history of the united states legislative policy and english language



history of the united states legislative policy and english language
Ellen Loos
Gustavo Gutiérrez González
Lina Cuartas
Mary-Leslie Miller
Rania Abdo
Stacey Bogart
Greensboro College
February 20, 2014
Preface ....................................................................................................................................................................................... iii
Part A: Introduction ............................................................................................................................................................ 1
Part A. History of U.S. Legislative Policy and Ells ................................................................................................ 2
LEGAL HISTORY OF BILINGUAL EDUCATION IN THE U.S. .......................................................................... 2
THE ENGLISH ONLY MOVEMENT ............................................................................................................................. 7
U.S. SCHOOLING LANGUAGES OTHER THAN ENGLISH: .............................................................................. 11
TITLE VII ELEMENTARY AND SECONDARY EDUCATION ACT ................................................................ 17
THE IMPROVING AMERICA’S ACT OF 1994 ...................................................................................................... 21
ELEMENTARY AND SECONDARY EDUCATION ACT ...................................................................................... 25
“NO CHILD LEFT BEHIND” ......................................................................................................................................... 25
AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 .................................................................... 29
RACE TO THE TOP ........................................................................................................................................................... 29
Part B: Introduction........................................................................................................................................................... 35
Part B. Legal Issues ............................................................................................................................................................ 36
14TH AMENDMENT ......................................................................................................................................................... 36
TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 ................................................................................................. 41
EQUAL EDUCATIONAL OPPORTUNITY ACT OF 1974 ................................................................................. 46
OCR Cases ........................................................................................................................................................................... 50
LAU versus NICHOLS SUPREME COURT DECISION 1974 ..................................................................... 50
1975 LAU REMEDIES ............................................................................................................................................... 56
PROPOSED 1980 LAU REGULATIONS (PLR) ............................................................................................... 60
Aspira versus Board of Education of the City of New York (1974) ................................................ 65
Federal Court Decisions Following Lau ............................................................................................................. 70
Cintron versus Brentwood 1978 ...................................................................................................................... 70
Rios versus Read........................................................................................................................................................ 73
Castañeda versus Pickard (1981) .................................................................................................................... 78
United States versus the State of Texas 1981 ............................................................................................ 83
SPECIAL EDUCATION FOR LM/LEP STUDENTS ......................................................................................... 87
Plyler versus Doe (1982) ...................................................................................................................................... 91
Conclusion............................................................................................................................................................................... 96
As educators, familiarity with state and federal laws concerning the educational
obligations of schools and districts towards minority language learners is essential in order to
ensure consistent legal implementation of instructional programs and services in the U.S. This
handbook is a tool that introduces the various legislation, guidelines, and decisions impacting the
education of minority language students over the last century. It is comprised of two sections,
each of which states the facts of each law involved and explores the impact of each on education
in general and on English language learners in particular. It also reveals some of the social and
political implications associated with legislation affecting education.
This handbook is the final product of a collaborative effort of students enrolled in the
TESOL Master’s program at Greensboro College. Each group member has conducted individual
research on relevant topics concerning education laws in the U.S. The outcome of the project
was then peer-edited and evaluated for accuracy of information and coherence. The intent of the
handbook is to provide other students and teachers with a concise and comprehensible
introduction to education law as it affects the educational policies of school districts and
particularly the education of English Language Learners. To ensure ease of accessibility, legal
concepts have been presented in laymen’s terms and key points have been highlighted through
careful analysis and explanation of main ideas.
The history of U.S. educational legislation is grounded in the changing conceptions about
the most effective way to provide high quality education for all students. In fact, the Supreme
Court has recognized the fundamental role education plays, not only in individual success, but in
maintaining a prosperous society (Berenyi, 2008, p. 643). Language of instruction became the
focal point of discussions over time, as more and more students came to the classroom from nonEnglish speaking home environments. According to the 2010 U.S. Census, English Language
Learner (ELL) enrollment has increased by 65% over the past ten years. The Census also
predicts that students who come from homes that speak a language other than English will make
up 40% of the entire school-age population by 2030 (Crouch, 2012).
The rapid increase in the number of immigrants necessitated numerous modifications to
U.S. educational policies. During the 19th and early 20th centuries, instruction was provided in
many of the languages represented by new immigrants and native Americans (Ovando & Combs,
2012, p. 59). Over time, however, English as the language of instruction became important as a
symbol of immigrant assimilation into American culture and as a social/cultural unifying factor.
Inevitably, language of instruction became, and continues to be, a political and social issue
eliciting a variety of perspectives as to what constitutes the best instructional and pedagogical
methods for ELL students.
The following section examines various educational legislation and efforts which have
impacted English Language Learners since the Civil Rights Movement. The documents also
reflect the changing political and social climate over the past centuries, as they came to express
the educational policies of the country.
As a nation of immigrants, bilingualism has always been one of the characteristics of the
United States. Constant waves of immigration have caused the U.S. government to adjust its
education policies in order to address the needs of different types of students. The journey of
bilingual education in the United States began in 1785 when European immigrants settled in
rural areas and used their native languages for instruction. Since then, local and federal
governments have enacted laws to address bilingualism.
The first state to pass a law regarding bilingual education was Ohio in 1839, when
instruction in German was officially sanctioned after German speaking parents petitioned the
state. Then, in 1847, Louisiana passed a law permitting French instruction in its schools. The
following year, New Mexico passed a law approving Spanish instruction in public elementary
schools. In 1961, a full bilingual Spanish/English program was implemented in Dade County,
Florida, to accommodate the great number of Cuban immigrants who arrived in Miami after the
Cuban revolution. This measure was revoked in 1980 when Dade county voters passed the antibilingual ordinance to prohibit the use of any language other than English for instruction.
Although this measure was repealed in 1993, the tough language of the decree exposed a
growing anti-immigrant sentiment. However, three years later, in 1983, a two-way bilingual
program was successfully implemented for Cuban refugee children in the U.S. (Time Rime,
At the federal level, measures regarding bilingual education began in 1864 when
Congress passed a law prohibiting Native-Americans from being taught in their own languages.
Then, in 1879, “Federal officials began separating Native American children from their families
and forced them to attend boarding schools off the reservation. Students were punished when
caught speaking their native language”. This law was voided in 1934 by the Bureau of Indian
Affairs (University of North Carolina Television, 2001).
By 1900, at least 600,000 elementary students received some part of their instruction in
German. This changed when the U.S. entered WWI in 1917 and many states enacted Englishonly instruction laws. Anti-German sentiment quickly turned to hostility toward all minority
tongues resulting in the abolition of bilingual education throughout the country by the mid1920s (Time Rime, n.d.).
One of the landmark pieces of legislation related to bilingual instruction took place in
1968 when Congress passed the Bilingual Education Act (BEA). This act gave federal funding
to schools in order to encourage the use of native language instruction alongside instruction in
English. According to Stewner (1988), “Title VII was the first federal recognition that Limited
English Speaking Ability (LESA) students have special educational needs and that in the interest
of equal educational opportunity, bilingual programs that address those needs should be federally
funded” (p. 1). The BEA was amended four times but the most important modification was
made in 1994 when the goal of bilingualism for English Language Learners (ELLs) was
During the first decade of the twenty-first century, other laws were enacted to either
support or restrict bilingualism in U.S. schools. In 2002, the English Language Acquisition Act,
or Title III, was passed as part of the No Child Left Behind Act (NCLB), stating that bilingual
education would be determined at the state level (United States Department of Education, n.d.).
This law also tightened many of the testing exemptions used by states to raise the accountability
for tracking and improving ELL student performance. Essentially, the Elementary and
Secondary Education Act (ESEA) required each state to develop an assessment system that
included ELLs and tracked their progress from year to year. The stated goal was to increase
tracking to determine if ELL students in each district were or were not making adequate yearly
progress. It was required that the test be taken in English (Education Commission of the States,
When the Bilingual Education Act was enacted in 1968, some states had English-only
laws. Those states were required to create innovative programs designed to help ELL’s acquire
content knowledge while developing English language skills. However, school districts often
failed to successfully implement such programs. The fear of violating desegregation laws by
separating ELL students into special classes was also a significant obstacle to successful
implementation. Another issue was related to funding. Since Title VII projects would be
federally funded for only five years, school districts would have to assume the costs after that
period (U.S. Department of Education, n.d.).
The amendments made to the BEA affected the way Limited English Proficient (LEP)
students were instructed. Many modifications required having special programs for ELLs
regardless of the type of funding they received. The impact of this legislation was considerable
and affected not the curriculum, but also the school’s infrastructure and the staff. Many school
districts overwhelmed by the need to hire bilingual staff and to put in place the infrastructure
required to fully implement the transitional bilingual programs. The cost of providing staff and
infrastructure was another concern for the federal and state governments. Almost $300 million
was being spent annually to implement BEA regulations. In some cases this amount would have
been doubled had school districts fully complied with the Lau regulations (Stewner, 1988).
After much deliberation, some members of Congress argued that it was not appropriate to
require instruction in languages other than English, especially at a time of economic crisis.
Overall, attempts to implement successful bilingual education programs in the United
States have met with limited success.
Education Commission of the States. (2014). Bilingual/ESL. Retrieved from
Ovando, C., & Combs, M. (2012). Bilingual and ESL classrooms (5th ed.). New
York, NY: McGraw Hill.
Stewner, G. (1988). Bilingual Education Act: Twenty Years Later. Retrieved from
The United States Department of Education. (n.d.). Part A –English Language Acquisition,
Language Enhancement, and Academic Achievement Act. Retrieved from
The University of Edinburgh. (2014). Bilingualism Matters [Photograph]. Retrieved from
Time Rime. (n.d.). History of Bilingual /ESL Politics in Education. Retrieved from
UNCTV. (2001). Speaking of Learning: Bilingual Education. Retrieved from
Founded in 1983 by the U.S. English organization, the English Only (EO) movement was
established in an effort to make English the official language of the United States. Efforts to
apply this movement started with the nation’s increasing number of immigrants and the
“growing discontent with bilingual education” (Ovando & Combs, 2011, p. 49). According to
Senator S. I. Hayakawa, one of the founders of the U.S. English organization and a major
supporter of the EO movement, programs related to bilingual education interfere with
immigrants’ ability to acquire English. His statement, issued in 1982, also stated his view of the
detrimental impact bilingualism may have on the U.S. and the threat it may pose to the country’s
unity (U.S. English, Inc., 2014). The number of immigrants has continued to increase since 1982
so that there has also been a rapid increase in the number of non-English languages spoken in the
U.S., a total of 322, as revealed by the 2000 U.S. Census. Research by the U.S. English
foundation revealed that speakers of non-English languages are not spread evenly across U.S.
states and territories, “leaving each state, county, and metropolitan area with its own unique
linguistic composition” (U.S. English, Inc., 2012, para 2). Supporters of the EO movement
believe that if English were to be declared as the official national language, it would “ensure not
only mutual linguistic intelligibility, but cultural homogeneity as well” (Kramsch, 1998, p. 74).
Since its founding in the early 1980s, the EO movement has received strong attention
from the media. Funding and campaigns have helped the movement progress and “by 2010, 26
states had active Official English laws on their books” (Ovando & Combs, 2012, p. 52).
Although English is still not specified as the nation’s official language, some states, including
California, Arizona, and Massachusetts, were successful in their promotion of EO instruction.
For example, in California, an initiative supported by politician and millionaire Ron Unz
received great support for EO instruction, despite its attempt to devalue bilingual education
(Ovando & Combs, 2012; McKay & Bokhorst-Heng, 2008). Proponents of the EO movement
argue that the principles that guide their movement would help the United States to resolve
issues related to racism that are so common in certain divided nations where multilingualism is
prevalent. Moreover, advocates of the movement argue that having English as a common
language would yield multiple benefits to the nation and its people alike (Ovando & Combs,
2012). By declaring English as the official language, U.S. English seeks to enhance American
citizens’ educational, economic, and social status (Kramsch, 1998, p. 75).
Opponents of legislating English as the official language argue that making English the
official language would aggravate issues of racism and discrimination. In fact, Perez-Bustillo
(1992) indicated that U.S. English has sparked an attitude of hostility towards Asian and Latino
groups (as cited in Ovando & Combs, 2012, p. 52). Fishman (1992) further stated that the EO
movement represents a simplified solution for larger and more serious problems (as cited in
Ovando & Combs, 2012, p. 52). Another point critics emphasize concerns the negative attitude
the movement has created towards other languages. As Crystal (1997) pointed out, the emphasis
on EO instruction as advocated by the EO movement “will cultivate an elite monolingual
linguistic class, more dismissive in their attitudes toward other languages” (as cited in McKay &
Bokhorst, 2008, p. 23). Crystal (1997) substantiated this point by indicating that the number of
students studying foreign languages in U.S. colleges and institutes has declined since the 1960s.
A similar dismissive attitude towards second language acquisition can be observed by both
monolingual English speakers as well as by many non-native English speakers residing in the
U.S. English-only programs have also had a negative impact on Native Americans as the loss of
Native American indigenous languages have resulted in a loss of cultural identity for many of
their people (Romeo-Little & McCarty, 2006).
Thus, the EO movement has had a significant impact on education and minority groups.
While Ovando and Combs (2012) point that legislations supporting the EO movement have had
minor legal effects on the rights of non-native speakers, they state that campaigns supporting the
movement have had “damaging political effects on bilingual education,” particularly in the
1980s (p. 54). In fact, bilingual education was viewed by William J. Bennett (1985), Secretary
of Education, to be “a failed path, a bankrupt course, and a waste of 1.7 billion” (as cited in
Ovando & Combs, 2012, p. 54). Moreover, his statements revealed that bilingual education
programs only attempt to discourage the proper acquisition of English. Arguments such as these
have resulted in major decisions disfavoring bilingual education. One indicator of this is that
committees opposing non-English instruction have managed to shift a percentage of bilingual
education grants to EO programs. Ovando and Combs (2012) point out that other EO advocates
have encouraged the publication of research that supports EO education, generating a negative
image of bilingualism in the process (Ovando & Combs, 2012).
Policies supporting EO instruction have also had a negative impact on the perception
educators and other hold about English language learners (ELLs). In particular, the EO
movement has helped create doubts about English learners’ academic and cognitive abilities
(Ovando & Combs, 2012). The push to promote English Only classrooms can promote a
negative attitude toward ELLs. ELL’s input in the classroom is often disregarded and the
presence of ELLs in the classroom is sometimes regarded by teachers as being a liability rather
than a cultural resource (Ovando & Combs, 2012). Thus, the English Only movement has had a
lasting impact on the perception educators have of bilingualism and of students who are learning
English. Whether or not EO programs have had a positive impact on education, locally and
globally, remains a topic of debate.
Kramsch, C. (1998). Language and culture. Oxford: Oxford University Press.
McKay, L. & Bokhorst-Heng, W. (2008). International English in its sociolinguistic contexts.
New York: Routledge.
Ovando, C. J., & Combs, M. C. (2012). Bilingual and ESL classrooms: Teaching in
multicultural contexts (5th edition). New York, NY: McGraw-Hill.
Romero Little, M. & McCarty, T. (2006). Language planning challenge and prospects in Native
American communities and schools. Retrieved from Language Policy Research Group:
Division of Education and Leadership Policy Studies, Arizona State University.
U.S. English, Inc. (2014). Making English the official language. Retrieved from http://www.usenglish.org/view/24
The term “bilingual” education is “neither a single uniform program nor a consistent
‘methodology’… Rather, it is an approach that encompasses a variety of program models”
(Ovando & Combs, 2012, p. 9). For some, the term “dual language” (DL) has replaced it—
which, likewise, has a wide range of meanings. Depending on the source, the term DL
sometimes is used to include developmental, also termed maintenance or late-exit, bilingual;
heritage language—for indigenous groups; foreign language, also called one-way or full,
immersion; and two-way immersion (TWI) education. This article will employ “DL” to identify
TWI and will only address the more traditional Developmental Bilingual (DB) versus a TWI
language education.
A 2008 U.S. census from the National Center for Education Statistics revealed that 20%
of grade school students between the ages of five and seventeen speak a language other than
English at home (as cited in Hsu, 2013, p. 3). Thus, many minority language students have
needed educational support for gaining the necessary complex skills in English. Thomas and
Collier in their 2003 study found that English-only or merely remedial bilingual courses have not
served the English language learning (ELL) student well (as cited in Espinosa, 2013, p. 9). In
their longitudinal DL studies, they identified a pattern of ELL students losing their ability to
communicate in their first language, preferring to speak only English rather than their native
language. As a result of this pattern, some students developed communication problems with
their extended families. The study noted that students immersed in English-only or remedial
bilingual courses also had difficulties mastering English academic language skills (p. 9).
In the United States, DB education was a common program model during the 1970s and
1980s for kindergarten through fifth, sometimes sixth, grades, but did not continue in middle or
high school (Ovando & Combs, 2012, p. 42). Program purposes and goals varied. However,
Baker noted that frequently DB program goals were explicitly designed for melding ELL
(mainly immigrant and indigenous American) students into the common culture of the United
States. (as cited in Ovando & Combs, 2012, p. 9).
A primary goal of two-way immersion programs is to gain mastery in speaking two
languages. However, this is not the only goal. As Lindholm-Leary pointed out, the goals of a
TWI education, both for ELL and native English-speaking (NES) students, are to achieve “high
levels of bilingualism and bi-literacy, academic achievement, and cross-cultural competence” (as
cited in as cited in Hsu, 2013, p. 2).
There are two common program models for dual language instruction in the United
States. Canada’s TWI model, created in the 1960s for French and English languages, is the
prototype used for some of the TWI programs in the United States; it is called “the 90-10
model”. Since TWI education is for both ELL and NES students, both learn from one another.
Ovando and Combs (2012) explain that in DL, both ELL and NES groups stay together
throughout the day and serve as peer tutors for each other” (p. 95). The other widely used TWI
model in the United States is the “50-50 model”, “… in which half of the instructional time is in
English and half of the instructional time is in the minority language for grades kindergarten
through 12. In both the 90-10 and the 50-50 models, the appropriate percentage of instruction in
each language is carefully planned. Lessons are never repeated or translated in the second
language, but concepts taught in one language are reinforced across the two languages in a
spiraling curriculum” (Ovando & Combs, 2012, p.43).
Developmental Bilingual programs are not designed to teach NES students speaking or
writing proficiency in a second language. Rather, DB is designed to move ELL students from
their native language to proficiency in English. Students are progressively transitioned from
total immersion in their native language to total immersion in English. The transition to English
only instruction typically begins in kindergarten and is usually ended by fifth or sixth grade.
Thus, by the time students are faced with the need to master more complex academic material
during middle and high school, DB services are generally no longer available.
When ELL students not in a TWI program need high school cognitive-level skills, Collier
and Thomas reported, “former ELL [students] begin to make less than one year’s progress each”
(2004, p. 2). The achievement gap, thus, unfortunately widens for them each year they struggle
through high school. But the DL program, Thomas and Collier described, “…offers full rather
than partial achievement gap closure at annual costs comparable with existing programs” (2003,
pp. 3–4).
TWI has additional benefits for students, parents, and the community. The program
model is designed to engage parents to be actively involved with their child’s education; hence,
partnerships. It also fosters community inclusiveness and shared community growth among the
parents (Collier & Thomas, 2004, p. 12; Thomas & Collier, 2003, p. 2).
Discussing dual language programs at the 2013 North Carolina Educational Conference
in Greensboro, NC, Fasciano noted that in order to transform student performance to prepare
students for the future, school programs need to work on “building proficiency to be globally
competitive for work” (p. 19). Baker stated that a DL education also “leads to enhanced
creativity and analytical thinking”, and “accelerated … instruction” (as cited in Thomas &
Collier, 2003, p. 1).
What do the NES and ELL students think? Lindholm, Leary, and Borsato reported that
NES and ELL students were “very satisfied” with TWI and expressed greater interest in
attending college (as cited in Cobb et al, 2006, p. 32). As Collier and Thomas (2004) pointed
out, “Clearly dual language [TWI] education is a school reform whose time has come. It is a
school model that even English-only advocates endorse, because it is an all-inclusive model for
all students, and all student groups benefit from participating” (p. 18).
Cobb, B., Vega, D., & Kronauge, C. (2006). Effects of an elementary dual language immersion
school program on junior high school achievement. Middle Grades Research Journal,
1(1), 27-47. Retrieved from
Collier, V. P. & Thomas, W. P. (2004). The astounding effectiveness of dual language
education for all. NABE Journal of Research and Practice, 2(1), 1-20. Retrieved from
Espinosa, L. (2013, August 13). Challenging common myths about dual language learners, an
update to the seminal 2008 report. New York, NY: Foundation for Child Development,
PreK-3rd. Retrieved from http://fcd-us.org/resources/prek-3rd-challenging-commonmyths-about-dual-language-learners-update-seminal-2008-report
Fasciano, H. (2013, March). North Carolina dual language: Ongoing research findings. Paper
presented at the Collaborative Conference for Student Achievement, Engaging North
Carolina in Transforming 21st Century Teaching and Learning, Greensboro, NC.
Abstract retrieved from
Hsu, C. (2013). Policy brief: Define accountability for dual language education. Retrieved from
Ovando, C. & Combs, M. (2012). Bilingual and ESL classrooms: Teaching in multicultural
contexts (5th ed.). New York, NY: McGraw-Hill.
Thomas, W. P. & Collier, V. P. (2003, October). The multiple benefits of dual language.
Educational Leadership: Teaching All Students. 61(2), 61-64. Retrieved from
Title VII of the Elementary and Secondary Education Act, also known as the Bilingual
Education Act, was passed by congress in 1968 in an effort to support bilingual education in the
U.S. The Act came as a by-product of the Civil Rights Movement and its emphasis on equality
(National Clearinghouse of Bilingual Education [NCBE], 1988). The act and its recognition of
the needs of students of limited English proficiency catered to the educational needs of minority
groups, particularly those from impoverished backgrounds (University of Michigan, n.d.).
Although the 1968 act offered services to students from low-income families, modification to the
act in 1974 ensured that all students of limited English proficiency were eligible for bilingual
education programs. Moreover, while students of only limited listening and speaking skills were
eligible for services in 1974, modifications to the act in 1978 ensured that students lacking in the
other two skills, reading and writing, were also accepted in the programs and received special
services (Ovando and Combs, 2012, p. 65).
Besides attempting to support LEP students in their acquisition of the English language,
the 1968 Bilingual Education Act also addressed the need to help children maintain their native
language as well as celebrate their cultural heritage (NCBE, 1988, p. 2). An amendment to the
act in 1978 permitted the participation of native English-speaking students in bilingual programs
(NCBE, 1988, p. 3). Not only did this change provide native English-speaking students with the
opportunity to acquire a foreign language, but it also ensured that non-native speakers
maintained their mother-tongue language. Most importantly, however, was the inclusion of
language minority and language majority students in the same program in an effort to avoid
issues related to segregation and discrimination (Ovando & Combs, 2012, p. 66).
Funding for bilingual programs continued to increase in the 1970s and, in 1984, more
grant programs were offered. Some of these programs provided services for parents and
preschoolers as well as for gifted and special education students. One of the new programs,
developmental bilingual education, was introduced “to support native-language maintenance”
(Ovando & Combs, 2012, p. 66). The introduction of this program was considered to be
particularly important in order to eliminate the negative attitude towards bilingual education
widespread in many states during the 1960s. Although this program category did not receive the
funds that the other program categories received, it did help to create a positive image of the
aspirations of bilingual education programs and helped to bring about the view of bilingual
education “as an additive, enrichment school program” (Ovando & Combs, 2012, p. 66). Out of
all of the Title VII programs, short-term transitional bilingual education was the category that
received the most funds. In 1994, the Title VII focus changed from program specific funding to
a more fully integrated approach that encouraging local initiatives and the inclusion of the entire
school system (Ovando & Combs, 2012, p. 67). These changes were accompanied by increased
resources and funding to state and local schools.
The 1990s witnessed drastic changes in favor of bilingual education. Federal
appropriations increased for both Title VII and Title I bilingual education programs (New York
State Education Department, n.d.). New Title VII funding proposed in 1994 highlighted a new
set of principles supporting minority students and touting the benefits of bilingualism on
cognitive and social development, as well being beneficial for the U.S. economy. The new act
also emphasized the need to provide minority students with “an equal opportunity to learn the
challenging content and high-level skills that school reform efforts advocate for all students”
(Ovando & Combs, 2012, p. 68). Title VII thus resulted in significant funding as well as needed
attention to the instructional needs of language minority students while, at the same time,
ensuring the integrity of language minority students’ educational content and environment. Title
VII was eliminated in 2002 with the enactment of No Child Left Behind Act.
Franciscan Spiritual Center. (2013). Spotlight: Sacred Circle [Photograph]. Retrieved from
New York State Education Department. (n.d.). Federal education policy and the States, 19452009. The Reagan Years: Hawkins-Stafford Amendments. NYSED.gov. Retrieved from
Ovando, C. J., & Combs, M. C. (2012). Bilingual and ESL classrooms: Teaching in
multicultural contexts (5th edition). New York, NY: McGraw-Hill.
The National Clearinghouse for Bilingual Education. (1988). The Bilingual Education Act:
Twenty years later. ERIC Clearinghouse on Urban Education: Gloria StewnerManzanares. Retrieved from http://www.ncela.us/files/rcd/BE021037/Fall88_6.pdf
University of Michigan. (n.d.) Legislation related to bilingual education. Retrieved from
The Improving America’s School Act of 1994 (IASA), Pub.L.103-382, was signed into
law by President Clinton on October 20, 1994 as the eighth and perhaps most important
reauthorization of the Elementary and Secondary Education Act of 1965 (ESEA) (Summary of
Improving America’s Schools, 1994, p. 1). Originally part of President Johnson’s “War on
Poverty,” the ESEA was intended to improve schools and education for all students via federal
support (Improving America’s Schools Act of 1993, p.1). IASA 1994 represented the most
comprehensive revision of ESEA since 1965 and consequently, effectively replaced it.
IASA 1994 was based upon five principles, which derived from the recognition of
problems in five key areas of earlier versions of EASA. These principles, which became
enshrined in IASA Titles, were: all students were to be held to equally high standards;
professional development was crucial for all school/administrative staff; flexibility in federal
funding requirements was necessary with regard to local initiatives; close school, family, and
community collaboration (school/parent compacts) was fundamental; federal assistance was to
be targeted and based on verifiable need (The Improving America’s Schools Act of 1994, p.4).
In a significant departure from past reauthorizations of ESEA, IASA 1994 strove to consolidate
and streamline funding across educational programs; it also strongly encouraged movement
away from program-specific improvements to school and district-wide integrated programs /
improvements (Improving America’s Schools Act, 1994, p.5). The purpose of this consolidation
and integration was to improve educational opportunities for all students and to ensure the
highest teaching standards across districts and states.
IASA addressed the five principles listed above and its general purpose to consolidate
and integrate, primarily in Titles I, II, and VII. Title I, Helping Disadvantaged Children Meet
High Standards, addressed topics revolving around funding for educational improvement,
specifically targeting what had been an “underserved” population. It focused on foundational
improvements to “basic and compensatory” education. States and school districts were given a
great deal of flexibility in decisions regarding allocations, but a clear emphasis was on close
involvement of families and local communities with schools. In keeping with the overall thrust
of ISAS to proactively support “disadvantaged” students and their families, programs involving
community agencies (e.g. Social Services or Public Health, drug/ alcohol programs), which
provide additional types of assistance, could also be funded under Title I (Summary of the
Improving America’s Schools Act, 1994, p. 1-4 ; H.R.6 (103rd), n.d.).
Title II, The Dwight D. Eisenhower Professional Development Program, was a new
program which provided funding for a wide variety of professional development programs, in
addition to the funds available through Title I and Title VII. This title gave broader authority to
state and federal educational agencies to support higher standards across all core subjects.
However, Title II was still related to Title I funding (The Improving America’s Schools Act of
1994, 1995, p. 6).
Title VII, Bilingual-Education, Language-Enhancement, and Language-Acquisition
Programs (“The Bilingual Education Act”), established The National Clearinghouse for
Bilingual Education, and provided grants for bilingual education under several different
categories of programs (Summary of Summary of The Improving America’s Schools Act, 1994,
p. 6). This reauthorization in 1994 was the strongest of the Title VII reauthorizations in
promoting bilingualism for English Language Learners (ELL) rather than just supporting
“transitional” English classes. It was recognized here that ELL students were not truly being
offered equitable educational opportunities if those opportunities were provided in a language
they did not understand. The purpose of Title VII was thus to support ELL students in non-
segregated classes in order to learn English and core subject matter through the use of native
language instruction.
The Improving America’s Schools Act of 1994 presented a comprehensive and integrated
federal legislative plan to address issues across all aspects the US educational system. The Titles
discussed above exemplify its purpose and tone: systemic educational reform aimed at
inclusiveness, higher standards for all students, comprehensive funding, and “whole-school”
reform. There has of course been some controversy about IASA 1994. Specifically, concern has
focused on Title I funding as it is tied to low-income families and students, and on Title VII as it
conceivably could promote segregation. In the first instance, it has been pointed out that basing
funding on percentage of low-income students discourages student achievement as a funding
point. In the second instance, it has been mentioned that Title VII might inadvertently be
effectively segregating ELL students from the rest of the student body. However, any discussion
of these points and others became moot with the passage of the No Child Left Behind Act of
2002, when Title VII was replaced by a new Title III.
Carmichael, P.H. (1997). Who receives federal Title 1 assistance? Examination of program
funding by school poverty rate in New York state. American Educational Research
Association. Educational Evaluation and Policy Analysis, 19(4), 354-359. Retrieved
from http://www.jstor.org/stable/1164449
H.R.6 (103rd): Improving America’s Schools Act of 1994. (1994). Retrieved from
Improving America’s Schools Act of 1993, The Reauthorization of the Elementary & Secondary
Education Act. (1993). Retrieved from http://education.eserver.org/improving-americasschools.txt
Summary of the improving America’s schools act. (November 1994). Education Week.
Retrieved from
The Improving America’s Schools Act of 1994. Reauthorization of the Elementary and
Secondary Education Act. (September 1995)[Document resume, brochure format].
Retrieved from http://files.eric.ed.gov/fulltext/ED399649.pdf
U.S. Metric Association.(1994). Improving America’s schools act of 1994. Retrieved from
The No Child Left Behind Act (NCLB) was an educational reform signed into law by
President George W. Bush on January 8, 2002. It was a reauthorization of the Elementary and
Secondary Education Act (ESEA) and funded federal programs aimed at improving education in
U.S. public schools by increasing accountability standards. The overall intent of the law was to
provide all children in the United States with a significant and equal opportunity to achieve high
academic standards. The U.S. Department of Education established basic objectives in NCLB
which included: the acquisition of highly qualified teachers, student achievement of higher
academic standards, student competency in reading and math, Limited English Proficiency
(LEP) student competency in English, and higher rates of high school graduation.
No Child Left Behind Act specified a set of requirements, resources, and regulations by
which to measure performance in public schools and districts’ progress in achieving these
objectives. The requirements included: annual assessments in reading and mathematics in grades
3-8 and one assessment in high school; an assessment in science at least once in elementary,
middle, and high school; a full analysis of academic progress issued throughout the year; student
attainment of Adequate Yearly Progress (AYP); and implementation of educational programs
and strategies based on scientific research (Ovando & Combs, 2012, p. 321).
No Child Left Behind Act has been a source of extensive debate and controversy in the
field of education. It has significantly affected the U.S. educational system and U.S. public
schools. Under this legislation, education has focused on accountability and has resulted in more
tests for students to assess their progress. Increased assessment has meant more time taken away
from instruction. Teachers often feel they unable to meet the needs of their students as they are
“teaching to the test” Moreover, due to the emphasis on test results, teachers can be at risk of
losing their jobs. Some teachers state that the focus on testing has reduced their ability to be
creative in the classroom and thus, overall creating a less effective teaching environment for
students. Centolanza in his journal article stated that he felt that subjects such as Physical
Education, Arts, and Social Studies were at risk of being marginalized (Centolanza, 2004, p. 10 )
Opponents of the No Child Left Behind Act have voiced the opinion that because
teachers had to provide remedial tutoring classes for children who were not scoring well, they
had less time to effectively plan and teach curriculum. It has also been pointed out that all
students are evaluated under the same standardized test without taking into consideration their
native language, socioeconomic status, and competency level.
ELL students have been heavily impacted by this legislation. Since the law was put into
effect, state tests consistently note that ELLs have low performance levels and, over time, slow
rates of improvement, and these have progressively increased the achievement gap between
ELLs and other students. Another problem that has resulted from this legislation is that schools
are ‘punished’ when they do not meet the testing standards. In cases where schools do not
achieve the expected overall goals established by the legislation, these schools receive reduced
federal and state funding.
Proponents of the legislation have a different view. According to the U.S. Department of
Education (2007), academic progress and test scores have increased since NCLB began in 2002,
especially the test scores of minority learners. The achievement gap between this student group
and other majority groups has been reduced. Other positive outcomes of this legislation include
the fact that parents have been provided with annual reports of student progress as well as
explanations of their achievement levels.
In summary, the NCLB Act remains a controversial topic in the field of education.
Despite the Act’s stated goals of providing all students with an equal opportunity for high quality
education regardless of socioeconomic status or race, since its implementation, its outcomes are
hotly debated. In so far as improving education for ELL students is concerned, the act has more
detractors than supporters. As stated by Crawford (as cited in McKay & Bokhors-Heng, 2008,
p.11), the implementation of NCLB has negatively impacted bilingual education and ELLs in
U.S. public schools. He further stated, “The strong emphasis on test results has, in effect,
narrowed the curriculum, and has put pressure on schools to abandon best practices and
programs that have proven successful for ELLs” (as cited in McKay & Bokhors-Heng, 2008, p.
Atlanta Journal Constitution. (2012, January 4). A Decade of No Child. Did The Law Do Any
Good or Did It Inspire Cheating? [Photograph]. Retrieved from http://blogs.ajc.com/getschooled-blog/2012/01/04/sunday-marks-a-decade-of-no-child-did-the-law-do-anygood/?cxntfid=blogs_get_schooled_blog
Centolanza, L. R. (2004, Fall). New Jersey teachers believe testing compromises sound practices.
ERS Spectrum, 22(4), 10-14. Abstract retrieved from http://eric.ed.gov/?id=EJ795736
McKay, L. & Bokhorst-Heng, W. (2008). International English in its sociolinguistic contexts.
New York: Routledge.
Ovando, C., & Combs, M. (2012). Bilingual and ESL classrooms: Teaching in multicultural
contexts (5th ed.). New York, NY: McGraw-Hill.
US Department of Education. (2007). No Child Left Behind’s 5th Anniversary. Keeping promises
and achieving results. Retrieved from
President Obama signed the American Recovery and Reinvestment Act (ARRA), also
commonly known as the Stimulus Bill into effect on February 13, 2009. The ARRA was created
at time when the U.S. economy was at its lowest point since the Great Depression of the 1930s.
Its purpose was to bolster the economy by investing in the public sector and to give citizens
economic relief in the form of tax credits and unemployment insurance. The ARRA allocated
$787 billion to be injected into the economy. The money was allocated into three main
categories: tax benefits, entitlements, and one consisting of contracts, grants, and loans, which
included $130 billion to be distributed by the U.S. Department of Education. Of this $130
billion, $4.35 billion was specifically designated for Race to the Top (RttT) funding. RttT
money was earmarked for states to compete for funding to implement educational reforms as laid
out by the U.S. Department of Education (U.S. Department of Education, 2009, p.2).
The U.S. Department of Education set up competition in two phases. States which were
not ready to submit an application in the first phase, could submit one in the second phase; states
which did not win a grant in the first phase could compete again in the second phase (U.S.
Department of Education, 2009, p.2). The desired reforms were specified under four different
categories. The first was to adopt standards and assessments geared at preparing students for
college and employment in the global economy. The second was to build data systems to
measure student learning and to keep teachers and principals abreast of how to improve
instruction. The third was to focus on rewarding good teachers and terminating others. The last
category of reform was to drastically improve the 5000 schools considered to be failing (U.S.
Department of Education, 2009, p.2). To achieve this purpose, Arne Duncan (2009), U.S.
Secretary of Education, suggested four models for schools (para 50-57). In order for a state to be
eligible to receive an award, the Department of Education (2009) required the state to show that
all four previously mentioned reform areas had been addressed (p.4).
The logistics for award determinations were based on a complex point system which
prioritized items by assigning some items more points than others. One of the high priorities
listed in the U.S. Department of Education's (2009) Race to the Top Executive Summary was an
emphasis on Science, Technology, Engineering, and Mathematics (STEM) (2009, p.4). Another
high priority was for states to put in place a statewide data system to coordinate all facets of the
state educational system, including community partners such as Child Welfare and Juvenile
Justice (U.S. Department of Education, 2009, p.4). The expansion of charter schools was
another high priority. Charter schools were included as one of the four models suggested as a
remedy for failing schools (U.S. Department of Education, 2009, p.4). Incentives were also put
into place for states to coordinate educational standards with other states.
As stated in the U.S. Department of Education's (2009) Executive Summary, the principal
criterion that winning states needed to address was that they “have demonstrated success in
raising student achievement and have the best plans to accelerate their reforms in the future”
(p.2). Other federal grant money, aside from RttT, was available for schools and districts, so that
if a state was not granted RttT funding, it did not mean it would be left without funding
possibilities. The idea of RttT was that the winning states would be able to serve as models of
educational reform so that other states could follow suit (U.S. Department of Education, 2009,
RttT was refunded for a third phase in 2011, bringing the total number of winning states
to 22 (U.S. Department of Education, 2011, para 2). As of the third quarter of 2013, $816.3
billion ARRA funds had been paid out (U.S. Government, 2013, Overview of Funding).
In 2007, the National Governor’s Association and the Council of Chief School Officers
joined together to create educational standards across states in “the belief that a nationalized,
uniform system is the best method of education” (Home School Legal Defense Association
[HSLDA], 2013, p.1) These became the Common Core standards which address standards in
Math and English Language Arts. RttT was an enthusiastic supporter of this effort. The
standards were released in June 2010 and, within months, 28 states had promised to implement
them (HSLDA, 2013, p.1) To date, only five states have not adopted the Common Core
Standards (Common Core State Standards Initiative, 2013, In the States). In March 2014, four
million students will take the first standardized testing linked to Common Core Standards.
Despite the overwhelming response of states in favor of national standards, there has also
been much criticism, particularly by teachers and teacher interest groups. The main criticism is
that there is too much emphasis on testing, and therefore too much emphasis on teaching for the
test. A secondary criticism is that teacher's job security is too intricately tied to testing results.
This has been a persistent criticism since No Child Left Behind was enacted. Although No Child
Left Behind has not officially been overwritten or overturned, No Child Left Behind has been
left behind. According to Rich (2013) of the New York Times, “The Obama administration has
issued waivers that have so far released 39 states and the District of Columbia from the law’s
toughest deadlines” (para 10).
The growth of charter schools has continued at a stable pace of growth since first
implemented in 1999 (National Alliance for Public Charter Schools, 2012, Total Number of
Schools). So, while it is known that some states have raised or lifted caps for growth and
embraced charter schools due to the incentives from the federal government, there has not been
an increased rate of growth for charter schools since the implementation of the RttT funding.
In conclusion, educational reform has taken place, thanks, in part, to Race to the Top.
Hundreds of educational reform laws have been passed in a significant number of states across
the country since the inception of RttT. For example, the state of Michigan is now able to take
over the management of its lowest-performing schools (Michigan Department of Education,
2012, p. 1). Illinois can now fire teachers for performance issues (Tyler, 2011, para 5). Many
states have enacted stricter teacher evaluation laws. However, despite the number of educational
reforms that have been implemented, it is still too early to gauge the long-term impact of RttT. It
has been noted that every winning state has postponed some part of their grant implementation of
the reforms (Boser, 2012, p.3). The long-term impact of Race to the Top and the educational
reforms engendered by it will only be discerned over time.
Boser, U. (2012, March). Race to the Top: What have we learned from the States so far?
A state by state evaluation of Race to the Top performance. Center for American
Common Core State Standards Initiative. (2013). In the states. Retrieved from
Duncan, A. (2009, July 2). Turning around the bottom five percent. Remarks at the National
Alliance for Public Charter Schools Conference. Retrieved from
Funderstanding. (2014). Race to the Top: An Invitation to the Bad Old Days [Photograph].
Retrieved from http://www.funderstanding.com/educators/race-to-the-top-an-invitationto-the-bad-old-days-2/
Home School Legal Defense Association. (2013). Common Core issues: Common questions
answered. Retrieved from
Lu, A. (2014, January 24). Some states get cold feet as Common Core testing draws near. USA
Today. Retrieved from http://www.usatoday.com/story/news/nation/2014/01/24/statelinecommon-core- testing/4817739/
Michigan Department of Education, State Reform/Redesign Office (2012, September). 2012
Legislative report on Michigan’s lowest achieving schools. Retrieved from
National Alliance for Public Charter Schools. (2012). Total number of schools. Retrieved from
National Educational Association. (n.d.). "Race to the Top" and the American Recovery and
Reinvestment Act (ARRA). Retrieved from http://www.nea.org/home/31061.htm
Rich, M. (2013, July 23). Education overhaul faces a test of partisanship. The New York Times.
Retrieved from http://www.nytimes.com/2013/07/24/us/politics/education-overhaulfaces-a-test-of-partisanship.html?ref=nochildleftbehindact
Tyler, D. (2011). Illinois passes landmark educational reform legislation. Retrieved from
U.S. Department of Education. (2009, November). Race to the Top program executive summary.
Washington DC: Department of Education.
U.S. Department of Education. (2011, December 23). Department of Education awards $200
million to seven states to advance K-12 reform. Retrieved from
U.S. Government. (2013). The American Recovery and Reinvestment Act. Retrieved from
Part B: Introduction
The past 50 years have witnessed significant changes with respect to the legal educational
rights of national origin minority students. These changes have primarily been influenced by
court decisions and federal legislation as they embodied the evolving perceptions of equality in
the U.S. The Office of Civil Rights (OCR) has played a critical role in the monitoring and
implementation of policies affecting the education of language minority students. This oversight
by the OCR has led many schools and districts to revisit their attitudes and policies towards
language minority students and to make appropriate changes in order to provide “meaningful”
educational opportunities for this student population.
The Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and the Equal
Educational Opportunities Act of 1974 are the primary legal bases under which language
minority students have been provided with ‘appropriate’ educational services. Court decisions
based on these three federal laws have further extended the obligations of schools towards this
student population. Of all court decisions, Lau v. Nichols (1974), has had a tremendous impact
on services provided for minority students and has led to the development of the 1975 Lau
Remedies and the 1980 Lau Regulations; both of which have reinforced the application of equal
educational opportunities.
Besides examining the three foundational federal laws, decision, and regulations
mentioned above, the following section examines other federal court decisions which had taken
place since Lau v. Nichols. Likewise, these court decisions in the 1970s and 1980s have further
refined the understanding of the implications associated with Lau and the Equal Educational
Opportunities Act of 1974. The development of educational opportunities and their impact on
language minority students is presented as expressed through these decisions.
The Fourteenth Amendment to the United States Constitution is one of the
Reconstruction Amendments ratified on July 9 1868 by Congress. The Amendment asserted
four principles. They were:
State and federal citizenship for all persons regardless of race both born or
naturalized in the United States was reaffirmed.
No state would be allowed to abridge the ‘privileges and immunities’ of citizens.
No person was allowed to be deprived of life, liberty, or property without ‘due
process of law.”
No person could be denied ‘equal protection of the laws.”
The broad goal was to assure that the Civil Rights Act passed in 1866 would be honored.
The amendment was initially rejected by the Southern Confederacy. However, the
Confederacy had to accept the Amendment in order to be readmitted into Congress.
The Fourteenth Amendment, especially the equal protection clause in its first section, has
been cited in more legal cases than has any other amendment of the Constitution. One of the
most famous court cases, Brown versus Board of Education of Topeka, cited the Fourteenth
Amendment in order to uphold citizenship and declare school segregation unconstitutional. The
second, third, and fourth sections of this amendment have not generally been disputed. The fifth
section of the Amendment provides Congress with the power to enforce the principles laid out in
These five sections resulted in the establishment of a clear definition of the status of
citizenship within the United States as it is asserted in the main clauses of the Fourteenth
Amendment. The citizenship clause assures that any individual born in the United States is a
citizen; the second clause assures the rights of citizens, the due process clause establishes the
assurance of a fair legal process through a juridical system in which states must respect people’s
property, life, or liberty and the equal protection clause asserts that states must treat any
individual in the same manner under similar circumstances within their jurisdiction (Mikyung, L,
2010, p. 1).
The Fourteenth Amendment represented a significant milestone for all Americans
following the Civil War as prior to its adoption African Americans could not become citizens.
This amendment conceded every person the same rights under the law despite gender,
nationality, race, orientation, religious beliefs, or creed.
This amendment is one of the most important statutes of the United States Constitution
and is also one of the most controversial as its principles directly impact the economic, social
and political sectors of life in the United States. According to Clark Neily, senior attorney at the
Institute for Justice and Director of the Institute’s Center for Judicial Engagement, and a major
supporter of the Fourteenth Amendment, this reform has contributed to a more emancipated
country. (Foundation for Economic Education, 2013, para. 12).The 14th Amendment remains
important today. Neily asserts that the amendment has helped resolve issues related to racism
and other conflicts in the United States (Foundation for Economic Education, 2013, para. 13).
For instance, citing the Fourteenth Amendment, women obtained the right to practice law in the
State of Illinois; Catholic children were not forced to attend Protestant public schools in 1922;
and interracial marriages were legalized throughout the country. The Mildred and Richard
Loving case successfully overturned the Racial Integrity Act of 1924. (Foundation for Economic
Education, 2013, para. 13).
Nevertheless, opposition to the amendment is not uncommon, Allen Mendenhall,
attorney to Chief Justice Roy S. Moore of the Supreme Court of Alabama, indicated that the
Fourteenth Amendment has become a mechanism for the federal government to limit the powers
of the states as power has been centralized in the federal government (Foundation for Economic
Education, 2013, para. 2). Some critics say that the birthright citizenship clause has been
misinterpreted, and argue that illegal immigrants are not subject to the United States jurisdiction.
(Cromer, 2013, para. 15).
In so far as English Language Learners (ELLs) are concerned, this law ensures that they
are provided with equitable access to learning. It protects the children of immigrants born in the
United States as it grants them the right to citizenship. Thus, a law that was created over 200
years ago still continues to be valid and applicable today, especially with regard to issues related
to immigration. According to Kristof (2013), many parents of ELLs, some of them
undocumented immigrants, have to suffer the consequences of not receiving any protection from
the state and are forced to work without pay under unfair treatment and conditions, which
represents another form of slavery and segregation in modern times (Kristof, 2013, para. 3).
The principles embedded in the 14th Amendment continue to impact ELL education. It
brings great advantages and meaning to the job of ESL teachers are supported in their daily work
with ELLs because the Amendment provides teachers, students and families with a legal
framework that protects all people’s basic rights
In conclusion, passage of the Fourteenth Amendment was fundamental to changing the
course of American democracy by ensuring that everyone must be treated equally under the law
regardless of race, sex, religious belief or creed. It is as important today as the day it was ratified
in 1868.
Cromer, M. (2013). American Jackpot: The Remaking of America by Birthright Citizenship.
Retrieved from http://www.capsweb.org/caps-issues/american-jackpot-remakingamerica-birthright-citizenship
Foundation for Economic Education (2013). The Fourteenth Amendment. Retrieved from
Gulag Bound. (2013, March 7). 14th Amendment Ends Obamacare (Part 1) [Photograph].
Retrieved from http://gulagbound.com/37830/14th-amendment-ends-obamacare-part-i/
Kristof, N. (2013, November 6). Slavery Isn’t a Thing of the Past. New York Times, p. 1.
Retrieved from http://www.nytimes.com/2013/11/07/opinion/slavery-isnt-a-thing-ofthe-past.html?_r=0
Mikyung, L. (2010). Birthright Citizenship under the 14th Amendment of Persons Born in the
United States to Alien Parents. Congressional Research Service
The Civil Rights Act of 1964 was a landmark case of U. S. legislation. This act prohibits
discrimination on the basis of race, color, sex, religion, or nationality. The Act put an end to the
Jim Crow laws of 1896 whereby racial segregation defined as “separate but equal” was
constitutionally accepted. The Civil Rights Act became the bedrock of all future antidiscrimination legislation, such as the Voting Rights Act of 1965 (United States SenateCommittee on the Judiciary, n.d.).
During the 1960’s, African American leaders entreated the federal government to
promote a nationwide offensive against racial discrimination. In 1963, President John F.
Kennedy introduced the bill by using the following definition of “simple justice”,
Simple justice requires that public funds, to which all taxpayers of all races [colors, and
national origins] contribute, not to be spent in any fashion which encourages, entrenches,
subsidizes or results in racial [color or national origin] discrimination. (The United States
Department of Justice, 2013)
After several debates in Congress and the House of Representatives, President Lyndon B.
Johnson signed the Civil Rights Act into law on July 2, 1964.
Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color, and
nationality in programs and activities receiving federal financial assistance. In addition, Title VI
regulatory requirements have been cited to prohibit the denial of equal access to education
because of a language minority student’s limited proficiency in English (U.S. Department of
Education, n.d.).
Although Title VI was the definitive legislation that put an official end to racial
segregation, it was not the only one. Prior to 1964, several enacted executive orders prohibited
racial discrimination in the armed forces, in employment by federally funded construction
contractors, and in federally assisted housing. Also, various federal court decisions have been
handed down for the purpose of eliminating discrimination in individual federally assisted
programs (Hamilton County, 2012).
The inception of effort to put into law the principles included in Title VI was launched
when Congress recognized the need for a statutory nondiscrimination provision to apply across
the board. In this regard, Senator Hubert Humphrey stated three main reasons for implementing
Title VI. First, the overturning of Brown v. Board of Education did not invalidate several
important financial assistance statutes. Second, Title VI would eliminate any doubts that some
Federal agencies may have had about their authority to prohibit discrimination in their programs.
Third, Title VI would insure the uniformity and permanence to the nondiscrimination policy in
all programs and activities involving Federal financial assistance.
Consequently, Title VI would eliminate the need for Congress to debate
nondiscrimination amendments in each new piece of legislation authorizing Federal financial
assistance (Hamilton County, 2012).
An important provision of this piece of legislation is that failure to ensure that LEP
persons can effectively participate in or benefit from federally assisted programs and activities
due to their language barrier may violate the prohibition under Title VI and Title VI regulations
against national origin discrimination (U.S. Department of Education, n.d.).
Once Title VI was signed into law, profound changes took place in American education
that increased educational opportunities for minority students. The following high school
statistics reflect the impact of such changes: before 1964, only 26% of African Americans aged
25 and over earned at least a high school diploma. That percentage grew to 82% by 2007. High
school graduation rates among African Americans have increased substantially in the past twenty
years and drawn much closer to the high school graduation rate of whites. (U.S. Department of
Education, 2009). In addition, the dropout rate of African American students (aged 16 to 24)
declined from 20.5% in 1976 to 13.0% in 1996 (National Center for Education Statistics, 1997).
From 1987 to 1998, the average SAT score of Asian American students increased 19 points on
the verbal section and 21 points on the mathematics section. The average score for American
Indian students increased 9 points on the verbal section and 20 points on the mathematics
section. The average score for African American students increased 6 points on the verbal
section and 15 points on the mathematics section. All of these increases exceeded those
achieved by white students (The College Board, 1997; and College-Bound Seniors National
Report, 1998). Since, since 1995, the number of high school advanced placement exams taken
by African American students has tripled, and the number of AP exams taken by Latino students
has quadrupled (U.S. Department of Education, 2009).
With regard to higher education statistics, African American, Hispanic, Asian/Pacific
Islander, and American Indian/Alaskan Native students made up 17% of college graduates in
1976. By 2004, these students comprised 32% of college undergraduates (U.S. Department of
Education, 2009). The total minority enrollment at college and universities increased 61%
between fall 1986 and fall 1996. Since 1990, the number of Latino students enrolled in higher
education increased by 47%; the number of African American students increased by 20%; and
the number of American Indian students increased by 30% (National Center for Education
Statistics, 1997).
In a similar vein, the number of bachelor’s degrees in engineering awarded to African
American increased 75% from 1981 to 1996. African American students were awarded 1,563
doctorates in 1996. This represents a 48% increase since 1987 (National Center for Education
Statistics, 1997).
In conclusion, the Civil Rights Act eliminated many barriers that once prevented
minorities, women, individuals with disabilities, and older persons form freely choosing the
educational opportunities and careers they would like to pursue.
Hamilton County, TN. (2012). Heart of Title VI. Retrieved from http://www.hamiltontn.gov/
Lexis Nexis. (2014). US Supreme Court Seal [Photograph]. Retrieved from
National Center for Education Statistics. (2007). Digest of Education Statistics 1997. Retrieved
from http://www.finaid.org/educators/educstat.pdf
Ovando, C., & Combs, M. (2012). Bilingual and ESL classrooms: Teaching in Multilingual
Contexts (5th ed.). New York, NY: McGraw Hill.
The Leadership Conference. (2014). School Desegregation and Equal Educational Opportunity.
Retrieved from http://www.civilrights.org/resources/civilrights101/desegregation.html
United States Department of Education. (1999). Impact of the Civil Rights Laws. Retrieved from
United States Department of Education. (2009, July 1). Anniversary of Title VI Marks Progress
and Reminds us that Every Child has the Right to an Education. Retrieved from
United States Department of Education. (n.d.). Office of Civil Rights: Programs for English
Language Learners. Retrieved from http://www2.ed.gov/about/offices/list/ocr/ell/edliteglossary.html
United States Department of Justice. (2013, October 31). Title VI of the Civil Rights Act of
1964. Retrieved from http://www.justice.gov/crt/about/cor/coord/titlevi.php
United States Senate Committee on the Judiciary. (n.d.). The Civil Rights Act of 1964. Retrieved
from http://www.judiciary.senate.gov/about/history/CivilRightsAct.cfm
The Civil Rights movement with its emphasis on equality has played a central role in
shaping the legislation underlying the Equal Educational Opportunities Act (EEOA) (Ovando &
Combs, 2012, p. 79). In 1972, President Nixon discussed his EEOA proposal; he stated that the
act would mandate all U.S. schools to provide equal educational services to all students,
regardless of their origin, race, color, or cultural background. Nixon further stated that this act
would help establish better education for all children as well as support the role of education in
maintaining a prosperous nation (Law and Higher Education, 2010, para. 4). The seminal
decision from the Lau v. Nichols case for minority groups has helped support Nixon’s proposal
before it was officially passed by Congress in 1974. Lau’s recognition that LEP students were
denied a proper education because of instruction that failed to support their linguistic needs
“reignited Nixon’s 1972 EEOA proposal,” and the act was passed as a House bill in 1974 to
amend the Elementary and Secondary Education Act of 1965 (Berenyi, 2008, p. 646). The bill
examined the responsibilities of public schools towards their students as well as their role in
providing students with the opportunity to advocate for their rights. LEP students’ rights were
also delineated in the act. As stated by President Nixon, “These children will not have true
equality of educational opportunity until these language and cultural barriers are removed”
(Berenyi, 2008, p. 647).
Despite its attempt to support equal educational opportunities, some sources criticize the
act’s ability to sufficiently support the needs of LEP and minority students. In fact, it was noted
that some schools, even after the passage of EEOA, failed to implement LEP programs and
“waited for a court order before taking any action” (Berenyi, 2008, p. 648). As argued by
Berenyi (2008), if Congress truly seeks to ensure LEP’s rights under the EEOA, then it needs to
maintain that educational institutions take “appropriate action” before a claim reaches court (p.
668). Without further language clarifying the rights of LEP students their right to full access to
education is not clear. Thus, proposals have been made to amend the statute’s wording. Berenyi
(2008) noted that clarifying the act’s requirement would enable districts and schools to “maintain
control over the specifics of the educational program chosen” while ensuring that LEP students
are being provided with equal educational opportunities (p. 669). A further clarification may still
be needed since LEP students have higher dropout rates than do their English-proficient
counterparts (Shaul, 2001, p. 59)
Although some argue that the EEOA’s language is “too vague to sufficiently protect the
rights of LEP students,” the act prompted educational authorities to provide minority students
with adequate and ‘meaningful’ educational services (Berenyi, 2008, p. 642). In fact, in 2002,
the New York Board of Education reached an agreement with the U.S. Department of Justice to
provide 300 million dollars (over a period of five years) to fund educational programs aimed at
minimizing the gap between minority and non-minority students (Department of Justice, 2003,
para 2). Similar settlements and funding projects, also arising under the EEOA, have had a
positive impact on educational services provided to LEP students. Enactment of the EEOA also
helped to diminish discrimination against minority groups in U.S. public schools. Before the
EEOA was officially passed by Congress in 1974, patterns of discrimination against minority
students were very common (Berenyi, 2008). For instance, the Department of Health, Education,
and Welfare (HEW) “presented findings indicating the frequency of practices denying equality
of education to Spanish surnamed pupils” (Berenyi, 2008, p. 654). Reports issued by HEW
revealed similar discriminatory practices against Chinese and Portuguese student populations.
Despite the need for either further clarification of the statute or for enforcement of it, passage of
the EEOA in the 1970s helped preserve the rights of national origin minority groups in U.S.
public schools. It also eliminated language and cultural barriers that prompted states to
overcome issues of discrimination prohibiting the execution of equal educational opportunities
for English language learners (Berenyi, 2008, p. 654).
Berenyi, J. (2008). “Appropriate action,” inappropriately defined: amending the equal education
opportunities act of 1974. Washington and Lee Law review, 65, 640-659.
Law & Higher Education. (December, 2010). Equal Educational Opportunities Act (EEOA).
Retrieved from http://lawhighereducation.org/52-equal-educational-opportunities-acteeoa.html
Law Offices of Rosemary Purtell, LLC. (2009). Home Page [Photograph]. Retrieved from
Ovando, C. J., & Combs, M. C. (2012). Bilingual and ESL classrooms: Teaching in
multicultural contexts (5th edition). New York, NY: McGraw-Hill.
The United States Department of Justice. (2013). Types of educational opportunities
discrimination. Retrieved from http://www.justice.gov/crt/about/edu/types.php
Lau v. Nichols has been called a “turning point in bilingual education” (Lau, 1979;
Ovando & Combs, 2012, p. 79) and is viewed as “the most important court decision regarding
the education of language minority students” (Wright, 2010). In this 1974 case, the Supreme
Court ruled that the San Francisco school district (Nichols) had violated the rights of non-English
speaking Chinese students (Lau) to equal education and educational opportunities by failing to
provide adequate compensatory English language and content area instruction for these students.
The students claimed that due to their English language deficiencies their legal right to such
education had been denied; therefore, they were being discriminated against. The suit was
brought on the basis of the 1964 Civil Rights Act (CRA) (Sections 601 and 602), the California
State Constitution (CSC), and the California Education Code (CEC). The District Court, and
later the Appeals Court, denied any remedy to the students finding that the school district had
met its obligations with respect to the students’ right to an education, and that it had provided
them equal educational opportunities (Education Law, n.d., p. 1; Beyond Brown, n.d.). Lau v.
Nichols was referred for review to the Supreme Court by the Appellate Court, and the Court took
on the case due to its importance as evidenced by the issues and the number of students involved
(National Association for Bilingual Education, n.d., p. 2).
When the case was first brought in California District Court, at issue was whether or not
non-English speaking students were being discriminated against because of their limited English
proficiency and consequent inability to take “full advantage” of educational opportunities
available to other students. A second issue arising from this revolved around the legal
responsibility of the school district to provide appropriate alternative English language and
content instruction for these students (Department of Education, n.d., pp. 3-4; Constitutional
Rights Foundation, n.d). A constituent element in determining legal responsibility was
specification of the nature and level of remedy required of the school district in order for it to be
in compliance with federal law (Constitutional Rights Foundation, n.d.; Stanford, n.d., p. 1).
Having provided fewer benefits to this minority than to other students, the Court found
that the school district had thereby denied them “a meaningful opportunity to participate in the
public educational program—all earmarks of discrimination banned by the regulations”
(Department of Education, n.d., p. 4; Stanford, n.d., p. 1). The district had thus violated Section
601 of the 1964 Civil Rights Act which banned discrimination “on the ground of race, color, or
national origin” in any program that received federal funding (Stanford, n.d., p. 1; Department of
Education, n.d., pp. 1, 3). Additionally, the Court found that the school district had violated
regulations of the Department of Health, Education, and Welfare (HEW) promulgated to
implement, enforce, and clarify the provisions of CRA for any agency receiving federal funds
(Education Law, n.d., p. 1). Finally, it was noted that the Education Code and the state law of
California required English to be the language of instruction, required students to be proficient in
English in order to graduate, and required all children ages six through sixteen to attend school.
While subjecting students to these requirements, the school district in this case had not provided
the Chinese students cited in the law suit with sufficient and appropriate English language
instruction to meet the standards (Department of Education, n.d., pp. 2-3). At the same time,
however, the school district did provide English language instruction to other Chinese students
enrolled in the system. Therefore the school district was charged with not providing equal and
identical educational opportunities and instruction to all students (Department of Education, n.d.,
p. 2; Beyond Brown, n.d.). At state and federal levels the San Francisco School District was
found to have violated students’ educational rights. The Court ruled in favor of the students
(Lau), reversed the decision of the Appeals Court, and sent the case back to the state “for the
fashioning of appropriate relief ” (Department of Education, n.d., p. 4; National Association of
Bilingual Education, n.d., p. 4). The school district had to rectify the inadequacies of instruction
and inequalities of access due to language deficiencies by providing appropriate remedies
(Constitutional Rights Foundation, n.d.; Crawford, 1996, pp. 1-2; Zehr, 2007).
Although the Supreme Court did not specify in Lau v. Nichols what actions the school
district needed to take in order to be in compliance with federal law, it did make clear that to the
extent these language deficiencies negatively impacted student access to opportunities available
to other students, any school or program receiving federal funding had to take “active and
meaningful” steps to rectify student linguistic deficiencies (Department of Education, n.d. p. 5;
Crawford, n.d., p. 1). The Court further noted that it was not sufficient to show compliance by
simply treating all students equally and providing English Language Learners (ELLs) with the
same materials and teachers as other students. Compensatory remedies were required on the part
of the school system (Department of Education, n.d., p. 5; Crawford, 1996, p. 1; Beyond Brown,
n.d.; Education Law, 2012).
Lau v. Nichols was primarily a civil rights case and was decided on the basis of Section
601 of the Civil Rights Act of 1964. Its decision had a significant and positive impact on the
education of language-minority students; it increased awareness of each school district’s
responsibilities and furthered additional clarifying legislation. School systems could no longer
discriminate against non-English speaking students by failing to provide adequate supplemental
education. The principles of the Lau decision were incorporated into the 1974 Equal
Educational Opportunities Act (EEOA), and they continue to influence educational practice
through such legislation.
Beyond Brown: Pursuing the Promise. (n.d.). Summary of Lau v. Nichols 1974.
Retrieved from http://www.tc.pbs.org/beyondbrown/brownpdfs/launichols.pdf
Constitutional Rights Foundation. (n.d.). Lau v. Nichols (1974).
Retrieved from http://crfimmigrationed.org/index.php/supreme-court-summaries/lau-vnichols-197
Crawford, J. (n.d.). Lau v. Nichols (excerpts). Retrieved from http://www.languagepolicy.net/
Crawford, J. (1996). Summing up the Lau Decision: Justice Is Never Simple. Retrieved from
Education Law. (2012,March 13). Lau v. Nichols. Retrieved from http://educational-law.org/362lau-v-nichols.html\
Glogster. (2007). 414 U.S. 563: Lau vs. Nichols [Photograph]. Retrieved from
Lau, E.P. (1979). Lau Vs. Nichols—A Turning Point in Bilingual Education. Retrieved from
MA Zehr. (2007, November 1). Examining the impact of Lau v. Nichols [Web log post].
Retrieved from http://blogs.edweek.org/edweek/learning-thelanguage/2007/11/looking_at_the_impact_of_lau_v.htm
National Association for Bilingual Education. (n.d.). LAU V. NICHOLS. SUPREME COURT
OF THE UNITED STATES. 414 U.S. 56 (1974). Retrieved from
Ovando, C. & Combs, M. (2012). Bilingual and ESL classrooms: Teaching in multicultural
contexts (5th ed.). New York, NY: McGraw-Hill.
Stanford University. (n.d.). Lau vs.Nichols (1974) Discussion Points from the Supreme Court
Decision. Retrieved from
U.S. Department of Education. (n.d.). Developing Programs for English Language Learners:
Lau v. Nichols. Retrieved from http://www2.ed.gov/about/offices/list/ocr/ell/lau.html
Wright, W.E. (2010). Equal Educational Opportunities for ELLs. Lau v. Nichols. Retrieved
from http://www.colorincolorado.org/article/49704/
In the 1970s, multiple court cases emerged in an effort to help defend the rights of
national origin minority students. One court case, Lau v. Nichols, charged the San Francisco
United School District with failing to deliver adequate programs to meet the language needs of
1,800 Chinese students, {particularly of those students of Chinese ancestry who did not speak
English] (Brisk, 2008, p. 24). The San Francisco school system also filed to provide these
students with other adequate instructional procedures, denying them a meaningful opportunity to
participate in the public educational program. Although the court’s decision supported the
students, it did not release a set of guidelines to which the school should adhere in order to solve
this inadequacy. Rather, it mandated the school district “to apply its expertise to the problem and
rectify the situation” (Lau v. Nichols, p. 565). Thus, in August 1975, the Office of Civil Rights
(OCR) issued specific guidelines mandating school districts to conform to the Title VI
requirements and the 1974 Lau decision. Although officially titled “Task Force Findings
Specifying Remedies Available for Eliminating Past Educational Practices Ruled Unlawful
Under Lau v. Nichols," the guidelines are often referred to as the Lau Remedies or Lau
Guidelines (Brisk, 2008, p. 24).
The guidelines included a number of strategies and efforts perceived by the Education
Commissioner of the Department of Health, Education and Welfare (HEW) as being crucial to
informing public schools’ of their responsibilities towards minority students. These guidelines
specified the procedures public school administrators and personnel must adhere to in order to
identify and assess the English language skills of minority group students enrolled in their
schools. The Lau Remedies also stated that minority students must be provided with
instructional resources to meet their needs, and school administrators must determine when LEP
students are ready to transition to mainstream classes. The guidelines also informed language
minority students’ teachers of the standards they should meet and of the planned timetables for
meeting these goals (The Mid-Atlantic Equity Center, 1992, para. 2). Most importantly, “The
remedies went beyond the Lau decision,” requiring schools to take immediate action had there
been any alleged violations of student rights (Valencia, 2008, p. 366). Moreover, schools that
relied solely on ESL programs were expected to demonstrate that their programs were as
effective as bilingual programs in supporting minority students’ cognitive development,
particularly since ESL programs were considered lacking in this aspect (Valencia, 2008, p. 366).
Despite the fact that the standards were viewed as being inadequately written, they are
still regarded as the primary guidelines by which the OCR determined schools and districts’
compliance with Title VI and the 1974 Lau decision (The Mid-Atlantic Equity Center, 1992,
para. 4). Although the guidelines “lacked the legal status of federal legislation” (Valencia, 2008,
366), they were frequently cited in Federal Courts and, as a result, have had a significant impact
on education and minority student populations. Since the publication of the Lau Remedies in
1975, the OCR conducted hundreds of Title VI compliance reviews to evaluate the effectiveness
of educational programs offered to minority students. The reviews “led to the negotiation of 359
school district Lau plans by July 1980, with virtually all of them based on the Lau Remedies”
(The Mid-Atlantic Equity Center, 1992, para. 4).
While the Title VII Bilingual Education Act applied only to federally funded programs,
the Lau Remedies ensured that all school districts incorporated instructional approaches must
meet the needs of minority students. Not only were elementary schools required to provide
special ESL instruction, they were also expected to incorporate subject-matter instruction in the
child’s native language until students reached sufficient proficiency in English to experience
academic success in monolingual English classes (Wright, 2010, para. 4). The Lau Remedies
also put forth suggestions as to the type of program schools should employ in order to meet the
needs of LEP students. One of the pivotal items of the guidelines was the implementation of
bilingual programs at the elementary level. Other suggestions were made with regard to
effective approaches at the high school level. The Lau Remedies have thus played a crucial role
in providing equitable educational opportunities to ELLs and other minority students.
Brisk, M. (2008). Bilingual education: From compensatory to bilingual education. Mahwah, NJ:
Lawrence Erlbaum Associate, Inc.
Lau v. Nichols, 414 U.S. 56 (1974). Retrieved from
The Lane Report. (2014, February 2013). 2013’s Biggest Court Rulings [Photograph]. Retrieved
from http://www.lanereport.com/29375/2014/02/2013s-biggest-court-rulings/
The Mid-Atlantic Equity Center. (1992). Appropriate action. Retrieved from
Valenci, R. (2008). Chicano students and the courts: The Mexican American legal struggle for
educational equality. Retrieved from
Wright, W. (2008). Landmark court rulings regarding English language learners. Retrieved
from http://www.colorincolorado.org/article/49704/
The Lau Regulations proposed in 1980 (PLR) were an effort on the part of the Carter
Administration to replace the Lau Remedies (the Remedies) issued in 1975 with a formal
document having full legal status (Department of Education, 2005, March, p. 2; Littlejohn, 1998,
p. 4). This document embodied the recommendations and interpretive guidelines of the Lau
Remedies, specifying the obligations of school districts under Title VI of the 1964 Civil Rights
Act with regard to appropriate compensatory education for Limited English proficiency students
(LEP) that would meet compliance standards (Department of Education, 2005, March, p. 2;
Littlejohn, 1998. pp. 2-3). The Lau Remedies were based upon the 1974 Supreme Court ruling
in Lau v. Nichols. In this ruling, the school district was found to be in violation of Title VI and to
be discriminating against LEP students because the district had failed to provide effective
remedies for the students’ English language deficiencies (Crawford, 1987, pp. 4-5). The
Remedies were unofficial interpretive guidelines issued by the Office of Civil Rights (OCR) of
the Department of Health, Education, and Welfare (DHEW) and were meant to provide direction
to school districts about the nature of acceptable remedial actions/programs for compliance with
Lau v. Nichols. Though never published in the Federal Register, the Remedies became “de facto
compliance standards” (Lyons as cited in Ovando & Combs, 2012, p. 80).
The Remedies went beyond the requirements of Lau v. Nichols, however (Crawford,
1987, pp. 4-5). Whereas the Court had not specified any particular remedial actions to be taken
and had left the states and school districts to implement instructional programs according to local
need and situations; the Lau Remedies were more prescriptive, even requiring bilingual
education for elementary students (Littlejohn, 1998, p. 3; Stanford, n.d., p. 1). They also raised a
good deal of controversy due to the manner in which they had been decided and to the lack of
definitive standards for determining violations of Title VI (Cato Institute, 1980, November, p. 1;
Crawford, 1987, pp. 5-6). The fact that the Remedies were not legally binding was an important
element in favor of their opponents in court cases brought by school districts against OCR;
OCR thus found it opportune to get the Remedies published and to be used as a new Title VI
(Littlejohn, 1998, p. 4).
With this background, the 1980 PLR came into being when a Notice of Proposed
Rulemaking (NPRM) was published in the Federal Register under the title “Nondiscrimination
Under Programs Receiving Federal Finance Assistance Through the Department of Education,
Effectuation of Title VI of the Civil Rights Act of 1964,” but known as the Language Minority
NPRM. The regulations promulgated under the Language Minority NPRM were the Proposed
Lau Regulations of 1980, and were the Carter Administration’s effort to embody the Lau
Remedies and to give them federal legal status (Littlejohn, 1998, p. 4).
Building on the Lau Remedies, the PLR of 1980 mandated bilingual education in any
school with twenty-five or more LEP students “of the same language group …enrolled in two
consecutive grades, K through 8th” (Bilingualism in the United States, 2004, February, 14, p. 6;
Stanford, n.d., p. 2). Bilingual instruction in core subjects would thus become the required
method of instruction in many circumstances (Crawford, 1987, p. 6; Cato Institute, 1980, p. 1).
The PLR also specified how LEP students would be identified, as well as how students and the
school programs established for their benefit would be assessed (Ovando & Combs, 2012 p. 83).
The Lau Regulations, as proposed in 1980, resulted in a virtual firestorm of criticism and
opposition. It was said that this push for bilingual education was a ploy to win the Hispanic vote
for the 1980 presidential election and was thus only a political move on Carter’s part (Crawford,
1987, p. 6). Perhaps more to the point, there were thousands of letters of complaint from school
districts stating that these regulations went too far beyond the initial case decision of Lau v.
Nichols, intruded into the state and local realms of authority, and demanded burdensome, if not
impossible to provide, remedies for the linguistic deficiencies of LEP students. Additionally,
there was the very real question as to whether bilingual education was educationally sound and
truly more beneficial for LEP students learning English and content material (Crawford, 1987, p.
The PLR focused attention on several other social and political controversies as well. If,
as some had argued, schools are primary places for socialization and enculturation, the question
was whether they should promote pluralism and embrace diversity (as exemplified in the
bilingual emphasis of the PLR); or should they promote national unity as expressed through the
use of English as the common language (English only or English as transitional). Educators and
politicians debated the use of American tax money to “support maintenance of foreign languages
and cultures” (Lyons, 1992, pp. 1-2; Crawford, 1987, p. 7). School districts had serious
financial concerns regarding the PLR due to the additional expenditures that could result from
implementation requirements; the need to hire additional staff, purchase additional instructional
materials, and provide services as well as assessments outside of the usual in order to prove
In February of 1981, under the new Reagan Administration, the 1980 PLR was
withdrawn due to the huge nationwide negative response it had drawn (Littlejohn, 1998, p. 4;
Stanford, n.d., p. 2). Earlier, Congress had actually blocked it from taking effect; with its
complete withdrawal in February, states and school districts were again free to implement Title
VI and the principles of Lau v. Nichols as they deemed appropriate for their local situation
circumstances and particular LEP students.
Bilingualism in the United States, A historical perspective. (2004, February). Retrieved from
Cato Institute. (1980, November). Bilingual education: The new accent in civil rights regulation.
Perspectives on current developments. Retrieved from
Crawford, J. (1987). Bilingual policy has taken shape along two federal tracks. Education Week.
Retrieved from http://www.edweek.org/ew/articles/1987/04/01/27policy.h06.html?tkn=
Littlejohn, J. (1998). Federal control out of control: The Office for Civil Rights’ hidden
policies on bilingual education. Retrieved from Office for Civil Rights, Center for Equal
Opportunity, website: http://www.users.interport.net/r/e/readinst/ocr2.html
Lyons, (1992). A summary overview. National Origin and civil rights.
Retrieved from The Mid-Atlantic Equity Center, Chevy Chase, MD, website:
Ovando, C. & Combs, M. (2012). Bilingual and ESL classrooms: Teaching in multicultural
contexts. New York, NY: McGraw-Hill.
Shannin Law Firm, P.A. (2012). Trial Appeals [Photograph]. Retrieved from
Stanford University. (n.d.). Evolution of important events in California education policy.
Retrieved from Stanford University, website
U.S. Department of Education. Policy regarding the treatment of national origin minority
students who are limited English proficient. Retrieved from the Office for Civil Rights,
Department of Education, Washington, DC website: http://www2.ed.gov/about
/offices/list/ocr/docs/lau1990_and _1985.html?exp=5
Lau Regulations
Almost all of the U.S. bilingual education laws and acts were enacted on behalf of the
education provided to immigrants. However, the unique case of Aspira v. Board of Education of
the City of New York (1974) was a class-action suit for American citizens, specifically students
of Puerto Rican origin, who attende-d the New York City public schools (Reynolds, 2011, p. 18).
Buder reported that a key element in the Aspira Consent Decree was that citizens with limited
English proficiency (LEP) who were students were to have access to bilingual education (as cited
in Reyes, 2006, para. 7).
The word “aspira” in Spanish is synonymous with the English translation “aspire” (De
Jesús & Pérez, 2009, p. 22). According to Lavietes, the non-profit Aspira organization was
formed by Antonia Pantoja in 1961 as a response to the high Puerto Rican students’ dropout rates
(2002, para. 8). Del Valle related that the Aspira organization in 1966 commissioned a report to
document the situation of Puerto Rican students in New York City (NYC), entitled The Losers
(as cited in Garcia, 2011, p. 135). Castellanos said that Puerto Ricans comprised 21% (one in
five) of all students in the NYC school system. Noting the Aspira report, Garcia related that in
1972 there were 245,000 Puerto Rican students enrolled in the NYC schools, and, quoting from
Del Valle, “40% of [them] spoke Spanish only” (p. 135). However, according to the Puerto
Rican Forum in 1970, 73% of the Puerto Rican students needing bilingual education were not
being offered it (as cited in Garcia, 2011, p. 136). Thus, Garcia concluded, “New York City
schools were poorly prepared to educate Puerto Rican students” (p. 135). Two months before the
Aspira case was brought before the court, in the U.S. Department of Public Affairs report to
determine the effectiveness of the bilingual educational programs in the NYC public schools,
Steinberg assessed, “… no systematic methods have been devised by the Board of Education to
assess the needs of pupils with English language difficulty, the adequacy of services provided or
the effectiveness of these services” (1974, Abstract).
Aspira was represented by the Puerto Rican Legal Defense and Education Fund, which
was created “in response to the community’s outrage over the school system’s failure to educate
its children” (Reyes, 2006, para. 1). The Consent Decree in the Aspira v. Board of Education of
New York decreed that children “whose language deficiency prevents them from participating in
the learning process and who can more effectively participate in Spanish” would be federally
“entitled to the full program” (Consent Decree in Aspira et al., Plaintiffs v Board of Education of
the City of New York, et al., Defendants, Abstract). Almost all of the Consent Decree’s
requirements of the NYC Board of Education, were “(a) intensive instruction in English; (b)
instruction in subject areas in Spanish; and (c) the reinforcement of the pupils’ use of Spanish
and reading comprehension in Spanish where a need is indicated”, and to be in place within four
months (September 1975) (Abstract). Additionally, these students were required “to spend
maximum time with other children” for social inclusion (Abstract). Garcia (2011) relates that,
although the Puerto Rican community was pleased to have won the case, this settlement
“narrowed the focus of bilingual education to a transitional approach” (p. 137). Santiago
recorded that, after a student reached an agreed-upon proficiency in the 21 percentile of the
Language Assessment Battery and English Language Proficiency Test, the Aspira verdict
required the student to be removed from bilingual education (as cited in Reynolds, 2011, p 18.)
Was the Aspira Consent Decree federal ruling upheld? Willner related that in 1984,
approximate ten years after Aspira, the Educational Priorities Panel published a report entitled
“Ten years of neglect: The failure to serve language minority children in the New York City
public schools” largely due to high dropout rates among Puerto Rican students (as cited in
Garcia, 2011, p. 137). As a follow-up, Del Valle pointed out that 40% of eligible languageminority children were not receiving any services (as cited in Garcia, p. 138). Thus, as a result of
the poor results, Reyes noted, the NYC cut-off score on the assessment for bilingual or ESL
program eligibility was raised to the 41 percentile, double the original ceiling (21 percentile) for
eligibility (cited in Garcia, 2011, p. 138). According to both Garcia and Bartlett, one difficulty is
that, although many speak English well, “they continue to fail in schools in disproportionate
numbers” (p. 142). Speaking of the need for a collective educational vision, Reyes (2006)
declared, “… the challenge is to come to consensus on a public education mission based on
principles of equity, adequacy, and excellence” (p. 21).
Aspira mandated for LEP and NES peers “to spend maximum time with other children as
to avoid isolation and segregation from their peers” (Consent Decree in Aspira, Abstract).
However, in its review of the states’ impact on federal education regarding bilingual policies and
practices from 1945 through 2009, the U.S. Department of Education office explained NYC’s
bilingual program after Aspira that students were taught part of the day in their native language,
which did not lend itself to actively fostering racial integration (n.d., para. 3).
How can bilingual education beyond Aspira be improved? Garcia concludes, “Educating
bilingually is the only way to meaningfully teach all children around the world in the twenty-first
century. In order to do that successfully, both for language minorities and language majorities,
our twentieth-century understandings of bilingualism need to be shed” (2011, p. 142).
Consent Decree in Aspira et al, Plaintiffs v Board of Education of the City of New York, et al.,
Defendants, 349 F. Supp. 1161 (S.D. N.Y. 1975). Retrieved from
De Jesús, A. & Pérez, M. (2009, Fall). From community control to Consent Decree: Puerto
Ricans organizing for education and language rights in 1960s and 70s, New York City.
Central Journal. 21(2). 6–31. Retrieved from
García, O. (2011, March). Educating New York’s bilingual children: Constructing a future from
the past. International Journal of Bilingual Education and Bilingualism, (14)2, 133-153.
Retrieved from http://ofeliagarcia.org/publications/
Lavietes, S. (2002, May 28). Antonia Pantoja, champion of bilingualism, dies at 80. The New
York Times. Retrieved from http://www.nytimes.com
Reyes, L. O. (2006, Fall). The Aspira Consent Decree: A thirtieth-anniversary retrospective of
bilingual education in New York City. Harvard Educational Review. 76(3), 369–402.
Retrieved from http://www.americancorners.or.kr/articlealert/us7009.htm
Reynolds, C. W. (2011). The influence of dual language education upon the development of
English reading skills at kindergarten through grade two students (Doctoral dissertation).
Retrieved from http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1003&context=
Steinberg, Lois S. (1974, June). National Institute of Education: Department of Public Affairs.
Report on bilingual education: A study of programs for pupils with English language
difficulty in New York City Public Schools Retrieved from
U.S. Department of Education. (n.d.). The Nixon years: The bilingual education act of 1974.
Washington DC: Department of Education. Retrieved from
In 1978, the Federal District Court for the Eastern District of New York rejected the
Brentwood School District’s proposed bilingual program on the grounds that it would violate
“Lau Guidelines” by unnecessarily segregating Spanish-speaking students from their Englishspeaking peers in music and art (Texas Education Agency, 2004).
The Cintron v. Brentwood case began May 1977 when Brentwood Union Free School
District experienced a decline in enrollment and had to lay off some of its staff. Fifteen bilingual
teachers with seniority and two part-time bilingual teachers were laid off. Only seven bilingual
teachers were kept on and a separate tenure system for bilingual and ESL teachers was created in
order to preserve the bilingual program. This decision negatively impacted the school district’s
comprehensive bilingual program for Hispanic students. Non-bilingual senior teachers facing
dismissal challenged this action in the Morris v. Brentwood law suit on the grounds that it was in
violation of the state’s tenure law. In this case, the state court ruled that under New York law
there could not be special tenure for bilingual or ESL teachers and that dismissal must be based
on seniority. Therefore, school officials were forced to lay off junior teachers which included
most of the teachers in the bilingual and ESL programs (LEAGLE, 2013).
After the announced intention of Brentwood Union Free School District to restructure its
bilingual program as a result of the Morris v. Brentwood case, parents of children in the ESL
program filed a class action federal suit. The Cintron plaintiffs argued that the state tenure law
requiring layoffs in order of seniority conflicted with their federally guaranteed right to bilingual
education (Texas Education Agency, 2004).
In face of this situation, the court asked the school district to re-design its bilingual
program to address the needs of its bilingual population. The first proposed bilingual program,
known as Project Avelino, was rejected because it was in violation of the Equal Educational
Opportunity Act of 1974 and the Lau Guidelines. In this plan, Spanish speaking students were
kept separated and apart from English speaking students in music and art. This program also
failed to provide a transfer mechanism for students reaching an English proficiency level
enabling them to participate in classes with regular English instruction. The court determined
that the administration of the bilingual program was a perversion of the purpose and a misuse of
funds (LEAGLE, 2013).
The second plan submitted, known as Plan V, proposed an immersion into English
language and culture and a subordination of Hispanic culture with a view towards accelerating
the acquisition of English. This plan was in violation of the Bilingual Education Act, the Equal
Educational Opportunity Act of 1974, Title VI of the Civil Rights Act of 1964, and Lau
Guidelines. In addition, the manner of identifying students who were deficient in English was
not clearly indicated. Plan V was unacceptable because while integration was encouraged, there
was no assurance that language deficient students in the upper grades would be identified
(LEAGLE, 2013).
After this ruling, Brentwood Union Free School District retained recently hired bilingual
teachers. Project Avelino was then transformed it into a bilingual/bicultural education program
that included identification, long-term assessment of language minority students’ academic
performance, development of appropriate and high-quality desegregated programs for all
students, and professional development for bilingual teachers (Ovando & Combs, 2012, p. 81).
LEAGLE. (2013). Cintron v. Brentwood Union Free School District Case. Retrieved from
Ovando, C., & Combs, M. (2012). Bilingual and ESL classrooms: Teaching in
Multicultural contexts (5th edition). New York, NY: McGraw-Hill.
(5th ed.). New York, NY: McGraw Hill.
Texas Education Agency. (2004, August). Chronology of Federal and State Law & Policy
Impacting Language Minority Students. Retrieved from http://www2.sfasu.edu/enlace
RIOS versus READ
In 1978, the Federal District Court for the Eastern District of New York concluded that
the Pastchogue-Medford School District's transitional bilingual program for language-minority
students was not sufficient in terms of bilingual professional training, language assessment, and
program placement procedures, teaching procedures, approaches, methods, and native language
curriculum materials and native language instruction. The case was decided under the
Fourteenth Amendment which states that “No person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial assistance”
(U.S. Department of Education, 2012, p. 1). That amendment also states “Every person has
equivalent protection under the law. No state is authorized to pass any law that would take any
rights of a citizen away” (Roland, 2000, p. 1).
This judicial decision was made after a group of parents of Puerto Rican students
presented a class action lawsuit against the Patchogue-Medford School District alleging the
school district denied the students an equal educational opportunity by not providing academic
instruction in Spanish (Lyons, 1992, p. 18). This group of parents considered that the
Transitional Bilingual Program was basically a course in English and it did not take into
consideration the native language of the students. The Supreme Court emphatically stated that
“A denial of educational opportunities to a child in the first years of schooling is not justified by
demonstrating that the educational program employed will teach the child English sooner than a
program comprised of more extensive Spanish instruction” (Lyons, 1995, p. 19). It further stated
“while the district’s goal of teaching Hispanic children the English language is certainly proper,
it cannot be allowed to compromise a student’s right to meaningful education before proficiency
in English is obtained.” (Salina-Sara, 1995, p. 36)
The Court identified some deficiencies in the bilingual program implementation that
indicated there was inadequate training in bilingual education of supervisors and teachers who
did not speak Spanish and were not familiar with the ESL program. The Court also pointed to a
lack of appropriate testing and monitoring of English Language Learners. Finally, the Court
directed the Pastchogue-Medford School District to submit a plan in compliance with the Lau
This case has had a significant impact on education and language-minority students. As a
result of this case, bilingual teachers must receive formal training in bilingual education. It is
extremely important for the educational system to provide English Language Learners with an
effective bilingual program which can offer the students with an opportunity to learn English, as
well as the content area instruction in their native language. As stated by Ovando and Combs
(2012), it is expected that teachers have the ability to communicate with the students in order to
provide understandable instruction. In fact, “a bilingual program must include native language
instruction by knowledgeable faculty” (as cited in Moses, 2002, p. 49). Thus, teachers assigned
to bilingual classrooms need to have the necessary bilingual skills to meet the needs of English
Language Learners.
Court cases like Rios versus Read have mandated a more adequate education for
language-minority students. They also established clear standards for implementing and
developing bilingual programs that ensure that the mere existence of bilingual programs is not
sufficient in order to provide an adequate education to English Language Learners (Ovando &
Combs, 2012, p. 66). Thus, schools must take “appropriate action to overcome language barriers
that impede equal participation by its students in its instructional program” (as cited in Moses,
Since the Court issued the ruling, the Rios versus Read case has established the basis for
the implementation of bilingual programs founded later in the 1980s and beyond (Rosado, 2010).
It also identified the need to provide minority language students with “ESL and bilingual
instruction by competent bilingual personnel” (Ovando & Combs, 2012, p. 66). This case had a
major effect, recognizing the instructional needs of language minority students while
guaranteeing the integrity of their educational content and environment.
Gonzales, F (1995). Federal statutes and directives regarding national origin students (p 36). . In
Technical Assistance Module: National Origin Desegregtion. San Antonio, Texas.
Intercultuiral Development Research Association
Lyons, J. (1992). The Mid-Atlantic Equity Center. Legal Responsibilities of Education Agencies
Serving National Origin Language Minority Students. Retrieved from
Moses, M. (2002). Embracing Race: Why We Need Race-conscious Education Policy. Retrieved
Ovando, C. & Combs, M. (2012). Bilingual and ESL classrooms: Teaching in multicultural
contexts (5th ed.). New York, NY: McGraw-Hill.
Roland, J. (2000). Intent of the Fourteenth Amendment was to Protect All Rights. Retrieved from
Rosado, L. (2010). PRAXIS II: English to Speakers of Other Languages. Retrieved from
Stetson Law. (n.d.). Eleazer Courtroom [Photograph]. Retrieved from
U.S. Department of Education (2012). Title VI Enforcement Highlights. Retrieved from
In 1978, parents of Mexican-American students filed a class-action lawsuit entitled
Castañeda v. Pickard (1981) against the southern Texas Raymondville Public School District
because of “instructional practices that violated their children’s rights” (San Francisco Unified
School District [SFUSD], n.d., para. 2). They stated that their rights upheld by the Fourteenth
Amendment and 42 U.S.C. (1976), Title VI of the Civil Rights Act (1964), and the Equal
Educational Opportunities Act (1974) had been violated (U.S. Court of Appeals, Fifth Circuit,
1981, para. 1). Evidence of these violations included tracking a student’s abilities based on
discriminatory criteria which resulted in segregating Hispanic students, discriminating against
people of Mexican-American descent while recruiting and hiring school personnel, and not
providing adequate instruction for the students to overcome the English language barrier
(SFUSD, para. 2). When the parents won the case, the court required that action be taken to
determine if the school district had also discriminated against Mexican-Americans in the past. If
discrimination was also practiced before, the school district was to see if any past discrimination
had been “fully erased” (U.S. Court of Appeals, n. 14, para. 3). Also, the court announced that
“an effective language remediation program is essential to the education of many students” in the
area, thus opening the door to measuring the quality of language programs. The school district
was required to establish a program “based on an educational theory recognized by … experts in
the field” and to have available appropriate resources (U.S. Department of Education Office for
Civil Rights Programs for English Language Learners, para. 3). Additionally, the court ordered
the schools to secure a sufficient number of qualified teachers to implement a viable program
(Mora, 2009, para. 4).
Castañeda et al did not require that a bilingual education program for English Language
Learners be put in place. They simply required that “appropriate action to overcome language
barriers” be put into place (Moramodules, n.d., para. 3). Yet this legal decree of expanded rights
established and ensured safety measures so that quality standards for language education and
their environment extended beyond overall discrimination, valid testing of abilities, and
appropriate education in second language learning. The Fifth Circuit Court of Appeals
formulated a test to determine school district compliance with the Equal Educational
Opportunities Act (1974). The three-part test includes the following criteria:
Theory: The school must pursue a program based on an educational theory
recognized as sound or at least, as a legitimate experimental strategy.
Practice: The school must actually implement the program with instructional
practices, resources and personnel necessary to transfer theory to reality.
Results: The school must not persist in a program that fails to produce results
(Laws and Court Cases Related to National Origin Equity aAnd Desegregation, n.d., para. 18).
Crawford (1999) recorded that the school district was also evaluated “to assess if it is
effective … for math, science, social studies, and language arts” (as cited in Ovando and Combs,
2012, p. 81). Valencia (2010) stated that its effects are still felt; the Castañeda v. Pickard
judgment has “emerged as the Castañeda standard” (p. 191).
What have been the long-term implications because of the Castañeda v. Pickard case?
Two year later, in Colorado the Keyes v. School District #1 (1983) case was filed and then won
as a follow-up lawsuit by protesting that the majority of the Castañeda v. Pickard case
requirements had not been met in their district. The Keyes case, holding school districts
accountable, prompted the court to order more requirements with greater specificity to overcome
language barriers (Ovando and Combs, 2012, p. 406). Additionally, these new quality standards
for bilingual education were enforced by requiring the school to increase its number of bilingual
teachers, to improve its measurement standards for secondary language, to provide sufficient
professional development for its bilingual teachers, and to complete evaluations regarding the
effectiveness of the school’s bilingual program (p. 82).
Castañeda v. Pickard has been a legal platform for court cases that followed it. According
to Ovando and Combs (2012), the verdict reached for the Castañeda v. Pickard case served as a
major legal foundation for the Lau v. Nichols (1974) Supreme Court case (p. 81). The instituta
actione of Castañeda v. Pickard became even more far reaching. In the United States v. Texas
(1982) case, requirements were extended beyond local school districts to the whole state school
system (Valencia, 2010, p. 192). To ensure enforcement of quality bilingual education, the court
for the Gómez v. Illinois State Board of Education (1987) case declared that state education
agencies along with the schools must be accountable for the quality of their bilingual educational
programs (Ovando and Combs, 2012, p. 82).
According to SFUSD regarding the Castañeda v. Pickard case’s continued influence, this
standard “still provides… important criteria for determining a school’s degree of compliance
with the Equal Educational Opportunity Act of 1974” (SFUSD, para. 1). It is, to quote Lyons,
“perhaps the most significant court decision affecting language minority education after Lau” (as
cited in Ovando and Combs, 2012, p. 81).
Castañeda v. Pickard, 648 U. S. 989 (1981). Laws and court cases related to national origin
equity and desegregation. (n.d.). Intercultural Development Research Association.
Retrieved from
Mora, J. M. (2009, April). From the ballot box to the classroom. Association for supervision and
curriculum development (ASCD). 66(7), 14––19. Retrieved from
MoraModules, Enhancing academic achievement of bilingual learners (n.d.). Civil rights
language minority regulations 1980 in Legal history of bilingual education. Retrieved
from http://moramodules.com/Pages/HistoryBE.htm
Ovando, C. & Combs, M. (2012). Bilingual and ESL classrooms: Teaching in multicultural
contexts (5th ed.). New York, NY: McGraw-Hill.
San Francisco Unified School District (n.d.). Castañeda v. Pickard (Texas, 1981) in Basis for
English learner programs. Retrieved from http://www.sfusd.edu/en/programs/englishlanguage-learners/basis-for-english-learner-programs.html
U.S. Department of Education Office for Civil Rights Programs for English Language Learners,
Part IV. (n.d.) In Glossary. Retrieved from
Valencia, R. (2010). Chicano students and the courts: The Mexican American legal struggle for
educational equality. New York, NY: University Press. Retrieved from
In 1981, the Mexican American Legal Defense and Educational Fund (MALDEF)
petitioned the state of Texas on behalf of the G.I. Forum and the League of United Latin
American Citizens (LULAC). MALDEF attested that the state school system was discriminatory
toward Latinos and was not providing equal educational opportunities for students of limited
English proficiency (LEP). The petition was filed as a subsidiary of the 1970 ruling of the
United States v. The State of Texas, heard by U.S. District Court Judge William Wayne Justice.
In the United States v. The State of Texas (1970), discrimination toward black children was
alleged through segregation by separate and unequal schools. Judge Justice found the Texas
Education Agency (TEA) to be in violation of Title VI of the Civil Rights Act of 1964, which
prohibits discrimination based on race, color, or national origin. TEA was also found to be in
violation of the Fourteenth Amendment to the United States Constitution, which guarantees
equal protection under the law. Justice ordered the desegregation of black and white students in
Texas public schools, on order which originally affected over 2.5 million children. He retained
jurisdiction of the matter throughout his lifetime. As to what followed in the coming years,
Kemerer (2010) of the Texas State Historical association (TSHA) reported:
The decision was the first of a string of highly controversial reform rulings Judge Justice
handed down in the 1970s and 1980s that dramatically changed Texas public institutions,
including state reform schools, facilities for the mentally retarded, and state prisons.” (para1).
In the time period between 1970 and 1981, several additional changes and rulings took
place with regard to LEP students. In 1973, the then Texas governor, Dolph Briscoe, signed the
Bilingual Education and Training Act (S.B. 121). This act overturned previous mandates in the
state of Texas dating back to 1918, which had stated that all public school instruction must be
given in English only. Then in 1974, it was ruled in Lau v. Nichols that schools in San Francisco
were not providing adequate accommodation for LEP students. The schools were ordered to
provide LEP children with assistance in overcoming their language barriers to learning. The
mandate did not provide any specific action or procedure to be implemented, but mandated only
that all children must have fair access to the same curriculum.
Additionally in 1974,
modifications were made to the Title VII Bilingual Education Act, ensuring all LEP students
were eligible for bilingual education programs. Another landmark piece of legislation came into
effect the same year. The Equal Educational Opportunity Act made clear that educational
institutions would be held responsible for assisting students in overcoming language barriers in
order for them to have full access to an equal education.
When the United States v. The State of Texas was revisited in1981, Judge Justice ruled
that the state of Texas had failed to adequately assist LEP students under the Equal Educational
Opportunities Act (EEOA). Up until this time, Mexican-American children had often spent two
to three years in first grade in order to learn English (Rodriguez, 2010, para 2). According to
Rodriguez (2010) of the TSHA, “The case United States v. Texas (1981) affirmed 'pervasive,
intentional discrimination throughout most of this century' against Mexican-American students”
(para 2). However, while this case was being litigated, Texas was in process of instituting a new
public school ESL program throughout all grade levels, and the case was considered moot until
the new programs had been given time to produce effect (Court Listener, n.d., para 60-66).
It was not until 25 years later, in 2006, that MALDEF and Multicultural Education
Training and Advocacy (META), Inc. filed a motion to revisit the case, claiming that the
oversight of the programs was faulty (MALDEF, 2009, para 2). The court ruled against them.
One year later, MALDEF and META again asked the court to revisit the case. As stated by
MALDEF (2009), “Judge Justice vacated his earlier ruling in its entirety, finding that
"secondary…students in bilingual education fail terribly under every metric" (para 3). Texas
schools were ordered to implement a language program for LEP students and a monitoring
system that would meet federal EEOA requirements. MALDEF (2010) listed the violations as
stated by Judge Justice as the following: under-identification of LEP students, arbitrary
achievement standards, and unqualified monitors which resulted in the “blind leading the blind,”
and accused the Texas school system of allowing successful elementary schools programs to
mask failing programs in secondary school (para3). The state of Texas was given until the
beginning of the 2009-2010 school year to put these programs into place.
In summation, since 1981, tremendous gains in civil rights have been made for foreignborn children enrolled in school systems in Texas.
Comfort Audio. (n.d.). Enjoying a Career [Photograph]. Retrieved from
Court Listener. (n.d.). United States of America, and Mexican American Legal Defense Fund,
Lulac and G. I. Forum, Plaintiffs-Intervenors-Appellees v. State of Texas. Retrieved
from https://www.courtlistener.com/ca5/35q6/united-states-of-america-and-mexicanamerican-lega/
Kemerer, F. R. (2010, June 15). United States v. Texas. Handbook Of Texas Online.
Texas State Historical Association. Retrieved from
MALDEF. (2010). US, GI Forum and LULAC v. Texas (US v. Texas), Summary of the Language
Rights Section of the Fifth Circuit Court of Appeals’ Decision. Retrieved from
MALDEF. (2009) MALDEF secures landmark education victory in Texas. Retrieved from
Rodríguez, R. (2010, June 12). Bilingual Education. Handbook of Texas Online. Texas
State Historical Association. Retrieved from
All students, including those with limited English proficiency (LEP) and those with other
special educational needs, have rights guaranteed under the U.S. Constitution, federal legislation
and decisions handed down by the U.S. Supreme Court. As Multicultural Education, Training
and Advocacy, Inc (META) stated, all students have a right to freedom from discrimination, the
right to education programs responsive to their language needs, the right to protection under the
law, and the right to special education testing and programs (as cited by State of Vermont, 1991,
p.1). In order to provide these guaranteed opportunities, accommodations must be made to serve
special needs of students. Ovando and Combs (2012) summarized the point, “Both bilingual
education and special education are interventions aimed at improving educational services to
students whose needs have not been met by traditional methods of providing universal public
education” (p. 369).
The challenges in educating LEP students and students of other special needs begin in
correctly identifying them. Students of LEP have been heavily overrepresented and also
underrepresented in special education programs throughout the United States. Kruder wrote,
“Research shows there is an overlap in the types of errors made by ELL students and students
with learning disabilities” (as cited by the National Education Association [NEA], 2007, p. 1).
LEP students and traditional special needs children both often fall behind their peers, but for
different reasons. The reasons need to be determined and addressed appropriately in order for
the student to attain academic success. Artiles and Ortiz (2002) stressed, “Before assessing a
child for special education, first assess the instructional program” (p. 1)
Tharp, Estrada, Dalton and Yamauchi put forth five standards for effective pedagogy for
all students, but which are especially critical for students of diverse ethnic and linguistic
backgrounds. In summary, these are: joint productive activities between teacher and students,
cross-curriculum language and literacy development, development of meaning within context of
students' lives, challenging students with complex thinking activities, and engaging students in
meaningful dialogue (as cited by NEA, 2007, p. 2). In review, once teachers suspect a student
may be in need of special education classes, the teacher needs to assess the academic program
and make sure that these five standards are being implemented.
The federal Department of Education (n.d.) dictated in its inclusion requirements for Title
I that LEP students need to be assessed to extents practical “in the language and form most likely
to yield accurate and reliable information on what such students know and can do, to determine
such students' mastery of skills in subjects other than English” (para 1, iii). This has not always
been the case. For example, Mercer found that the state of California was testing MexicanAmericans using standardized IQ tests in English (prior to 1973) and then placing many students
who tested poorly into education classes for the mentally handicapped (as cited by Ovando &
Combs, 2011, p. 369). Research shows that early intervention is most effective in turning around
student progress with regard to students who are falling behind their peers; so timely notice,
assessment, and intervention are crucial for student success.
Identifying an LEP student with other special needs can be challenging for teachers. The
NEA (2007) listed five conditions teachers should look for: an LEP student's rate of progress
below that of other LEP students, a history of developmental or academic problems with
instruction in the native language, a significant delay in adaptive skills, difficulty responding to
verbal cues, and not mastering material presented with instruction differentiation (p.2).
Historically, LEP students have been overrepresented in special education classes due to simply
not being able to keep up with native English-speaking peers and underrepresented due to the
assumption that all academic problems are related to language inadequacies. An interesting note
mentioned by Artiles and Ortiz (2002) is that LEP students who do not receive any instruction in
their native language are almost three times more likely to be in special education classes as
opposed to those who receive some native language instruction (p. 1).
In conclusion, LEP students have a very difficult time keeping up with their peers who
have begun learning the language of instruction since birth. LEP students are in a fragile
academic position and need as much help from teachers and outside sources as they can get.
Teachers need to be trained to be aware of nuances between LEP students who may have greater
English language deficiencies than other LEP students and LEP students with further special
Artiles, A. J. & Ortiz, A. A. (2002). English language learners and special education: A
summary of
English language learners with special education needs. Center for
Applied Linguistics.
Idaho State Department of Education. (n.d.). Title III/LEP [Photograph]. Retrieved from
National Education Association. (2007, December). Focus on Hispanics: Special education and
English language learners. Washington DC: NEA Human and Civil Rights.
Ovando, C., & Combs, M. (2012). Bilingual and ESL classrooms (5th ed). New
York, NY: McGraw Hill.
State of Vermont, Department of Education. (1991). Legal requirements for serving students
With limited English proficiency. Retrieved from
U.S. Department of Education. (n.d.) Summary Guidance on the Inclusion Requirement for Title
I Final Assessments. Retrieved from http://www2.ed.gov/policy/elsec/guid/inclusion
PLYLER versus DOE (1982)
In June 1982, the Supreme Court ruled that states were prohibited from denying students
a free public education on account of their immigration status. Its decision in this landmark case
was based on the Fourteenth Amendment of the United States Constitution which states in
section 1, “No State shall make or enforce any law … to deny to any person within its
jurisdiction the equal protection of the laws” (Authenticated U.S. Government Information GPO,
2002). This decision was made after a group of parents of undocumented Mexican students
presented a class action lawsuit to abolish the 1975 law of the state of Texas which authorized
school districts to deny enrollment in public schools to those students who were not legally
admitted into the United States (Immigration Policy Center, 2012). The Supreme Court
emphatically declared that states were not allowed to impose immigration laws. It also said that
any undocumented children had the right to receive equal access to education and should not be
treated disparately (Intercultural Development Research Association, n.d.).
As stated by Ovando and Combs (2012), schools may not deny admission to school to
undocumented children or require documentation that might expose their immigration status.
Students and their families will only need to prove that they live within the school district
attendance area. Additionally, families could only be asked to provide information regarding
their legal status or date of arrival into the United States voluntarily. Such information is needed
to identify their eligibility for federal funding programs defined by the Emergency Immigration
Act or the Transition Program for Refugee Children (pp. 82-83).
As a result of the Plyler Act, all students, including undocumented immigrant children,
are required by law to attend school through the age limits mandated by their state (State of
Washington Public Schools, n.d.). To protect the right of education for immigrant children, in
addition to schools not being allowed to prevent entry into the schools, the Plyler v. Doe Act by
law prohibits schools inquiring about a student’s immigration status or that of the parents,
preventing a student from a free or reduced school lunch program because guardians do not have
a social security number, requiring students to apply for social security numbers, or initiating
communication or cooperating with the U.S. Immigration and Naturalization Service (INS) in a
way that could jeopardize students’ right of access (American Patrol, n.d.). If the INS requests
information, the school can only supply this information if the INS request is accompanied by a
valid subpoena. The school and all personnel are advised to check with an attorney to determine
a subpoena’s validity (American Patrol, n.d.).
What has been the effect of the 1982 Plyler v. Doe Act? With the exception of two state
cases, of Arizona and of Alabama, the federal Act has been recognized throughout the nation for
almost a 30-year period (Durbin, 2012). According to Assistant Attorney General Perez in his
2012 U.S. Justice Department report, “countless children have benefited from the Plyler
decision, receiving an education and with it, a chance at a better life. Indeed, throughout this
country, we see the promise of Plyler borne out. We see young people graduating from high
school and reaping many of the benefits that come with a high school diploma” (The U.S.
Department of Justice).
The first major case contesting the Plyler case was the 2012 Arizona v. The United States
case. The strength of almost all of the Plyler requirements was upheld. The second major case
defying the Plyler Act was 2011 Alabama HB56 state law, finally overruled in 2013, which,
among other restrictions, required schools to check the legal status of students arriving at schools
and to comply with law officials by treating it as a legal criminal offense if a noncitizen did not
carry alien registration documentation with him or her (Migration Policy Institute, 2013).
Without the enforcement of the Plyler v. Doe Act, during the interim period before the ruling,
especially in Alabama, the effects were chilling. Senator Durbin reflects on this period.
Speaking of Assistant Attorney General Perez, Durbin recorded, “Mr. Perez said the Justice
Department has concluded that ‘in the immediate aftermath of [H.B. 56's] implementation,
Hispanic student absence rates tripled, while absence rates for other groups of students remained
virtually flat’ and ‘the rate of total withdrawals of Hispanic children substantially increased to
13.4 percent of all Hispanic students in Alabama schools’” (Durbin, 2012).
During the Plyler v. Doe case, Justice Brennan made a statement about immigrants.
“Already disadvantaged as a result of poverty, lack of English-speaking ability, and undeniable
racial prejudices…, will become permanently locked into the lowest socio-economic class”
(Cornell University Law School, n.d.). After 30 years, the Plyler v Doe Act continues to ensure
that all children, whatever their immigration status, receive an education from kindergarten
through high school. However, the educational prospects for those students who are
undocumented after graduation from high school is not at all ensured under US law. According
to Unmuth (2011), “their status locks them into low-wage work cleaning houses or doing
construction. ‘It’s very frustrating,’ Dallas superintendent Michael Hinojosa said. ‘We inspired
them to go to college, and the irony is that now they cannot go to work legally’” (para. 57).
American Patrol Report (n.d.) Plyler vs. Doe 1982-A summary. Retrieved from
Authenticated U.S. Government Information GPO. (2002). Fourteenth Amendment.
Retrieved from http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/
Cornell University Law School. (n.d.). Plyler v. Doe, Brennan, J., Opinion of the court. Ithaca,
NY: Author. Retrieved from http://www.law.cornell.edu/supremecourt/text/457/202#
Debate. (2013). Is Education a Basic Human Right? [Photograph]. Retrieved from
Durbin, Dick (2012, June). Building on the legacy of Plyler v. Doe. [video]. Retrieved from
Immigration Policy Center. (2012, June 15). Public Education for Immigrant Students: States
Challenge Supreme Court’s Decision in Plyler v. Doe. Retrieved from
Intercultural Development Research Association. (n.d.). Laws and Court Cases Related to
National Origin Equity and Desegregation. Retrieved from
Migration Policy Institute. (2013, November 14). Alabama settlement marks near end of a
chapter in state immigration enforcement activism by Chihti, M. & Hipsman, F.
Retrieved from http://www.migrationinformation.org/USfocus/display.cfm?id=972
Ovando, C., & Combs, M. (2012). Bilingual and ESL classrooms (5th ed.). New York, NY:
McGraw Hill.
State of Washington Office of Superintendent of Public Instruction (n.d.). Migrant and Bilingual
Education: Immigrants Students’ Right to Attend Public Schools
The U.S. Department of Justice (2012, June 11). Assistant Attorney General Thomas E. Perez
Speaks at the American Civil Liberties Union’s Plyler v. Doe 30th Anniversary Event.
Retrieved from http://www.justice.gov/crt/opa/pr/speeches/2012/crt-speech-120611
Unmuth, K. (2011, May 10). U.S. Department of Education sternly reminds districts that
illegal immigrant children are entitled to a free public education. The Dallas
Morning News. Retrieved from http://irvingblog.dallasnews.com/2011/05/usdepartment-of-education-ste.html/
Assistant Attorney General Perez (2012), in reference to the Plyler decision and speaking
of the effects of newly established educational rights of language minority students, declared,
“Countless children have benefited from [the legal] decision, receiving an education and with it,
a chance at a better life” (para. 8). Many changes have taken place over the course of the last 50
years, beginning with the Title VI Civil Rights Act of 1964 and continuing through Race to the
Top of 2009 with its ongoing 2014 application. Language minority children have benefited.
No longer is discrimination by race, color, or national origin tolerated in federally funded
programs. Language minority children are now guaranteed an equal opportunity education, and
the Office of Civil Rights has the authority to enforce these rights.
Legal reformation regarding language minority children has continued. All school-aged
children in the United States, regardless of legal status or documentation, have a right to a free,
quality education. This includes the teaching of core subjects in the students’ primary language
as needed and school testing appropriate to the students’ language skills, with evaluations being
offered in the first language if necessary. It ensures that adequate resources are available for
minority language children and that the schools provide an appropriate program based on sound
educational practices and theory in order to learn English and to learn core subjects (San
Francisco Unified School District, n.d., pp. 1–4).
The U.S. Census report (2008) revealed that minority language children comprise 20% of
students between the ages of five and 17 years (as cited in Hsu, 2013, p. 3). More trained
teachers of LEP students are needed. As Haskins and Tienda noted, “… a national survey
showed that in 2000, 41% of all U.S. teachers instructed English learners, but only 13% of
teachers had received any specialized training in effective methods for teaching students who are
not proficient in English” (p. 4).
Throughout the last 50 years, dual language programs, in which both native English
speakers and minority language students actively participate, have shown promising results.
Baker (2001) found that dual language programs “lead to enhanced creativity and analytical
thinking” and “accelerated … instruction” (as cited in Thomas & Collier, 2003, para. 2). Shields
and Behrman (2004) concluded, “Federal, state, and local education agencies should encourage
bilingualism for all students—enabling children of immigrants to maintain ties with their
heritage, and enabling children of U.S. born families to be better prepared for life and work in a
global society” (p. 6).
We hope this handbook will prove useful to all those all interested in learning more about
the programs and legal cases that impact education for English Language Learners.
Bunk Class. (2010, November 12). Child Labour and Complete Education Policy in India
[Photograph]. Retrieved from http://bunkclass.blogspot.com/2010_11_07_archive.html
Haskins, R. & Tienda, M. (2001, Spring). The future of immigrant children. PrincetonBrookings. Retrieved from
Hsu, C. (2013). Policy brief: Define accountability for dual language education. Retrieved from
Perez, T. E. (2012, June 11) Assistant Attorney General Thomas E. Perez speaks at the American
Civil Liberties Union’s Plyler v. Doe 30th anniversary event. Washington DC. Retrieved
from http://www.justice.gov/crt/opa/pr/speeches/2012/crt-speech-120611.html
Roosevelt University. (2014). Early Childhood Education [Photograph]. Retrieved from
San Francisco Unified School District (n.d.). Chronology of federal and state law & policy
impacting language minority students. Retrieved from
Shields, M. K. & Behrman, R. E. (2004, Summer). Children of immigrant families: Analysis and
recommendations. The Future of Immigrant Children. 14(2), 1–9. Retrieved from
Thomas, W. P. & Collier, V. P. (2003, October). The multiple benefits of dual language.
Educational Leadership: Teaching All Students. 61(2), 61-64. Retrieved from
University of California. (2012). Pre-Law in Philosophy [Photograph]. Retrieved from

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