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