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From: "Ken Taber" <kentaber@inetgenesis.com>
To: Multiple recipients of list <nifl-esl@literacy.nifl.gov>
Subject: [NIFL-ESL:9342] Legal History of LEP programs in US
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Dear Jillian & Joe et al
:
Your argument is not a new one in this country. In fact, the Department of
Education's Office of Civil Rights and the US Supreme Court and various
Appeal Courts and State Courts have already weighed in on the subject.
1964- Civil Rights Act
It begins with the Civil Rights Act of 1964 where it states that no person
in the US shall, on the basis of 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.
1970- OCR Memorandum [May 25, 1970] *Sent to all school districts with 5% or
more LEP enrollment
1-"Where inability to speak and understand the English Language excludes
national origin minority group children from effective participation in the
educational program offered by a school district, the district must take
affirmative steps to rectify the language deficiency in order to open its
instructional programs to these students."
2-"School districts must not assign national origin minority group students
to classes for the mentally retarded on the basis of criteria which
essentially measure or evaluate English Language skills: nor may school
districts deny national origin minority group children access to college
preparatory courses on a basis directly related to the failure of the school
system to inculcate English language skills."
3-"Any ability grouping or tracking system employed by the school system to
deal with special language skill needs of national origin minority group
children must be designed to meet such language skill needs as soon as
possible and must not operate as educational dead end or permanent track."
4-"School districts have the responsibility to adequately notify national
origin minority group parents of school activities which are called to the
attention of other parents Such notice in order to be adequate may have to
be provided in a language other than English."
1974- Lau v. Nichols
The full significance of the May 25, 1970 memorandum was realized four years
later when the United States Supreme Court ruled in Lau v. Nichols the only
decision ever of school districts for limited English proficient, national
origin minority students. Lau v. Nichols was a class action suit brought on
behalf of limited English proficient students of Chinese ancestry enrolled
in the 16, 500 pupil San Francisco Public School System. Of the 2,800
Chinese students, about 1,000 received supplemental instruction and 1,800
received no special instruction in violation of both the 14th Amendment and
Title VI of the Civil Rights Act of 1964. The lower courts argued that
Chinese students were provided the same education in English made available
on the same terms and conditions as the other SF students. The argument made
by the Chinese plaintiffs was that the school district's refusal to overcome
language deficiencies amounted to a "denial" of educational opportunity. The
lower courts rejected that claim saying that the school district did not
have a "duty" to do so. In 1974, however, the US Supreme court unanimously
rejected the lower Courts reasoning and overturned their decisions in Lau,
finding that a violation of the Chinese students' rights under Title VI was
sufficient, it did not consider their claim that their constitutional rights
under the 14th Amendment to equal protection under the law had been
violated. In fact, Justice Douglas cited the May 25, 1970 Memorandum
regarding national origin discrimination.
1974- Equal Educational Opportunities Act of 1974
Just weeks after the Lau decision, Congress adopted the EEOA as an amendment
to the Educational Amendments of 1974.
EEOA states:
"No state shall deny equal educational opportunity to an individual on
account of his or her race, color, sex, national origin, by......
(f) the failure of an educational agency to take appropriate action to
overcome language barriers that impede equal participation by its
instructional programs." However, the EEOA did not define "appropriate
action" and was silent on the issue of Bilingual Education leaving bilingual
education as voluntary and not mandatory. The ambiguity of this EEOA
provision led the courts to develop a powerful analytical framework for
determining whether or not an education agency is fulfilling its EEOA
responsibilities to LEP students in Castaneda v. Pickard.
The EEOA did provide that an individual denied equal education opportunity
may institute a civil action in an appropriate US District Court in the US
to seek relief. The Attorney General of the US may institute such a civil
action on behalf of such an individual.
1978- Guadalupe Organization v Tempe Elem. #3
The Courts in this case rejected the EEOA claim that "appropriate action"
need not include the "bilingual-bicultural" education that the appellates
seek. They claim that remedial instruction in English appears to comply with
Lau's mandate and that the remedial program did not operate as an
educational dead-end track.
1980- Notice of Proposed Rulemaking (Title VI)
The ambiguity about the legal status of the never published Lau Remedies was
noted. In 1980, the newly formed Department of Education published in the
Federal Register a Notice of Proposed Rulemaking (NPRM). It included
objective specifications for: the identification of LEP students; the
assessment if their English proficiency; the provision of proper
instructional services; criteria for governing exit from special
instructional programs. As one of the first public acts as Secretary of
Education in the newly-installed Reagan Administration, Terrell H. Bell
withdrew the 1980 NPRM on Feb. 1981 However, he did issues new policy
guidance beyond vowing: "We will protect the rights of children who do not
speak English well, but we will do so by permitting school districts to use
any way that has proven to be successful."
1981- Castaneda v. Pickard
The 5th Circuit Court of Appeals created a powerful analytical framework
for determining whether or not an educational agency is fulfilling its EEOA
responsibilities to take "appropriate action" on behalf of its
language-minority students. Castaneda has strongly affected subsequent Court
rulings under Title VI and the EEOA, as well as OCR's Title VI enforcement
policies and procedures. The Appeals Court argued that in EEOA, Congress
intended that schools do something and to impose the term "appropriate
action" rather than Bilingual Education indicates that Congress intended to
leave state and local governments a substantial amount of latitude in
choosing the programs and techniques to meet their obligations under the
EEOA. Then the court confronted the tougher question- what does "appropriate
action" mean?
The Court of Appeals then formulated the following three-part test to
measure compliance with the EEOA requirement of appropriate action:
(1) Theory: The Court's responsibility, insofar as educational theory is
concerned, is only to ascertain that a school system is pursuing a program
informed by an educational theory recognized as sound by some experts in the
field or, at least, deemed a legitimate experimental strategy.
(2) Practice: The Court's second inquiry would be whether the programs and
practices actually used by a school system are reasonable calculated to
implement effectively the educational theory adopted by the school. We do
not believe that it may fairly be said that a school system is taking
appropriate action to remedy language barriers if, despite the adoption of a
promising theory, the system fails to follow through with its practices,
resources, and personnel necessary to transform the theory into reality.
(3) Results: If a school's program, although premised on a legitimate
educational theory and implemented through the use of adequate techniques,
fails, after being employed for a period of time sufficient enough to plan a
legitimate trail, to produce results indicating that the language barriers
confronting students are actually being overcome, that program may, at that
point, may no longer constitute appropriate action as far as that school is
concerned. We do not believe Congress intended that under 1703(f) a school
would be free to persist in a policy which, although it may have been
"appropriate'" when adopted, in the sense that there were sound expectations
for success and bona fide efforts to make the program work, has, in
practice, proved to be a failure.
1989- The META Agreement
The Multicultural Educational Training Advocacy (META), Inc. along with 9
other agencies sued the states of California, Texas, and Florida. The META
agreement sets out legal guidelines for implementing ESOL programs in those
states. In Florida, it requires all elementary and secondary language arts
teachers to receive extensive ESOL training within the first 5 years of
their first LEP student. It also requires content area teachers to receive
some additional training. META claimed that each state's school system
lacked the appropriate standards, curriculum, and teacher training to give
their students a meaningful education. They also argued against the use of
an English-Only Approach of not allowing students and teachers to speak in
the student's first language.
1991- OCR Policy Update on Schools' Obligations Toward National Origin
Minority Students with Limited English Proficiency (see www.lep.gov )
When discussing the history of ESL programs this is the latest news until
the next lawsuit.
A. Must school districts use a particular type of program?
A. No. Districts may use any program that is recognized as sound by some
experts in the field or is considered a legitimate experimental strategy.
Examples of such programs include transitional bilingual education,
bilingual-bicultural education, structured immersion, developmental
bilingual education, and English as a Second Language.
In all these programs, the use of the students' primary language is
allowed.The only difference is in the percentage of time each program spends
using the students' primary language. The guidelines place staffing and
training requirements regardless of which program a school system adopts. If
a school system that used an English-Immersion approach and did not train
its teachers on Second-Language Acquisition strategies that would be
paramount to a dead-end approach, a sink or swim philosophy, and is
considered national origin discrimination under Title VI of the Civil
Rights Act of 1964 for not following OCR guidelines concerning LEP students.
To even call a program an English-Only Approach sends the wrong kind of
message that the program discriminates against those with a language
barrier. I still remember when politicians in Miami were talking this
English-Only non-sense. All you have to do is study the parts of the country
where politicians tried to win votes by alienated those who speak a
different language. It always backfires.
2001- Title III of the No Child Left Behind (NCLB) Act
NCLB has now made all states accountable for the ESOL programs. Some
states do not have much to worry about from Title III of the NCLB that deals
with Limited English Proficient Students because they have been the bell
weather states that have influenced these new mandates while it sends other
states into panic. Its too early what effect the bill will have on ESOL
programs but it does lay the foundation for the next lawsuit. Until then, we
wait. It is this panic that causes politicians to shout: "English-ONLY!!!
They may actually get a lot of local support until they have to make
their case in federal court.
2002- The Patriot Act
Since 9/11, we have changed the rules for immigrants. Before teachers
could not ask undocumented aliens for their green cards. The Patriot Act may
reverse the previous court decision under Plyler v. Doe (1982). It is
strange that we call it the Patriot Act as if to not support the Patriot Act
we would then be unpatriotic. This debate will probably be the next case
before the courts. Until then, we wait.
Sincerely,
Ken Taber
kentaber@inetgenesis.com
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