PLAINTIFFS SCORE MAJOR VICTORY IN NO CHILD LEFT BEHIND ENGLISH LEARNER LAWSUIT AGAINST THE STATE OF CALIFORNIA

August 8, 2005, San Francisco - On Aug. 5, 2005, 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 August 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, Mr. 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 August 17th.


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