Board Unanimously Rejects Amendment 31

The Board of Education this week took strong and unanimous opposition to Amendment 31, a proposed change to the Colorado Constitution that would mandate that English language learners attend regular classrooms after one year of intensive instruction conducted in English.

The proposed Amendment “ignores the individual learning needs of children; conflicts with Denver’s federal court-ordered program; severely limits parental choice; changes current constitutional provisions calling for local control of education; and will eliminate current and future dual language programs,” said the resolution, which also urged voters to reject the proposal at the ballot box in November.

Approval of the resolution followed a special meeting Wednesday, Sept. 4 when the Board quizzed proponents and opponents of the proposed Amendment and heard from nearly 50 individual community members.

When the time came to vote, Board members were unequivocal.

“I believe in Denver parents, I believe in choice, I do not believe in this amendment,” said Board member James Mejia. At a time when government web sites are being published in Spanish, when courts are ordering Spanish translations for election ballots, and when top radio stations serve Spanish-speaking audiences, he added, “this initiative flies in the face of learning other languages.”

Board member Les Woodward pointed out that an independent legal counsel found that the ballot language is “too vague to be implemented” and that “there are a number of terms throughout the amendment that are unclear.” Courts will certainly be needed to interpret the amendment’s true meaning, he said. “This is really bad constitutional law and we really need to oppose it for that reason alone, in addition to all the educational limitations it creates,” he said.

To the notion that the proposed Amendment allows parents to ask for an option out of immersion programs, Woodward said parents should not be misled. “I do not believe that anybody…could reasonably conclude that there is a possibility of having waivers, especially for children under the age of ten,” he said.

Board member Sue Edwards said the only area of agreement between the authors of the proposed amendment and Denver Public Schools is that both agree it’s important that students who don’t speak English learn the new language as quickly as possible.

But the amendment presents many problems, she said, including “the constraints on parental choice, the impact on local control, the financial impact on school districts, the thought of bad law and putting it into our constitution.”

Colorado voters, cautioned Board member Michelle Moss, should read the whole proposal. “I can tell you that my greatest concern in this election is that this initiative would be passed by the citizens of Colorado without fully understanding what it does,” she said.

The proposal, she said “tricks us into thinking that one year (of immersion) is enough…and we know that isn’t true.” Added Moss: “What I think we don’t want is a one-size fits all program that may or may not serve the needs of our children.”

Prior to being elected, Board member Kevin Patterson recalled that he printed out campaign fliers promoting his support of expanding school choices in the district. Amendment 31 would limit choice, he said, “and this goes against what I decided I would do as a member of the Board of Education.”

Board member Lucia Guzman warned that the proposal would “endanger this district.” While she conceded that the current English Language Acquisition program needs improvement – as did Superintendent Jerry Wartgow during comments later – she said the proposed Amendment is “not the right way” to serve English language learners.

The next 20 years will bring even more diversity to the district, said Guzman, and the district should be “working on a better solution to enhance and embrace the kinds of children” who are on the way.

As the Board member who represents northwest Denver, home to Academia Ana Marie Sandoval, she also criticized authors of the amendment for their “audacity” in writing a proposal that has the potential to end the highly successful Dual Language program that is taught there.

“I strongly urge the voters of Denver and the voters of Colorado to read beyond the very beginning of this proposed amendment,” said Board President Elaine Gantz Berman. “This is a very, very dangerous law if this goes into effect...”
“The devils are in the details of this amendment,” said Berman. “It is very dangerous and it will be very harmful for kids.”

Superintendent Jerry Wartgow said his concerns about the Amendment had grown during the course of the Board’s exploration of the proposal.

“This amendment is poorly drafted, it’s extremely ambiguous, and there are numerous terms that are not defined and it will certainly result in a legal quagmire that will bog us down in this state for years to come,” he said.

The “extreme requirements” for waivers to be granted and the severe penalties facing those who might grant waivers and later encounter a lawsuit “effectively eliminate choice,” he said.

During the evening public hearing, Denver Classroom Teachers Association Becky Wissink applauded the Board for taking a “strong, passionate stand” against the proposed amendment. “Amendment 31 is not the right solution,” she said.

Following is the complete text of the resolution approved by the Board of Education this week:

WHEREAS, in November the citizens of Colorado will vote on a proposed Amendment to Article IX of the Colorado Constitution called the English Language Education Initiative; and

WHEREAS, Denver Public Schools supports the concept that children should acquire English as quickly as possible; and

WHEREAS, the Board of Education has carefully reviewed this proposed Amendment and has held a hearing at which the drafters and proponents of the Amendment, as well as opponents of the Amendment, have testified and answered questions from the members of the Board; and

WHEREAS, the Board of Education has considered the possible impact of the proposed Amendment on the English language instruction programs available to students in Denver Public Schools; and

WHEREAS, the Board has considered the reduced options that would be available to their parents if the Amendment is approved; and

WHEREAS, the proposed Amendment requires that all children who are learning English shall be educated through sheltered English immersion during a temporary transition period not normally intended to exceed one year, and would assign virtually all English learners to classrooms taught “overwhelmingly in English,” regardless of their individual needs, the advice of professionals, the determination of local school boards, or the wishes of parents; and

WHEREAS, this proposed Amendment permits parents/guardians to apply for waivers in only three situations: (1) where the child already knows English (child scores at or above the state average for his/her grade level), (2) the child is ten years old or older, or (3) after spending thirty (30) days in an English classroom if the school principal, educational staff and superintendent believe that the child has special and individual physical or psychological needs above and beyond the child’s lack of English proficiency; and

WHEREAS, the proposed Amendment provides no definition of the term “special and individual physical or psychological needs” nor any additional description of how these needs might be identified or determined; and

WHEREAS, the proponents of the Amendment could not describe, under repeated questioning from the Superintendent and the Board of Education, a single student who might be eligible for a waiver under exception (3) above; and

WHEREAS, the personal liability provision of the proposed Amendment makes it extremely unlikely that any school official would risk granting waivers, effectively mandating the immersion program described in the Amendment as the only instructional method for teaching English to English language learners; and

WHEREAS, although the proposed Amendment prohibits school officials from granting waivers except in very restrictive circumstances, school officials can deny waivers for any reason or no reason at all; and

WHEREAS, the Amendment provides that for ten years after a special-needs waiver is granted a parent or legal guardian who requested a waiver may sue individuals granting a special needs waiver if the parent or legal guardian later concludes that the waiver was granted in error and injured the child’s education; and

WHEREAS, approval by voters of this Amendment would dismantle the educational program at Academia Ana Marie Sandoval, a Dual Language school developed and organized by community members in northwest Denver that enjoys strong parental support and after just one full year of operation has attracted a long waiting list of potential students; and

WHEREAS, the District is operating under a federal court order to implement a particular English Language Acquisition Program that begins transitioning students into English the first day they enroll in the program and provides parental right to choose among sheltered English immersion classes, traditional native language, and/or all instruction in English as the method of instruction for their children; and

WHEREAS, the Amendment would require the district to spend money on a program but provides no new revenue to pay for the program’s implementation, amounting to an unfunded mandate; and

WHEREAS, this Amendment would eliminate all choices for parents of English language learners who seek options other than the immersion program described in the Amendment; and

WHEREAS, the Amendment would eliminate local control of education from duly elected school boards throughout the state of Colorado,

NOW, THEREFORE, BE IT RESOLVED that the Board of Education for School District No.1 for the City and County of Denver, expresses its strong opposition to the proposed Amendment because it ignores the individual learning needs of children; conflicts with Denver’s federal court-ordered program; severely limits parental choice; changes current constitutional provisions calling for local control of education; and will eliminate current and future dual language programs. Further, this Board of Education urges the voters in Denver and across the state of Colorado to reject this proposed amendment in November.

Board Quizzes Ron Unz And “English Plus,” Draws Crowd

More than 100 people packed the first floor Board Room and an overflow space in the lobby to watch the Board of Education this week as they asked questions of Ron Unz, one of the authors of Amendment 31, and organizers behind “English Plus,” the group opposing the ballot initiative.

The Board hosted the special meeting on Wednesday, Sept. 4 to learn more about the proposed Amendment before reaching a decision on its merits the following day.

Unz, joined by former Board member Rita Montero, was asked if he could describe a specific situation in which a student would be eligible for a waiver under the Amendment’s third potential exception, which allows for waivers based on “individual physical or psychological needs.”

Unz encouraged school officials to “examine the dossier” of each “particular child” and said waiver rates of 1 percent to 2 percent of the total English language learning population might be acceptable.

Unz said “different school districts…can come to different conclusions” about students who might be eligible for a waiver.

English Plus spokesman Jorge Garcia said the entire amendment is “quite ambiguous” and “under no circumstances would a sane person grant a waiver.”

And English Plus’s John Britz said approval of the amendment would amount to a “full employment act” for the legal profession with all the lawsuits that would be filed in the attempt to clarify the Amendment’s meaning.

Independent Counsel Urges “Significant Caution” On 31

Attorney Richard A. Westfall of the firm Hale Hackstaff Tymkovich was asked by the Board of Education to examine a few key areas of the proposed Amendment 31 and provide his legal counsel.

Following were his recommendations at the conclusion of the seven-page opinion:

“Based upon our analysis, above, if we were asked by a principal or superintendent to advise him or her concerning a request for a special needs waiver, we would counsel that significant caution is in order. There are at least three reasons for such caution. First, the standards for establishing a special needs waiver are not defined. Therefore, there will be considerable uncertainty as to whether the factual basis for granting a waiver is established in any given factual situation.

“Second, the standard for determining liability is not established...“

Third, because the Amendment states that a school may refuse to approve a waiver application ‘at its sole discretion, without any need to indicate cause,’ there is a much greater risk in granting a waiver application than in denying it.”

Board Notes...

In other action this week, the Board of Education:

Approved a resolution that allows the Denver School of Science and Technology, a charter school approved last year, to locate within the Stapleton Redevelopment area. The opening date of the school will be delayed to Fall, 2004.
Approved changes to the timeline for approving applications from charter schools that plan to open in the 2003-2004 and 2004-2005 school years. Applications are due October 1 for schools that want to open next year; an August 20 deadline is set for charter schools that want to open in the 2004-2005 school year. The application and approval timeline next year will be concluded prior to Board of Education elections.
Approved two waivers from the DCTA agreement for Bromwell Elementary School. The first waives the requirement that the CDM meet monthly. That waiver will expire December 31, 2002. The second waiver allows the Bromwell CDM to make decisions by majority rule beginning in January.

Denver Public School
Board of Education

Elaine Gantz Berman, President
Lucia Guzman, Vice President
Sue Edwards, Secretary
Kevin Patterson, Treasurer
Michelle Moss, Board Member
James Mejia, Board Member at Large
Les Woodward, Board Member at Large

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