. The parent or legal guardian of any Colorado school child shall have legal standing to sue for enforcement of the provisions of this section, and if successful shall be awarded normal and customary attorney fees and actual and compensatory damages, but not punitive or consequential damages. Any school district employee or school board member who willfully and repeatedly refuses to implement the terms of this section may be held personally liable for attorney fees and actual and compensatory damages by the child’s parents or legal guardian, and cannot be subsequently indemnified.

For such assessed damages by any public or private third party. Any individual found so liable in a court of law shall be immediately removed from office for malfeasance, and shall be barred from holding any position of authority anywhere within the Colorado government or the public school system for a subsequent period of five years. Parents who apply for and are granted exception waivers under subparagraph (iii) of paragraph (b) of subsection (4) of this section still retain for 10 years thereafter the full legal right to sue the individuals who granted such waivers if they subsequently conclude during that period that the waivers were granted in error and ultimately injured the education of their child.

Editor’s note: To get the full text of Amendment 31, visit http://www.state.co.us/gov_dir/stateleg.html.

Veronica Whitney can be reached at 949-0555, ext. 454, or at vwhitney@vaildaily.com.


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