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Learning the Language: An Examination of the Use of Voter Initiatives to Make Language Education Policy

Learning the Language: An Examination of the Use of Voter Initiatives to Make Language Education Policy

In recent years, several states have used initiatives to enact statewide mandates requiring children to learn English by being taught only in English, without instruction in their native language. Using Massachusetts as a case study, this Note argues that this way of deciding the issue—a voter initiative that mandates a uniform method of instruction—is not an appropriate way to make language education policy. Language education is not the type of issue that should be decided via direct democracy because (1) direct democracy does not give adequate protection to minorities, (2) it exacerbates the tendency to make decisions about sensitive immigration issues on the basis of rhetoric, emotional reactions, and campaign politics, and (3) it gives uninformed drafters and voters the power to make complex policy decisions implementing particular educational methods about which they know very little. Further, mandating a uniform method of instruction is undesirable because the empirical literature on which methods of language education are most effective is so divided and confused that it is illogical to mandate the use of only one method. Local education administrators should instead be left free to experiment within the spectrum of language education programs. Also, by mandating a uniform method of instruction for all children in all communities, the initiative does not have the flexibility to recognize and accommodate the many legitimate interests at stake, including individual children and their families, minority groups, local communities, and the democratic interest of the general public. Finally, the Note examines a better way to decide this question, with a system that gives schools freedom to experiment and respond to the needs of particular communities, and that gives parents more input and choice.

Dynamic Rulemaking

Dynamic Rulemaking

In administrative law, it is generally assumed that once an agency promulgates a final rule, its work on that project—provided the rule is not litigated—has come to an end. In order to ensure that these static rules adjust to the times, therefore, both Congress and the White House have imposed a growing number of formal requirements on agencies to “look back” at their rules and revise or repeal ones that are ineffective.

Our empirical study of the rulemaking process in three agencies (N = 462 revised rules to 183 parent rules) reveals that—contrary to conventional wisdom—agencies face a variety of incentives to revise and update their rules outside of such formal requirements. Not the least of these is pressure from those groups that are affected by their regulations. There is in fact a vibrant world of informal rule revision that occurs voluntarily and through a variety of techniques. We label this phenomenon “dynamic rulemaking.” In this Article, we share our empirical findings, provide a conceptual map of this unexplored world of rule revisions, and offer some preliminary thoughts about the normative implications of dynamic rulemaking for regulatory reform.