Background Information

Federal Policy and Bilingual Education

There are no federal laws that mandate bilingual education…

    Instead, there is a complex mesh of statutes and case law that defines the
    educational entitlements of limited English proficient students and affects the
    ways programs are funded for them. The first case law that speaks to the
    educational rights of the LEP students is the U.S. Supreme Court decision in:

 

Brown Vs. The Board of Education of Topeka in 1954 .



The Brown decision established the principle that separate facilities that were the product of intentional segregation were inherently unequal, reversing a decision by the Court fifty-eight years earlier that separate but equal facilities, or segregation, constituted equality (Plessy Vs. Ferguson, 1896).

The Brown decision was a landmark in U.S. history and had a significant impact on all forms of segregation.  For example, it was used to break down segregation on buses, trains, restaurants, and (eventually) housing.  But the immediate concern of Brown was schooling, and to this day schooling remains an arena in which the impact of Brown is continually felt (Lessow-Hurley, 1990, p. 112).

… In addition, federal court decisions, focused primarily on civil rights for non-English speakers, support an entitlement to services that offer equal educational opportunity to LEP students.

    Title VI of the Civil Rights Act (1964), which contained provisions strengthening
    the federal government’s ability to enforce desegregation and integration, plays a
    key role in the establishment of the rights of language minority children.

    Overall, the climate of the times in the late 1950s and early 1960s favored the
    establishment of dual language programs.  The influx of Cuban refugees and the
    establishment of bilingual programs for Spanish-speaking children in Florida
    catalyzed the demand for programs for other non-English-speaking children.  The
    success of the program in Florida, combined with increased ethnic self-awareness
    among minority groups and the philosophical impetus of the civil rights
    movement, led to legislation and litigation that established the educational rights
    of language minority children (Lessow-Hurley, 1990, p. 112).


Laws that specifically impacted the education of LEP Students:


Title VII: The Bilingual Education Act


Signed into law in 1968, Title VII of the Elementary and Secondary Education Act (ESEA), known as the Bilingual Education Act, provides funds for direct services to students, teacher training, and support services such as technical assistance and dissemination of information.  Since 1968 there have been reauthorizations of the Act with amendments in 1974, 1978, 1984, and 1988.  The next reauthorization is scheduled for 1993.  Title VII funds have increased with each reauthorization and current funding is approximately $186 million, however, funding fails to keep pace with the growing need.  Only 10 percent of programs aimed at LEP students are currently funded by Title VII.  The remaining 90 percent are funded by local and state education agencies (Forum, January 1991, p. 2).

Title VII funds are discretionary, that is, they are not automatically available to every student who is assessed as LEP.  Funds are awarded to state and local educational agencies, universities, and other educational institutions through a competitive proposal writing process.

Although Title VII does not mandate bilingual education, the Act effectively establishes policy at the national level through its acknowledgment of the needs of LEP students.  Recent modifications of the legislation accommodate the diversity of languages and needs in the schools and give local educational agencies discretion in implementing programs.  It is clear from Title VII, however, that native-language instruction is an acceptable and even desirable means of assisting LEP students while they learn English.  Attempts by legislators and bureaucrats to alter or erode that intention have repeatedly failed.

Lau v. Nichols (1974)

We cannot discuss the legal bases for bilingual education without mentioning the landmark United States Supreme Court decision in Lau v. Nichols.  It should be noted at the outset, however, that although Lau is important from a historical perspective, its practical significance has diminished.

In 1974 a group of Chinese students sued the San Francisco Unified School District.  In their suit the plaintiffs claimed that they were denied access to a meaningful education because they could not understand the education they received.  They claimed the school violated Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin.

The Court found for the plaintiffs, but did not specify a remedy for their complaint.  Instead, the Court noted that several solutions were possible, including native-language instruction and ESL classes.  As Piatt has noted (1990), Lau did not establish a constitutional right to bilingual education or even a requirement that districts provide primary-language content instruction.

Lau was, however, a catalyst for public policy.  In the wake of the Lau decision, for example, New York City entered into a consent decree in the Aspira case and significantly expanded services to LEP students in New York City.  The Department of Health, Education, and Welfare also promulgated regulations regarding the identification and assessment of LEP students and the delivery of services to them.  Although the regulations were never formally adopted, they were used as a de facto guide to Lau compliance by school districts and, consequently, had a far-reaching effect on programming for LEP students across the country.  In addition, after Lau, several states enacted legislation mandating services for LEP students.

The Equal Educational Opportunities Act (1974)

Since Lau, various court decisions have reshaped judicial interpretation of Title VI of the Civil Rights Act (Heubert, 1988; Crawford, 1989) and have mitigated the power of Lau as a protection for LEP student rights.  The strongest federal protection for the educational rights of LEP students is currently the Equal Educational Opportunities Act (EEOA).  Section 1703(f) of the Act states:

No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin by the failure by an educational agency to take appropriate steps to overcome language barriers that impede equal participation by its students in its instructional programs.

The focus of the EEOA was school busing, and there is no elaboration in the law on the rights of LEP students.  The meaning of Section 1703(f) and its impact on programming for LEP students has been derived, therefore, from judicial interpretation, which has focused on the phrase “appropriate action.”  What must school districts do to protect the rights afforded to LEP students by the EEOA?  The standard for complying with the legislation has evolved from several federal court cases: Castaneda v. Pickerd, 1981; Idaho Migrant Council v. Board of Education, 1981; Keyes vs. School District No. 1, 1983; and Gomez v. Illinois State Board of Education, 1987.  The basic requirement that derives from these cases is that LEP students must receive equal access to the curriculum.  “Appropriate action” as interpreted by federal courts includes:

·    A program based on sound educational theory.
·    The allocation of trained personal and the material resources necessary to
    implement the program.
·    An evaluation and feedback process.

Equal access as defined by the courts does not require bilingual programs.  Equal access does, however, prohibit districts from placing LEP students in classrooms where they cannot understand the language being spoken.  A careful reading of federal case law would suggest that districts should provide an affirmative program that:

·    Addresses the development of English language skills for LEP students, and
·    Assures that LEP students do not learn less because of their lack of knowledge of English.


Plyler vs. Doe,  1982 U.S. Supreme Court ruling

Free, equal and unhindered access to appropriate schooling is required for all immigrant students in compliance with a 1982 U.S. Supreme Court ruling (Plyler vs. Doe).  A number of prohibitions are itemized, such as not inquiring into students'/ parents' immigration status for any educational purposes unless specifically authorized by law, not compiling or maintaining lists of students with alien registration numbers and those without, not reporting students to the U.S. Immigration and Naturalization Services, and not requiring students to obtain a federal social security number.

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Adapted from:


Lessow-Hurley, J. (1991).  A commonsense guide to bilingual education. 
Alexandria, VA: Association for Supervision and Curriculum Development, pp. 52-58.