Question 2 (Massachusetts)

On November 5, 2002, Massachusetts voters passed English-only educational legislation, known as “Question 2,” with 70% voter approval. Question 2 modified the original 30-year-old Transitional Bilingual Education Act, which required school districts to implement transitional bilingual education (TBE) programs if there were 20 or more students enrolled from the same language group who were of limited-English-speaking ability. The passage of Question 2 practically eliminated TBE in the state. The new legislation established that all children in Massachusetts public schools are to be taught in English only. The law, however, did not affect students registered in two-way bilingual education programs, in which native English speakers and native speakers of another language learn in both languages; students who already knew English and were educated in foreign-language classes; or students in special education programs for the physically or mentally impaired.

According to Question 2, unless a waiver was granted, English language learners (ELLs) from kindergarten through 12th grade were to be educated through sheltered English immersion (SEI). In SEI classrooms, the curricula and presentation were designed for children learning the English language, and all books and instructional materials were required to be in English. Question 2 established that teachers in SEI classrooms could use a minimal amount of the children's native language(s) when necessary, although children had to learn to read and write solely in English. ELLs placed in SEI were to receive the service during a temporary transition period not normally intended to exceed 1 school year. However, the federal Civil Rights Act of 1964 required students to stay in the program until they acquired a good working knowledge of English that allowed them to participate meaningfully in a district's mainstream education program.

Parents or legal guardians of ELLs had the right to request a waiver from their children's participation in SEI programs; however, waivers were very restrictive for children younger than 10 years old. There were three circumstances in which parents could request a waiver: (1) for children who already knew English, as measured by the state English proficiency tests; (2) for children 10 years or older whose principal and educational staff believed that an alternate course of educational study would be better suited to the child's overall educational progress and rapid acquisition of basic English language skills; or (3) for children younger than 10 years old with special individual needs.

Question 2 gave parents and legal guardians the right to sue any school district employee, school committee member, or other elected official for the legal enforcement of the provisions of the law. To do so, parents were required to prove that the school district employee or official willfully and repeatedly refused [Page 710]to implement the terms of the law. If a person were found personally liable, he or she would then be responsible for attorney's fees, costs, and compensatory damages and would be forbidden to be indemnified for such monetary judgment by any public or private third party, such as the teachers union. In addition, these individuals would also be barred from election or reelection to any school committee and from employment in any public school district for a period of 5 years. Parents who were granted exception waivers retained full and permanent legal right to sue the individuals who granted such waivers if they subsequently discovered before the child reached the age of 18 that the application for waivers was induced by fraud or intentional misrepresentation and injured the education of their child. Nonetheless, before parents could sue teachers and other school officials, they must have exhausted the administrative process at the local and state level.

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