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Plaintiffs Score Major Victory in No Child Left Behind English Learner Lawsuit Against State of California

Ohanian Comment:We can smile when a judge beats up on the State, but one must question just how much of "a major victory" this is. That's the plantiffs' characterization, but this summary reads like something out of Bleak House: the ruling lets plaintiffs argue in court some more.

The courts are not going to save children--any more than politicians are. What's needed is for educators to finally stand up and announce that they're mad as hell and aren't going to cooperate in an abusive system any more.

To: State Desk, Education Reporter

Contact: Kathy H. Kim of California Association for Bilingual Education, 626-814-4441 ext. 105, kathy@bilingualeducation.org

SAN FRANCISCO, Aug. 5 /U.S. Newswire/ -- Today, United States District Court Judge William Alsup granted plaintiffs' motion to remand the No Child Left Behind English Learner assessment litigation back to State Superior Court in San Francisco. Plaintiffs, including a broad coalition of school districts and nonprofit organizations from throughout the State, filed their action in state court on June 1, 2005. Shortly thereafter, the State Defendants removed the action to federal court.

The lawsuit alleges that California has failed to perform a mandatory duty under No Child Left Behind to test English Learners in a valid and reliable manner and has failed to provide the accommodations required.

The court initially set the hearing on plaintiffs' Remand Motion for Aug. 18, 2005 but the federal judge ruled immediately without a hearing after reviewing briefing papers submitted by the parties. The Order is not appealable and does the following:

1. Immediately sends the case back to the State Superior Court in San Francisco;

2. Rejects the State Defendants' argument that there was a substantial dispute about what No Child Left Behind means; and

3. Leaves it to a state court to decide what kind of relief plaintiffs may or may not be entitled to under state law.

The judge concluded in his order: "It would seem that defendants have manufactured an issue out of thin air in a vain effort to bootstrap their own issues into federal court."

"Federal law does not preclude any of the school districts' claims," said Marc Coleman, one of the attorneys for plaintiffs. Explaining the court order, Coleman commented: "The ruling leaves plaintiffs free to pursue their lawsuit in State Court on all counts."

While removal to federal court allowed the State Defendants to delay the proceedings for a month, plaintiffs are moving as rapidly as possible to make up for lost time, serving state court discovery requests today. At the same time, school districts from throughout California are continuing to pursue legislative relief through Senate Bill 385, a bill authored by State Senator Denise Ducheny to settle the lawsuit, which will be heard by the Assembly Appropriations Committee on Aug. 17.


Mary Hernandez, Bonifacio Garcia & Yuri Calderon, Burke Williams & Sorensen, LLP, 701 "B" Street, Suite 1790, San Diego, Calif. 92101, 619-615-6672

Dan Stormer and Virginia Keeny, Hadsell & Stormer, Inc., 128 N. Fair Oaks Ave., Suite 204, Pasadena, Calif. 91103-3645, 626- 585-9600

Marc Coleman, Law Offices of Marc Coleman, 211 E. Ocean Blvd., Suite 420, Long Beach, Calif. 90802, 562-432-8188

Kathy H. Kim, Communications Director, California Association for Bilingual Education (CABE), 626-814-4441 ext. 105, kathy@bilingualeducation.org


— California Association for Bilingual Education
U. S. Newswire


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