The opinion of the court was delivered by: MISHLER
Puerto Rican and other Hispanic children who have deficiencies in the English language bring this class action
for injunctive and declaratory relief claiming violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d Et seq.; § 204(f) of the Equal Educational Opportunity Act of 1974, 20 U.S.C. § 1703(f); and the Civil Rights Act of 1871, 42 U.S.C. § 1983. The suit was filed in response to the announced intention of the defendant Brentwood Union Free School District (Brentwood) to restructure its bilingual program known as Project Avelino and substitute therefore its Plan V.
In May and June, 1977, Brentwood terminated forty (40) elementary school teachers in accordance with the state court mandate in Morris v. Brentwood Union Free School District, supra, directing that dismissal be based on seniority. Fifteen (15) bilingual teachers having the least seniority and two (2) part-time bilingual teachers were dismissed; only seven (7) bilingual teachers were continued. Brentwood adopted Plan V as a method of providing bilingual education with the reduced teaching staff. Plan V was to become operative with the commencement of the school year in September, 1977. The court issued a temporary restraining order however, on August 22, 1977, directing a continuance of the bilingual program as it existed during school year 1976-1977.
The issues were tried to the court without a jury. The court finds as follows:
The Brentwood school district (elementary and high school) has a student enrollment of about 19,000. It has a Hispanic student population of about 3,700. The elementary system has twelve schools with a student enrollment of about 10,000 including approximately 2,000 Hispanic students. A bilingual educational program has been offered for the past five years which is supplemented by an ESOL (English For Speakers of Other languages) program.
The bilingual educational program started in the school year beginning in September, 1973, with the kindergarten class and first grade. In each successive year the program has expanded into the next grade, so that at the present time the bilingual program is offered from kindergarten to the fifth grade. It is expected that the program will continue to the sixth grade. Each year approximately 100 children enter the bilingual program as they enroll in kindergarten, while some students enroll in grades 1 and 2. Approximately 460 children currently participate in Project Avelino.
Under the program, which is offered to those whose dominant or exclusive language is Spanish, Hispanic students in kindergarten and the first grade are taught the subject matter of the curriculum in Spanish, while at the same time they are exposed to some English. As the students progress from year to year, the percentage use of English increases while the use of Spanish decreases. The increasing emphasis on English speaking in each successive year is expected to produce a level of language proficiency such that by the time the student reaches the sixth grade, all courses can be taught entirely in English.
A bilingual teacher and aide teach all substantive courses, and give individual attention to those students within the class who have a greater capacity to absorb English instruction. Beyond the substantive courses, Hispanic students also receive instruction in the history and culture of their countries of origin, I. e., Puerto Rican children are taught the history and culture of Puerto Rico, children of Colombian parents are taught the history and culture of Colombia, etc. Only art, music, physical education, and other specialty subjects are taught exclusively in English. Specialty instructors relieve the bilingual teachers during such periods.
The bilingual program segregates the Spanish speaking students from the rest of the student body. The children remain in the same classroom except for physical education and lunch. Yet, during lunch hour and physical education period, they tend to continue as the same identifiable Spanish speaking group. Moreover, students who have attained the level of proficiency in English which would permit learning in the English language are nevertheless retained in the program for the purpose of maintaining their Spanish cultural level. No student has been transferred from the bilingual program to the regular English curriculum in the history of Project Avelino.
Under Plan V, seven elementary schools in the district would offer an ESOL center run in substantially the same manner as under Project Avelino, and a Spanish basic skills room for remedial help and cultural instruction. Hispanic students in the bilingual program would spend the majority of the school day in the homeroom with English speaking students where substantive courses (I. e. reading, math, and social studies) would be taught in English. Non-English speaking students would also be required to attend the Spanish basic skills room for periods ranging from one-half hour to one and one-half hours depending upon the student's English comprehension level. Bilingual teachers there would offer remedial help by explaining in Spanish the subject matter covered in the monolingual homeroom. Cross-cultural studies and basic language arts (I. e. Spanish language, literature and comprehension) would also be taught in the basic skills room. From the third grade up students would be instructed in the Puerto Rican cultural inheritance.
The basic skills room is described as a potpourri of various teaching methods including mechanical teaching devices such as tape recordings and audio-visual aids. Groupings of kindergarten, first and second grade, third and fourth grade, and fifth grade students, never exceeding twenty in number, would be scheduled to assemble there each period. While the majority of students would receive cross-cultural or language art instruction from bilingual teachers, the aide might devote her attention to three or four students who needed remedial help in the substantive courses covered in the English homeroom.
The school board estimates that under Plan V, each bilingual teacher and aide will teach nine half-hour periods. Each day, kindergarten students would be slotted for one half-hour in the morning or one half-hour in the afternoon; first and second graders for three half-hour periods; third and fourth graders for one half-hour period plus an extra time period; while fifth graders will have the option of attending the one half-hour period assigned to fourth graders or specially designated "extra help classes." No maximum limit is placed on the time that a student might attend the basic skills room; the only limitation imposed is the class size. But, a ...