Legal Evolution of Bilingual Education: Key Points

1. Legal Evolution of Bilingual Education: Key Points CLAD Applied Methods: A January 28, 2004 Ingrid Salamanca

2. “Bilingual-bicultural education is like an impressionist painting-very attractive from a distance but unclear and confusing when one gets very close to it” (civil rights consultant Gary Orfield, written 1977)

3. Bilingual Education Act

4. 1968 Bilingual Education Act • Late 1960s: NEA’s pamphlet on the plight of Mexican American increased attention for Hispanics who have been passed over by antipoverty legislation.“The Invisible Minority, Pero No Vencibles” depicted the educational neglect Hispanic children faced such as inadequate facilities, a lack of trained teachers and aides, and the scandal of ‘sink or swim’ schooling. • 1967-1968: Thirty-seven bilingual education bills were introduced in the 90th Congress.

5. 1968 Bilingual Education Act • Title VII of the Elementary and Secondary Act authorized resources to support educational programs, to train teachers and aides, to develop and disseminate instructional materials, and to encourage parental involvement. • The focus of the law was compensatory, aimed at children who were both poor and “educationally disadvantaged because of their inability to speak English” (Crawford, 1995, p. 40).

6. Contrasting views regarding the purpose of the Bilingual Education Act • Many of the key players “agreed that the law was conceived as an experiment not in language policy but in education policy, designed to tackle a problem of underachievement in which language happened to play a role” (Crawford, 2002,p.111) • “It must be remembered that the ultimate goal of bilingual education is a student who functions well in two languages on any occasion.” (1971 instructions for Title VII grant applicants).

7. Civil Rights • 1970: La Raza Unida Party, a militant Chicano group, organized school boycotts to protest the unequal treatment of Spanish-speaking students in Crystal City Texas. Lawsuits by Mexican American, Puerto Rican, and Chinese parents began to file lawsuits challenging the schools failure to address their children's language needs. • Claim of discrimination: equal treatment for children of limited English proficiency- “submersion” meant unequal opportunities to succeed.

8. Civil Rights • Civil Rights Act of 1964 prohibited discrimination on the basis of national organization, but in education federal authorities concentrated on Southern blacks. • Office of Civil Rights (OCR) on May 25, 1970 sent a memo to districts notifying school districts of their obligations under Title VI of the Civil Rights Act which outlaws discrimination in federally supported programs.

9. 1974 Lau v. Nichols • Major court ruling on the rights of language minority students and the ONLY such ruling by the U.S. Supreme Court. • San Francisco: Class action lawsuit filed on behalf of Kinney Lau and 1,789 other Chinese students who were failing/faltering in school because they did not understand the language of instruction. • Plaintiffs contend that they were being denied “education on equal terms” (court’s standard in Brown v. Board of Education) because of their limited English skills.

10. Lau v. Nichols

11. Lau v. Nichols • Defendants response: unlike the 1954 Brown case, there was no discrimination in Lau because the same instruction was offered to all students. • Federal districts and appeals court sided with the school district. However, in a strong dissent Judge Shirley Hufstedler of the Ninth Circuit dismissed the school district’s premise as irrelevant. Her logic was later embraced by the U.S. Supreme Court who unanimously overruled the lower courts in 1974.

12. “These Chinese children are not separated from their English-speaking classmates by state-erected walls of brick and mortar, but the language barrier, which the state helps to maintain, insulates the children from their classmates as effectively as any physical bulwarks. Indeed, these children are more isolated from equal educational opportunity than were those physically segregated Blacks in Brown, these children cannot communicate at all with their classmates or teachers…Invidious discrimination is not washed away because the able bodied and the paraplegic are given the same state command to walk” (excerpt from Judge Hufstedler’s dissent).

13. Lau v. Nichols (Supreme Court Opinion) • “There is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education” (Justice William O’ Douglas). • Court stated under Title VI of the Civil Rights Act, the Chinese-speaking children were entitled to special assistance to enable them to participate equally in the school program.

14. Lau v. Nichols (Supreme Court Opinion) • In a preface to his opinion, Justice O’ Douglas wrote: “No specific remedy is urged upon us. Teaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instructions to this group in Chinese is another. There may be others. Petitioners ask only that the Board of Education be directed to apply its expertise to the problem and rectify the situation.”

15. Lau Remedies • 1975: OCR made visits to 334 school districts with large numbers of language-minority students. “Most [districts had] utterly failed to meet their responsibilities” (David Tatel, director of OCR in the Carter administration). • August 11, 1975: U.S. Commissioner of Education Terrel Bell announced the following: guidelines how to identify and evaluate children with limited English skills, appropriate instructional treatments, “when children are ready for mainstream classrooms, and what professional standards teachers should meet”

16. Lau Remedies • Remedies went beyond Lau by requiring that “where children’s rights had been violated, districts must provide bilingual education for elementary school students who spoke little English” (Crawford, 1995, p. 46) • “‘English as a second language’ is a necessary component of bilingual instruction, but ‘since an ESL program does not consider the affective nor cognitive development of the students…an ESL program [by itself] is not appropriate’” (Crawford, 1995, p. 46)

17. Discussion Point • Lau has brought to the forefront such terms as “equal educational opportunity, equal treatment, equality of treatment, education on equal terms, and equal access.” • Consider the following points in your groups: • What is equal access? • How do you provide equal access to the core curriculum within your classroom setting? • List 3 things you do to provide “equal access”. • What can you do to improve “equal access” in your classroom?

18. Castañeda Standard

19. 1981 Castañeda v. Pickard • Section 1703f of the Equal Educational Opportunities Act (EEOA) of 1974 requires school districts to take “appropriate action to overcome language barriers that impede equal participation by its student in its instructional programs.” • Fifth Circuit Court of Appeals relied on the EEOA to mandate special language assistance. In passing this law, “Congress had thrown it’s weight behind Lau, affirming that educational neglect violated the civil right of language-minority children…” (Crawford, 1995, p. 58)

20. Castañeda v. Pickard • Appellate court acknowledged that “good faith efforts” did not exempt school districts of their responsibilities. The court outlined three criteria for a program serving students with limited English skills. • It must be based on “a sound educational theory” • It must be “implemented effectively” with adequate resources and personnel • After a trial period, it must be evaluated as effective in overcoming language handicaps

21. Proposition 227

22. PROP 227 • June 22, 1998: passed by a vote of 61% in favor to 39% opposed. • “English for the Children” initiative: reverses policies set in place by Governor Reagan in 1967 that allowed bilingual instruction as an option for providing equal access to the curriculum. • A petition for an injunction was filed the following day by the Mexican American Legal Defense and Education Fund (MALDEF) and other civil rights groups.

23. PROP 227 • July 15, 1998: federal district court in San Francisco denied injunction. • August 3, 1998: Prop 227 became law in California.

24. Goals of PROP 227 • “To teach English as rapidly & effectively as possible by heavily exposing LEP children to the language.” • “To reduce drop-out rates among immigrants.” • “To reverse low literacy rates and to promote economic & social advancement.” (Jill Mora, San Diego State University)

25. Restrictions on Bilingual Instruction • 20 parents at one grade level at a school must secure “waivers” • Instruction may be provided on a year-by-year waiver basis at school districts discretion • No established on-going bilingual program

26. Parent Exception Waivers • Required: One year of “Sheltered English Immersion.” • After 30 days of instruction, parents may “waive” to have their children placed in a bilingual program.

27. Discussion Point • As professionals in the post 227 era, consider the following: • What sort of administrative challenges might this present to the school districts? • What is the purpose: language or content objectives?

28. References • Crawford, J. (1995). Bilingual education: History, politics, theory and practice (pp.20-60). Los Angeles: Bilingual Education Services. • Crawford, J. (2000). Language politics in the United States: The paradox of bilingual education. In C. Ovando & P. McLaren (Eds.) The politics of multiculturalism and bilingual education: Students and teachers in the crossfire. (pp. 106-125). Boston: McGraw-Hill. • Mora, J.K. (1999). An analysis of the READ Institute Report: Proposition 227 Implementation in Five California School Districts. http://coe.sdsu.edu/people/jmora/READReport.htm

29. References • Mora, J.K. (2000). Proposition 227’s second anniversary: Triumph or travesty? http://coe.sdsu.edu/people/jmora/Prop227/227YearTwo.htm • Mora, J.K. (2000). Debunking English-only ideology: Bilingual educators are not the enemy. http://coe.sdsu.edu/people/jmora/Prop227/EngOnly.htm • Mora, J.K. (2000). An analysis of proposition 227. http://coe.sdsu.edu/people/jmora/Prop227/PPT/sld001.htm