IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA VALERIA G., et al., Plaintiffs, v. PETE WILSON, Governor of the State of California, in his official capacity, et al., Defendants. ONE NATION/ONE CALIFORNIA, et al.,  Intervenors.   ) ) ) ) ) ) Case No.: C 98-2252 CAL     INTERVENORS' OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION       PRELIMINARY STATEMENT As the Supreme Court has recognized, "California's entire history demonstrates the repeated use of referendums to give citizens a voice on questions of public policy. * * * [R]eferendums have been a commonplace occurrence in the State's active political life. Provisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice." James v. Valtierra, 402 U.S. 137, 141-42 (1971). Because of the value of initiatives to the democratic process, courts are extremely reluctant to interfere with their implementation: Indeed, it is our solemn duty to jealously guard the precious initiative power, and to resolve any reasonable doubts in favor of its exercise. As with statutes adopted by the Legislature, all presumptions favor the validity of initiative measures and mere doubts as to validity are insufficient; such measures must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. Legislature v. Eu, 54 Cal. 3d 492, 501 (1991). Consistent with this tradition, on June 2, 1998, sixty-one percent of the California electorate voted in favor of Proposition 227, which generally requires that non-English speaking California public school children learn English at the earliest opportunity and then be transitioned into mainstream classrooms. Before all of the votes approving Proposition 227 had even been counted, however, Plaintiffs initiated this lawsuit and now ask for truly draconian relief: to renounce the will of the people and enjoin the implementation of a statute that does nothing more than replace one educational philosophy with another. Consistent with the Court's duty "to jealously guard the precious initiative power," the Court should not permit Plaintiffs at this preliminary stage to interfere with the public's will absent a clear showing that the educational philosophies underlying Proposition 227 cannot satisfy applicable law. Legislature, 54 Cal. 3d at 501.  "A preliminary injunction is appropriate if the moving party demonstrates either (1) probable success on the merits and the possibility of irreparable injury, or (2) serious questions going to the merits of the case and the balance of hardships favors the moving party." Quiroz v. State Bd. of Educ., No. Civ. S-97-1600 WBS/GGM, 1997 WL 661163 (E.D. Cal. Sept. 10, 1997) (denying preliminary injunction seeking to bar the implementation of a structured immersion program in place of a bilingual education program). As that court held, "even under the alternative test, the 'irreducible minimum' is that there be a fair chance of success on the merits." Id. at *3. In this brief, Intervenors show that Plaintiffs do not have a "fair chance of success" on their principal claims under the Equal Educational Opportunity Act, Title VI of the Civil Rights Act, and the Equal Protection Clause. ARGUMENT PROPOSITION 227'S EDUCATIONAL PROGRAM SATISFIES THE EEOA Plaintiffs' primary challenge to Proposition 227 is that it violates Section 1703(f) of the EEOA, 20 U.S.C. § 1703(f). To the limited extent that Proposition 227 is susceptible to review under Section 1703(f) at this time, the Court should find, in the words of the section, that the initiative is based on an educational philosophy pursuant to which California's "educational agencies" can "take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs." Plaintiffs' Claims Under The EEOA Are Largely Premature Mere hours after Proposition 227 was passed, Plaintiffs sued to block it, claiming that its implementation by the State Board of Education and local school districts eventually will violate the EEOA. At this posture of its implementation -- which is to say, within only weeks after the electorate approved the measure and before any state or local action has taken place -- Plaintiffs' claim is largely premature. Plaintiffs' challenge under Section 1703(f) of the EEOA, 20 U.S.C. Section 1703, if adjudicated now, would require this Court to undertake a fact-intensive examination of educational plans under the three pronged-test set forth in Castaneda v. Pickard, 648 F.2d 989, 1009-10 (5th Cir. 1981). Proposition 227, however, is not the type of detailed educational plan promulgated by the State Board of Education or a local school district that can be scrutinized under Castaneda. Rather, Proposition 227 makes the basic policy choice that LEP students be taught English at the earliest possible opportunity, and establishes certain flexible parameters for implementing this objective. Before Proposition 227 is manifested in an educational plan susceptible to review under Section 1703(f), the State Board and local school districts first must promulgate regulations and prepare educational plans implementing the Proposition.  Thus, as we demonstrate in greater detail below, a ruling now, addressing anything other than Proposition 227's fundamental philosophy that LEP students be taught English at the earliest possible opportunity, would improperly "entangle" in the decisions of state and local agencies before the regulations and plans of those agencies are "felt in a concrete way." Ohio Forestry Ass'n, Inc. v. Sierra Club, 118 S. Ct. 1665, 1670 (1998) . Plaintiffs Face An Impossible Task In Attacking Proposition 227 Under The EEOA Because California's educational agencies have not had the opportunity to create, much less implement, an education program based on the philosophy outlined in Proposition 227, this Court can evaluate only the educational philosophy that underlies the Proposition to ensure that it is "informed by an educational theory recognized as sound by some experts in the field, or at least, deemed a legitimate experimental strategy." Casteneda, 648 F.2d at 1009-10; Teresa P. v. Berkeley Unified School District, 724 F. Supp. 698, 713 (N.D. Cal. 1989); Quiroz, 1997 WL 661163 at *4. In doing so, the Court must uphold Proposition 227 against Plaintiffs' facial challenge unless Plaintiffs meet their heavy burden of "establish[ing] that no set of circumstances exists under which the [law] would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). Thus, for Plaintiffs to prevail, they must prove that no school district -- regardless of the funding that district provides for implementation, its interpretation of Proposition 227, or the richness or breadth of its structured English immersion programs -- could possibly implement an educational plan that would pass muster under § 1703(f). Plaintiffs' task is impossible, because the philosophy that underlies Proposition 227 -- Sheltered English Immersion -- has been accepted as sound by a broad range of courts and educational experts. This Court defer to the public's choice of this legitimate educational approach. The Preference For Sheltered English Immersion Embodied In Proposition 227 Has Already Been Upheld Under The EEOA  Two district courts in Ninth Circuit already have held that a school district's decision to satisfy its EEOA obligations by emphasizing techniques similar to Sheltered English Immersion, rather than the sort of bilingual education program that Plaintiffs argue must be used, did not violate Section 1703(f). First, in Teresa P., Judge Jensen was asked to review a program that "stress[ed] English language development intended to help the student gain fluent English proficiency * * * as quickly as possible, in order to participate in academic classes taught in English." 724 F. Supp. at 703. As the court noted, particular emphasis was placed on "sheltered English" instructional strategies, which "uses techniques such as a slower pace, vocabulary definition, and visual aids and props to facilitate comprehension for students who need help with their English." Id. at 708. Judge Jensen then held that the program was "sound," despite the plaintiffs' arguments that bilingual education was a superior approach to remediating students' language barriers:  Although Plaintiffs advocate a program that emphasizes native tongue instruction, they introduced no objective evidence demonstrating that the efficacy of this approach, whatever it may be, for teaching LEP students English, or helping them succeed in a mainstream environment, renders the alternative programs preferred by BUSD pedagogically in sound. Id. at 714.  Similarly, in Quiroz v. State Board of Education, No. Civ. S-97-160 WBS/GGH, 1997 WL 661163 (E.D. Cal. Sept. 10, 1997), the plaintiffs challenged the Orange, California school district's plan to "move[] away from bilingual education and toward a predominantly English curriculum." Id. at *4. As the court wrote, "[t]he program theory is premised on the notion that language proficiency is best obtained by lingual immersion: the greater the 'time on task,' in this case learning English, the greater the acquisition rate." Id. at *5. As in Teresa P., the plaintiffs complained that "bilingual education is a better instructional method than the one proposed by the District." Id. But the court rejected this argument, holding that "[t]he alternative plan is within the boundaries of acceptable educational theory." See also Castaneda, 648 F.2d at 1006 (rejecting plaintiffs' complaint that program "overemphasizes the development of English language skills to the detriment of the child's overall cognitive development"). Indeed, in Guadalupe, the Ninth Circuit squarely held that the EEOA does not require educational agencies to address the special educational needs of LEP students by using so-called "bilingual-bicultural education" programs like those that Plaintiffs seek in this case. 587 F.2d at 1030. Educational Experts Also Recognize That Proposition 227 Is Based On A Sound Educational Philosophy " \l 2 As Dr. Rosalie Pedalino Porter declares, "in my judgment, the basic approach that best serves the need of limited English children is the early, intensive learning of English." (Porter Dec. ¶ 8; see also id. ¶¶ 17, 20.) Dr. Christine Rossell concurs. She declares that "the results of [her] systematic research review * * * comparing structured immersion to transitional bilingual education show no studies where TBE is superior to structured immersion in reading, language, or math.  * * *  Thus, the scientific research on this subject overwhelmingly indicates that sheltered or structured immersion is superior and at worst equal to transitional bilingual education." (Rossell Dec. ¶ 33; see also Gersten Dec. ¶¶ 14-20, 25-26, 40 (describing studies that prove that sheltered English Immersion technique is sound and just as successful, if not more so, than bilingual education techniques). The conclusions reached by Porter, Rossell and Gersten are supported by the widespread use of Sheltered English Immersion techniques around the world. As Charles Glenn declares, "Proposition 227 provides for a one-year period (in most cases) of intensive English-language instruction and rapid transition into a regular classroom. This in fact describes the norm for the schooling of immigrant and other language-minority children in every country except the United States for which I have been able to obtain information." (Glenn Dec. ¶ 11.) The California public has chosen to modify its program for LEP students by shifting towards an educational philosophy that has been implemented successfully throughout the world -- an English-based instruction approach with primary language support components. There is little doubt that Proposition 227 is based on "an educational theory recognized as sound by some experts in the field." Castaneda, 648 F.2d at 1009; Teresa P., 724 F. Supp. at 713. The Court Should Defer To The California Public's Decision To Use Sheltered English Immersion The Court Should Defer To The California Public's Decision To Use Sheltered English Immersion " \l 2 The courts have recognized that they are "ill-equipped" to select the instructional approach for educating LEP students. As Judge Jensen stated, "[t]his Court agrees with * * * the warnings * * * that courts should not substitute their educational values and theories for the educational and political decisions properly reserved to local school authorities and the expert knowledge of educators." Teresa P., 724 F. Supp. at 713. Plaintiffs argue, without citing a single case, that this same deference should not be accorded to mere "public opinion" as expressed through California' initiative process. (Mot. at 30.) Plaintiffs are wrong. In fact, the initiative process articulates "one of the most precious rights of our democratic process." Rossi v. Brown, 9 Cal. 4th 688, 695 (1995) (holding that under the initiative power, the electorate may prospectively repeal a tax ordinance and bar future adoption of a tax). Thus,"[w]hen the electorate assumes to exercise the law-making function, then [it] is as much a state agency as any of its elected officials." Mulkey v. Reitman, 64 Cal. 2d 529 (1966), aff'd, 387 U.S. 369 (1967).  Because Proposition 227 embodies a demonstrably sound educational approach, this Court should defer to the public's will. PLAINTIFFS' ATTACKS ON PROPOSITION 227'S POST-IMPLEMENTATION IMPACTS ARE PREMATURE AND WITHOUT MERIT The Bulk Of Plaintiffs' EEOA Claim Lacks Ripeness Because No Educational Plan Yet Exists That Can Be Challenged " \l 2 1. The EEOA's Terms Demonstrate That Review Is Premature The text of Section 1703(f) demonstrates that it applies only to actions by "educational agencies;" i.e., the State Board or local school districts, and does not apply in the context of legislative action or state-wide initiatives such as Proposition 227. Here, where no such action yet has occurred, the review sought by Plaintiffs is premature. The reported cases applying Section 1703(f) are in accord. All but three of the cases involve analysis of plans implemented at the local school district level. In the three cases that considered state educational agency action, Plaintiffs challenged specific acts or omissions of state boards of education, not legislative acts or statewide ballot initiatives. In one of those cases, United States v. Texas, the initial EEOA claim had been rendered moot because while the case was pending Texas enacted statewide educational legislation. In discussing possible future challenges, the court described in detail the inefficacy of attempting to analyze a statewide rule under section 1703(f):[W]e conclude that there exists little if any practical or logical justification for attempting to deal on a statewide basis with the problems presented by this case. As we noted in Castaneda v. Pickard, supra, in enacting section 1703(f), Congress left the state and local authorities substantial latitude to select programs and techniques of language remediation suitable to meet their individual problems. Texas' 1981 Act does likewise as to local school districts. * * * Either the actual, local program as it operates on actual, local students is an appropriate response to their language problems or it is not. * * * We fail to see how such questions as these can be properly resolved in the absence of the school district concerned or how they can effectively be dealt with on a statewide basis.680 F.2d 356, 373-74 (5th Cir. 1982). Plaintiffs can point to no case that subjects to EEOA scrutiny a legislative act such as Proposition 227. 2. The Court Should Not Hear Plaintiffs' Challenge Because Further Agency Interpretation Will Occur " \l 3 Because Section 1703(f)'s only potential application is to "failure[s] by an educational agency," courts "review a state's implementation of Section 1703(f) in a manner similar to that which [they] employ in reviewing an administrative agency's interpretation and implementation of its legislative mandate." Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1037, 1041 (7th Cir. 1987).  In similar circumstances involving facial challenges to laws that were to be fleshed out by means of post-enactment regulations, courts repeatedly have found the challenges to be premature. E.g., Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264 (1981) (facial challenges on takings grounds to Surface Mining Act were premature before the state's promulgation of regulations construing and enacting that act); Nixon v. Adm'or of Gen. Servs., 433 U.S. 425, 438-39 (1977) (challenge to the validity of act that required former President to make presidential materials available to the public was not ripe until Administrator promulgated implementing regulations). This Court likewise should reject Plaintiffs' claims under the EEOA challenging the future implementation of Proposition 227. Presently, there is no possible way to determine how state and local agencies will interpret and give effect to Proposition 227. Indeed, Plaintiffs doubtless will participate in the State Board's proceedings leading up to its promulgation of regulations implementing Proposition 227, and also in many local district actions that follow such promulgation. Plaintiffs' opening brief highlights the impossibility of now reviewing Proposition 227's post-implementation impacts under section 1703(f). Plaintiffs complain about a number of detailed features not found in the Proposition's intentionally general terms. For example, Plaintiffs complain that Proposition 227 contains "no provision for equal curricular access anywhere within the initiative" creating a "legally intolerable" "state vacuum" (Mot. at 28); does not specify "any academic content" (Mot. at 32); "is fatally deficient in establish teaching standards" (Mot. at 34); "fails to provide for any remedial instruction to recoup the academic deficits incurred by [LEP students] during [the English immersion] program" (Mot. at 42); makes no mention of school subjects in its text and, therefore, "Proposition 227 relegates subject matter learning to a position of secondary importance" (Mot. at 14); and contains no language addressing program flexibility and, therefore, it "forbid[s] flexibility and individual tailoring," and is a "'One-Size-Fits-All' Program." (Mot. at 15-16.) These of course are the specific matters that the State Board and local school district educational plans ultimately are likely to contain. Further underscoring the prematurity of their claims, Plaintiffs throughout their brief improperly ascribe a specific and concrete meaning to several broadly worded provisions of Proposition 227 that have not yet been construed and acted upon by the State Board or local districts. 3. The Fact-Intensive Test Required By Castaneda Cannot Be Performed On Proposition 227 " \l 3 Courts are especially reluctant to review pre-implementation challenges when they must conduct fact-specific analyses, such as that required by Castaneda. Until Proposition 227's broad directive of structured English immersion is manifested in one or more tangible educational plans capable of analysis under the Castaneda test, no examination under Section 1703(f) is possible. Particularly troubling in this regard are Plaintiffs' arguments that Proposition 227 cannot pass muster under Castaneda's second and third prongs. The second Castaneda prong requires an examination of "whether the programs and practices actually used by a school system are reasonably calculated to implement effectively the educational theory adopted by the school." 648 F.2d at 1009. No such school system implementation presently can be examined. Likewise, the third Castaneda prong requires courts to examine whether districts are effectively evaluating educational programs to determine whether they were taking "appropriate action" to remedy language deficiency. Castaneda, 648 F.2d at 1010. Proposition 227 does not attempt to address program evaluation, leaving entirely open to the State Board and local school districts the methods and models to be used in evaluating the success of programs implemented by local districts. Plaintiffs' EEOA Claim Is Not Ripe Because They Have Not Established That Proposition 227 Will Adversely Affect Them Plaintiffs' EEOA Claim Is Not Ripe Because They Have Not Established That Proposition 227 Will Adversely Affect Them " \l 2 Until Proposition 227 is implemented by the State Board and local school districts, there is no way to know what impacts, if any, it will have on Plaintiffs. In similar circumstances, courts repeatedly have withheld review until either the challenged law actually is applied to the parties challenging it, or the specific impacts of such an application can be determined. Ohio Forestry Ass'n, Inc., 118 S. Ct. at 1672 (challenge to U.S. Forrest Service logging plan was not ripe because "review would have to take place without benefit of the focus that a particular logging proposal could provide.  * * * And, of course, depending upon the agency's future actions to revise the Plan or modify the expected methods of implementation, review now may turn out to have been unnecessary."). Courts especially refrain from hearing facial challenges to provisions that, like Proposition 227, allow an implementing agency to exercise its discretion. Action Alliance of Senior Citizens, 789 F.2d at 941 ("A facial, purely legal challenge is both more difficult and less worthwhile when the prescription challenged is discretionary.")  Here, Plaintiffs in essence are complaining that they may be injured if they are subjected to structured English immersion. Even after Proposition 227 is implemented, however, there is no certainty that Plaintiffs in fact will be placed in such a program, because they may apply for, and receive, a waiver that allows them to remain in a bilingual education program. Prop. 227 § 310. Plaintiffs' challenge is not ripe for review until this Court can determine whether Proposition 227 will apply to the Plaintiffs bringing this action.  Proposition 227 provides for waivers for children who "score at or above the state average for his or her grade level" in English, score "at or above the 5th grade average", are 10 years or older or have "special physical, emotional, psychological, or educational needs." (See Prop. 227 § 310.) Unless and until Plaintiffs establish that they will not be able to obtain such waivers, their challenges to Proposition 227 are not ripe.  In Any Event, Plaintiffs' Attacks Against Proposition 227 Fail " \l 2 Plaintiffs launch a series of attacks against Proposition 227. Although these attacks should be rejected as premature, they also fail because they are either based on distortions of Proposition 227 or the requirements of the EEOA. Proposition 227 Is Sufficiently Flexible. Plaintiffs complain that Proposition 227 "sets a maximum level of effort to address the needs of LEP students" because it "permits only one program for LEP students, a 'sheltered English immersion' program." (Mot. at 28:3-5.) Apparently, Plaintiffs did not read the initiative carefully. The Proposition actually provides that students and their parents "be provided a full description of the educational materials to be used in the different educational program choices and all the educational opportunities available to the child." (Prop. 227, § 310.) The Proposition then specifically provides that, once those choices have been presented to the child, the parents and school administrators may transfer the child to "classes where they are taught English and other subjects through bilingual education techniques or other generally recognized educational methodologies permitted by law." The Proposition also requires that school districts ensure the availability of such alternative educational opportunities. (Id.) (See Porter Dec. ¶ 29.) Proposition 227's "One-Year" Sheltered English Immersion Approach Can Work. Plaintiffs complain that a one-year Shelter English Immersion program cannot possibly be sound because the standard sought by the initiative -- "a good working knowledge of English" -- is not set sufficiently high so as to guarantee that LEP students' language skills are equal to native-English speaking students. (Mot. at 31-32.)  Plaintiffs have distorted Castaneda's requirements. Castaneda holds that educational agencies need only design a program that is "reasonably calculated to enable [LEP] students to attain parity of participation in the standard instructional program within a reasonable length of time after they enter the school system." 648 F.2d at 1011. The Sheltered English Immersion plan, upon which Proposition 227 is based, clearly satisfies this requirement. (Rossell Dec. ¶ 58; Porter Dec. ¶ 26; Glenn Dec. ¶ 20.) Moreover, those students who are not capable of achieving sufficient English competency to move into mainstream classes after one year can return to the immersion setting for additional training. As Dr. Porter states, "[t]he phrase 'not normally to exceed one year' does not and should not establish any numerical quota for exiting students to mainstream classrooms before they are prepared or for inappropriately assigning students to special education programs or retention in grade." (Porter Dec. ¶ 27.) Proposition 227 Addresses LEP Students' Other Educational Needs. Plaintiffs argue that Proposition 227 is defective because students will fall behind in "other areas of the curriculum" during their stay in English Immersion classrooms (Mot. at 32-33.) Again, Plaintiffs have misread Castaneda. Contrary to Plaintiffs' assertion, the Fifth Circuit did not require that school districts provide remedial education in "other areas of the curriculum" at the same time as they received English training. 648 F.2d at 1011. Just the opposite is true. The court actually held that a school district may wait to provide remedial education in "other areas of the curriculum" until after the intensive English-language training has been completed. See also Guadalupe, 587 F.2d at 1029-30. Thus, the temporary delay of access to the full curriculum while a student is learning English has been found not to violate federal statutes. Proposition 227 Can Be Implemented. Plaintiffs contend that the Proposition "will force state educational agencies to violate the responsibilit[y]" to supervise local district efforts to satisfy the EEOA's provisions. (Mot. at 25-29.) In Gomez, the Seventh Circuit suggested that the state must establish "general" guidelines "assuring the implementation of the state's programs." Gomez, 811 F.2d at 1042. See also Idaho Migrant Council, 647 F.2d at 71 (the state must supervise local school district efforts to remediate their students' language barriers). Although it is far too early to judge whether California's educational authorities will establish general guidelines that satisfy Idaho Migrant Council and Gomez the State Board of Education is in fact drafting such guidelines. Relatedly, Plaintiffs complain that Proposition 227 fails to ensure effective implementation of its educational theory. Again, it is too early to determine whether the local school districts will properly implement Proposition 227. (See pages 9-10, above.) It is worth noting, however, that Drs. Porter and Rossell, as well as Messrs. Glenn, Gersten and Clark declare that the Sheltered English Immersion program can be implemented before the school year begins in September. (Glenn Dec. ¶¶ 24-25; Clark Dec. ¶¶ 11-15; Rossell Dec. ¶¶ 75-76; Porter Dec. ¶¶ 31-32; Gersten Dec. ¶¶ 54-58.) PROPOSITION 227 DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE Plaintiffs argue that Proposition 227 violates the Equal Protection Clause because it is not narrowly tailored to serve a compelling state interest. (Mot. at 46-53.) But Plaintiffs base their entire argument upon the wrong level of Equal Protection scrutiny. Because Proposition 227 is based on an educational issue, rather than a racial issue, it is governed by "rational basis" analysis. And because California has a legitimate state interest in improving the education of LEP students and because Proposition 227 is rationally related to that purpose, Plaintiffs cannot demonstrate a likelihood of success on the merits of their Equal Protection claim.  A. The Level Of Equal Protection Scrutiny Depends On The Classification "The first step in determining whether a law violates the Equal Protection Clause is to identify the classification that it draws." Coalition For Economic Equity v. Wilson, 122 F.3d 692, 702 (9th Cir.), cert. denied, 118 S. Ct. 397 (1997). As a general rule, classifications are presumed valid under the Equal Protection Clause. Id. A classification "will deny equal protection only if it is not 'rationally related to a legitimate state interest.'" Id. (citation omitted). In order for strict scrutiny to apply, a statute must either (1) classify based on race on its face or (2) if "ostensibly neutral," it must contain "an obvious pretext for racial discrimination." See Personnel Adm'or of Mass. v. Feeney, 442 U.S. 254, 272 (1979); Miller v. Johnson, 515 U.S. 900, 905 (1995) (prohibition against racial classifications "extends not just to explicit racial classifications, but also to laws neutral on their face but 'unexplainable on grounds other than race'") (citations omitted).  If the law is facially neutral, it "is unconstitutional under the Equal Protection Clause only if [its] impact can be traced to a discriminatory purpose." Feeney, 442 U.S. at 272. Discriminatory intent "implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker * * * selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Id. at 279 (veterans' hiring preference law clearly enacted for purposes of rewarding veterans; not for purposes of harming women).  B. Proposition 227 Classifies Based On An Educational Issue, Not Race Although Plaintiffs base their entire Equal Protection claim on the assumption that "strict scrutiny" applies, they cannot demonstrate that Proposition 227 falls within either of the established grounds for applying strict scrutiny. First, the only classification drawn by Proposition 227 is the level of English proficiency of public school children. It contains no racial classification on its face. Second, as demonstrated below, Plaintiffs cannot prove Proposition 227 was passed by a majority of California voters for discriminatory reasons. 1. Plaintiffs Cannot Demonstrate Discriminatory Purpose Plaintiffs challenging a facially neutral initiative face the difficult burden of attempting to prove discriminatory animus on the part of the electorate. For example, in Crawford v. Bd. of Ed., 458 U.S. 527, 545 (1982), the Supreme Court addressed an Equal Protection challenge to California's Proposition I, which prohibited state courts from ordering pupil school assignment or transportation in the absence of a Fourteenth Amendment violation. In rejecting the Plaintiffs' argument that Proposition I was passed for discriminatory reasons, the Supreme Court noted that (1) "the Proposition was approved by an overwhelming majority of the electorate"; (2) "[i]t received support from members of all races"; and (3) ""[t]he purposes of the Proposition are stated in its text and are legitimate, nondiscriminatory objectives." Based on those circumstances, the Court held "we will not dispute the judgment of the Court of Appeal or impugn the motives of the State's electorate." Id. In fact, because of the value of referendum elections, legal prohibitions against inquiring into the motives of individual voters, and the inherent difficulties in ascertaining the motivation of the electorate, many courts refuse to even address claims that an electorate passed a facially-neutral law for discriminatory reasons. See Arthur v. City of Toledo, Ohio, 782 F.2d 565, 574 (6th Cir. 1986) ("We hold that absent a referendum that facially discriminates racially, or one where although facially neutral, the only possible rationale is racially motivated, a district court cannot inquire into the electorate's motivations in an equal protection clause context."); Clark v. Cincinnati, 40 F.3d 807 (6th Cir. 1994) (noting that in Arthur the Sixth Circuit concluded that 'neither the Supreme Court nor this Court has ever inquired into the motivation of voters in an equal protection clause challenge to a * * * facially neutral referendum unless racial discrimination was the only possible motivation behind the referendum'"); Metropolitan Hous. Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1292 (7th Cir. 1977), ("[t]he bigoted comments of a few citizens, even those with power, should not invalidate action which in fact has a legitimate basis").  Here, Plaintiffs do not even attempt to show a likelihood of success in satisfying their burden of proving that a majority of the voters of the state of California voted in favor of: a facially-neutral proposition; that speeds up the assimilation of LEP students into mainstream classrooms; that appropriates $50,000,000 a year from the general fund for extra tutoring of LEP students; that requires "all children in California public schools [] be taught English as rapidly and effectively as possible" -- for the purposes of discriminating against a minority group.  In fact, Plaintiffs cannot argue that LEP status is an illusory proxy for racial or national origin discrimination, because the Plaintiffs themselves argue that LEP children and English proficient children are not similarly circumstanced and should not be treated alike. As Plaintiffs acknowledge, LEP students were already a defined group under existing California law. See Mot. at 3 n.2 ("Under California law before the passage of Proposition 227, LEP students were defined as 'pupils who * * * ") (citing Cal. Educ. Code §§ 52161, 52163(m).).  2. Courts Address Educational Issues Under The Rational Basis Test Because Plaintiffs acknowledge that LEP status is a necessary classification, they cannot seriously dispute that the only question raised by Proposition 227 is not one of race, but rather one of educational methodology: what is the best method of educating California's LEP students? The rational basis test applies to educational classifications. E.g., Guadalupe Org., Inc., 587 F.2d at 1026; Villanueva v. Carere, 873 F. Supp. 434, 448 (D. Colo. 1994) ("The Court notes that education is not a fundamental right. Because the Charter Schools Act is facially neutral and does not implicate a fundamental right, the Act will be reviewed under a rational relationship test."), aff'd, 85 F.3d 481 (10th Cir. 1996). In Guadalupe, the Ninth Circuit expressly addressed the issue of whether bilingual education in public schools was constitutionally required and did so using rational basis analysis. 587 F.2d at 1026. The Ninth Circuit noted that because "appellees only differentiate explicitly among students with respect to the provisions of remedial English instruction, no [claim that appellees employed a 'suspect classification'] is possible." Id. Similarly, in Villanueva, a court addressed a claim that the decision to close certain public schools violated the Equal Protection clause because it had a disparate impact upon Hispanic students. 873 F. Supp. at 447-50. The court rejected the argument that the use of "at-risk" status as a classification constituted a classification based on race. Id. at 448 ("Although Hispanics are a protected class, 'at-risk' status does not constitute a protected class because students are not treated differently because of their race, national origin, or status as aliens."). C. Plaintiffs Cannot Evade The Fatal Infirmities Of Their Equal  Protection Claim By Styling It As A "Political Process" Claim Conceding that Proposition 227 does not classify based on a protected class and that they cannot demonstrate a likelihood of success in meeting their burden of proving discriminatory intent, Plaintiffs argue that there is a third basis for the application of "strict scrutiny." Relying solely upon Washington v. Seattle School District No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969), Plaintiffs argue that strict scrutiny applies where the political process is restructured relating to a program that inures primarily to the benefit of a minority group -- even if the initiative is facially neutral and was passed for non-discriminatory reasons. (Mot. at 48.) Plaintiffs are wrong. Neither Washington nor Hunter represents a departure from the requirement that in order to justify strict scrutiny, a statute must either (1) discriminate on its face or (2) contain an illusory proxy for race that was used for discriminatory purposes. In Hunter, the initiative at issue required that any housing ordinance passed by the city "on the basis of race, color, religion, national origin or ancestry must first be approved by a majority of the electors voting on the question * * *" Hunter, 393 U.S. at 387. Because it discriminated on its face, strict scrutiny necessarily applied. Id. at 392 ("racial classifications are 'constitutionally suspect,' and subject to the 'most rigid scrutiny'") (citation omitted).  In Washington, the Supreme Court addressed an initiative that effectively allowed student busing for any reasons except desegregation. 458 U.S. at 462. Despite the facial neutrality of the initiative, the Supreme Court had no trouble in determining that the initiative was based on race and passed for discriminatory reasons. Id. at 471 ("despite its facial neutrality there is little doubt that the initiative was effectively drawn for racial purposes"). In applying strict scrutiny, the Supreme Court made it clear that it was not departing from the requirement of discriminatory intent for facially neutral statutes: "[W]hen facially neutral legislation is subjected to equal protection attack, an inquiry into intent is necessary to determine whether the legislation in some sense was designed to accord disparate treatment on the basis of racial considerations." Id. at 484-85. Moreover, in the sixteen years since Washington was decided, no court has interpreted Hunter or Washington as eliminating the "intent" requirement for any type of Equal Protection claim. See, e.g., Keyes v. Congress of Hispanic Educators, 902 F. Supp. 1274, 1284-85 (D. Colo. 1995) ("the Washington case is another step in the evolution of Equal Protection Clause jurisprudence and must be read in the context of * * * later cases * * * As read by the Supreme Court, the Washington initiative only prevented school boards from assigning students away from their neighborhood schools for the purpose of racial integration. Thus, the initiative had a racial purpose.").  Not only are there no cases that support Plaintiffs' interpretation of Washington and Hunter, Plaintiffs fail to reveal that the Supreme Court has considered and explicitly rejected extending the Hunter doctrine to statutes that neither discriminate on their face nor were enacted for a discriminatory purpose: Unlike the Akron referendum provision [in Hunter], it cannot be said that California's Article XXXIV rests on "distinctions based on race." The Article requires referendum approval for any low-rent public housing project, not only for projects which will be occupied by a racial minority. And the record here would not support any claim that a law seemingly neutral on its face is in fact aimed at a racial minority. The present case could be affirmed only by extending Hunter, and this we decline to do. James v. Valtierra, 402 U.S. 137, 141 (1971). In Crawford, the Supreme Court again rejected extending Hunter to cover a facially neutral California initiative. In distinguishing Hunter and refusing to apply strict scrutiny, the Supreme Court held that "Proposition I does not embody a racial classification" and that "even if Proposition I had a racially discriminatory effect * * * this Court previously has held that even when a neutral law has a disproportionately adverse effect on a racial minority, the Fourteenth Amendment is violated only if a discriminatory purpose can be shown." 458 U.S. at 537-38. The Supreme Court in Crawford also rejected Plaintiffs' argument that a program designed to benefit a minority group cannot be repealed by the people: Nor would the purposes of the [Fourteenth] Amendment be furthered by requiring the States to maintain legislation designed to ameliorate race relations or to protect racial minorities but which has produced just the opposite effects. Yet these would be the results of requiring a State to maintain legislation that has proved unworkable or harmful when the State was under no obligation to adopt the legislation in the first place. Id. at 539-40 (people could repeal desegregative busing that was not constitutionally required via the initiative process). In sum, because Plaintiffs have not shown (and cannot show) that Proposition 227 was passed for racial reasons, rather than educational reasons, they have not demonstrated a likelihood of success under any Equal Protection Clause theory.  PLAINTIFFS CANNOT MAKE OUT A TITLE VI CLAIM Title VI provides that, "[n]o person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. The federal regulations promulgated under Title VI state that if the inability to understand English effectively deprives a national origin-minority group of children from participating in the school's educational program, "the district must take affirmative steps to rectify the language deficiency." 34 C.F.R. § 100.3(b)(2). In Keyes, 576 F. Supp. at 1519, the court held that "it is not necessary to consider * * * Title VI. Section 1703(f) is a much more specific direction and to take appropriate action under it would necessarily redress any violation of the equal educational opportunities requirements of Title VI." As shown above, Proposition 227 is based on an educational theory that satisfies Section 1703(f). Title VI is therefore satisfied as well.  Moreover, "Title VI, like the Equal Protection Clause, is violated only by conduct animated by an intent to discriminate." Castaneda, 648 F.2d at 1007. In Guardians Ass'n v. Civil Service Comm'n, 463 U.S. 582 (1983), a majority of the Supreme Court held that proof of discriminatory effect may also establish liability under Title VI. 463 U.S. at 608 n.1 (Powell, J. concurring); see also Gomez, 811 F.2d at 1044-45; Teresa P., 724 F. Supp at 716. Here, as shown above, Plaintiffs cannot show that Proposition 227 will classify students based on race. (See 16-19, above.) Moreover, Plaintiffs have not offered any evidence of discriminatory intent on the part of the defendants. Nor have they adduced any evidence, statistical or otherwise, of racially discriminatory effect. Therefore, this Court should dismiss Plaintiffs' Title VI claim. See Teresa P., 724 F. Supp. at 717 (plaintiffs failed to sustain burden of proof under Title VI). Even if the Plaintiffs could show a discriminatory effect, they concede that they do not have a fair chance of succeeding on the merits if Proposition 227 has a "legitimate educational purpose." (Mot. at 45.) As shown above, Proposition 227 is based on a sound educational theory that has been used successfully around the world. Finally, Plaintiffs argue that they can prevail on their Title VI claim if less discriminatory alternatives exist. This argument is simply a restatement of their basic position: they would prefer that bilingual education be used rather than English immersion. Although bilingual education will remain an alternative for children and parents who prefer that approach, the Ninth Circuit already has rejected the argument that it must be provided. California need not provide bilingual education. See Guadalupe, 587 F.2d at 1030. CONCLUSION For the foregoing reasons, Plaintiffs' motion for preliminary injunction should be denied. DATED: June 24, 1998. PETER SIMSHAUSER CARL ALAN ROTH AYAZ SHAIKH ROBERT P. PONGETTI PAUL M. ECKLES         By: ________________________________ Peter Simshauser  Attorneys for Intervenors