Federal And State Laws That Govern Essay

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There are numerous federal laws that influence current approaches in ELL instruction. However, the most common include the following five:

The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women. It also ended racial segregation in the United States. Most important, it ended racial segregation in schools and in facilities that served the general public ("public accommodations").

Once the Act was implemented, its effects were far-reaching on the country as a whole and had an immediate impact on the South. It prohibited discrimination in public facilities, in government, and in employment. Regarding education, it invalidated the Jim Crow laws in the southern U.S., thus, it became illegal to compel segregation of the races in all educational settings. (Minchin, 2008)

The Equal Educational Opportunity Act of 1974 is a federal law of the United States that prohibits discrimination against faculty, staff and students, including racial segregation of students, and requires school districts to take action to overcome barriers to students' equal participation.

Section 504 of the Rehabilitation Act of 1973 created and extended civil rights to people with disabilities. Section 504 has provided opportunities for children and adults with disabilities in education, employment and various other settings. It allows for reasonable accommodations such as special study area and assistance as necessary for each student.

Each Federal agency has its own set of section 504 regulations that apply to its own programs. Agencies that provide Federal financial assistance also have section 504 regulations covering entities that receive Federal aid. Requirements common to these regulations include reasonable accommodation for employees with disabilities; program accessibility; effective communication with people who have hearing or vision disabilities; and accessible new construction and alterations. (Guide to Disability Rights Laws)

The No Child Left Behind Act of 2001 (often abbreviated in print as NCLB or pronounced "nicklebee" is a United States Act of Congress that addresses the education of children in all 50 states. Many consider this an unconstitutional act because it violates the 9th and 10th Amendments of the U.S. Constitution.

NCLB supports standards-based education reform which is based on the belief that setting high standards and establishing measurable goals can improve individual outcomes in education. The Act requires states to develop assessments in basic skills to be given to all students in certain grades, if those states are to receive federal funding for schools. The Act does not assert a national achievement standard; standards are set by each individual state.

The May 25 Memorandum: To clarify a school district's responsibilities with respect to national-origin-minority children, the U.S. Department of Health, Education, and Welfare, on May 25, 1970, issued a policy statement stating, in part, that "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 the instructional program to the students."

There are various federal court cases that provide the legal requirements for determining a school district's compliance with state and/or federal guidelines. However, the most famous include the following four :

Lau v. Nichols, 1974 [Same does not mean equal]

In Lau v. Nichols 1974, the United States Supreme Court ruled that providing students the same desks, books, teachers, curriculum, etc., does not ensure that they receive an equal educational opportunity under the Civil Rights Act of 1964., particularly if the students do not speak English. If English is the language of instruction, then measures must be taken to ensure that English is taught to students who do not speak English or who are limited-English proficient in order to provide equal access to educational opportunities.

ELLs, in this case, were being given equal opportunity to education, but not equal access. In other words, the ELLs in question were not being given any instruction that would make their educational "opportunity" comprehensible ("meaningful"). The Court noted, "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, and therefore are effectively foreclosed from any education." Thus, this case required access to facilities, textbooks, teachers, and curriculum for ELLs.

Equal Educational Opportunity Act, 1974 [Equal education]

This act mandates that no state shall deny equal education opportunity to any individual, "by the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by students in an instructional program."

Castaneda v. Pickard, 1981 [Three-pronged standard for equal access]

On June 23, 1981, the Fifth Circuit Court issued a decision that is the seminal post-Lau decision concerning education of language minority students. The Fifth Circuit Court (Texas area) delineated a three-pronged standard for determining whether students who are limited English proficient have equal and meaningful access to a school district's program. A program for ELLs is acceptable if:

(1) the program is based on an educational theory recognized as sound by some experts in the field or is considered by experts as a legitimate experimental strategy; (2) the programs and practices, including resources and personnel, is reasonably calculated to implement this theory effectively; and (3) the school district evaluates its programs and make adjustments where needed to ensure language barriers are actually being overcome.

Plyler v. Doe, 1982 [Immigration status inquiry]

The Court stated that undocumented children have the same right to a free public education as U.S. citizens and permanent residents.

A.) School officials may not require students to prove they are in the United States legally,

B.) Schools should avoid any attempts to document students' status.

C.) The following school practices are prohibited.

* Barring access to a student on the basis of undocumented status.

* Treating students disparately for residency determination purposes on the basis of their undocumented status.

* Inquiring about a student's immigration status.

* Making inquiries to a student or his/her parent which may reveal their status.

* Federal education programs may ask for information from parents and students to determine if students are eligible for various programs. In such cases, schools should ask for voluntary information from parents.

There are a good many California state court cases that provide the legal requirements for determining a school district's compliance with state and/or federal guidelines. Here are three popular state court cases:

Diana vs. State Board of Education, CA 70 RFT (N.D. Cal. 1970)

Plaintiffs in Diana v. State Board of Education (1970), filed on behalf of Mexican American children in Monterey County, California, alleged that the school system was inaccurately identifying Spanish-speaking children as mentally retarded on the basis of IQ tests administered in English. The court ruled that non-English proficient children cannot be placed in Special Education on the basis of culturally biased tests or tests administered in English.

The Eliezer Williams, et al., vs. State of California, et al. (Williams) case was filed as a class action in 2000 in San Francisco County Superior Court. The plaintiffs include nearly 100 San Francisco County students, who filed suit against the State of California and state education agencies, including the California Department of Education (CDE). The basis of the lawsuit was that the agencies failed to provide public school students with equal access to instructional materials, safe and decent school facilities, and qualified teachers. 

The case was settled in 2004, resulting in the state allocating $138 million in additional funding for standards-aligned instructional materials for schools in the first and second ranks (known as deciles) determined through the 2003 Academic Performance Index  Base. The settlement includes another $50 million for implementation costs and other oversight-related activities for schools in deciles one through three (2003 API Base). These two amounts were included in the state budget (Outside Source) signed in July 2004 by Governor Schwarzenegger. Another $800 million will be provided for critical repair of facilities in future years for schools in deciles one through three (2003 API Base). 

Larry P. vs. Riles, 793 F. 2d 969 (1984).

Larry P. vs. Riles was a California class-action case that focused on IQ testing of young black children, and argued that those children had been inappropriately placed in Educable Mentally Retarded (EMR) classrooms solely on the basis of an IQ score. The case also argued that the IQ tests were culturally discriminatory against black children, as a disproportionate number of black children had been placed in EMR classrooms. The numbers were not representative of the general populations in those regions of California. The court held that IQ tests were culturally biased against black children and banned California school systems from using them when evaluating black children for special education, and required the use of a multi-faceted evaluation approach for them. The court went further by requiring record-keeping and data-collection systems so that schools could track the numbers of minority children in EMR classrooms and justify the presence of black children in those settings.

The Larry P. case established the legal precedent that tests administered to minority children must have been validated for use with that population (Valdés & Figueroa, 1994). Because Larry P. offered essentially the same protection to African American students as those afforded Mexican Americans in the Diana judgment, it provides the legal precedent against cultural bias in testing. 

There are recent California state laws that influence current approaches to ELL instruction. The most famous include the following three:


Requires all public school instruction be conducted in English.

Requirement may be waived if parents or guardian show that child already knows English, or has special needs, or would learn English faster through alternate instructional technique.

Provides initial short-term placement, not normally exceeding one year, in intensive sheltered English immersion programs for children not fluent in English.

Appropriates $50 million per year for ten years funding English instruction for individuals pledging to provide personal English tutoring to children in their community.

Permits enforcement suits by parents and guardians. 


Proposition 209 prohibits the state, local governments, districts, public universities, colleges, and schools, and other government instrumentalities from discriminating against or giving preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin.

When California voters passed Proposition 209 in 1996, many people thought that there would be few legal issues to follow in its wake. The essence of proposition 209 was simple:  no more racial and sex preference programs in public employment, education or contracting.  The measure was upheld by both the California Supreme Court (Hi-Voltage Wire Words, Inc. v City of San Jose, 24 Cal.4th 537 (2000)) and the Ninth Circuit (Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997)).

Chacon-Moscone Bilingual-Bicultural Education Act (1976).

This law mandated bilingual programs in California. Under it, districts are required to establish bilingual classrooms staffed by certified bilingual teachers if a school has ten or more LEP students at the same grade level, speaking the same primary language. Individualized services are required in cases where classrooms are not warranted by numbers, and at the secondary level. Provisions of the law also addressed parent involvement.

There are various ways how an ELL teacher can assist with designing an ELL program that will meet state guidelines. As a starting point, a teacher should first ask: "What are the English Language Proficiency Standards in California?" In California, there is the English Language Development Standards for California Public Schools (K-12). The English Language Development Standards for California Public Schools dictates how students move from a beginner to a fully fluent English speaker.

By following the English Language Development Standards for California Public Schools (K-12), a teacher can adequately advise the administration on how to design and implement an ESL program that meets state guidelines.

Another tool would be to follow the three-prong approach as can be seen in Castaneda vs. Pickard.

Most importantly, however, teachers and administrators must recognize the factors that could influence the design of their district's ESL/ELD/ELL program. Accordingly, one must recognize that several variables influence the ESL/ELD/ELL program that will be designed to operate in any given district: (1) student population to be served, (2) individual student characteristics, and (3) district resources.

District Demographics. Districts find themselves with many varieties of LEP students. Some districts have large, relatively stable populations of LEP students from a single language or cultural background. Others have large groups of LEP students representing several language backgrounds. For example, many districts in California have LEP students who are all from Mexico. And then there are others who also have Central American students amongst a predominately Mexican LEP population. Still other districts may experience a sudden increase in the number of LEP students from a given group: the number of Vietnamese, Hmong, Somalian, and Eastern European in many districts increased significantly in direct response to social and political changes in students' countries of origin. On the other hand, some districts have very small numbers of LEP students from many different language groups. Some report more than 100 language groups with two or three LEP students from each, scattered across grade levels and across schools. Characteristics of these populations, including the numbers and kinds of students per language group, the size of language groups and the mobility of their members, as well as geographic and grade distribution of students influence the type of ESL instructional program design that a district will develop to serve its students.

Individual Student Characteristics. Characteristics of individual students can influence any ESL program type. Some students enter U.S. schools with strong academic preparation in their native language. They have attended school in their own country, have learned to read and write well in their first language, and are at comparable (or better) levels in such content areas as mathematics.

For example, after having taught English at Calexico High School for over 10 years I noticed a great difference between the ESL students at Calexico High School and Live Oak High School (Morgan High, CA), where I had later taught. Calexico was located right across the border from Mexicali, B.C., Mexico. Education is more available (and more valued) in Mexico's industrial north. Consequently, over 25% of Mexicali's population possesses a university degree. Moreover, a good many have graduate level degrees.

As an English teacher at Calexico High, I not only found highly motivated students but also fully supportive parents. Indeed, learning English and attaining an education were highly sought after by most of the people along the border.

In contrast, at Live Oak High School, most of the ESL students were from the central and southern states of Mexico where education is less available than it is in the northern states. These students lacked motivation for higher education. Furthermore, many lacked a basic knowledge of their own native language and history. Some didn't even know the difference between the front and the back of a book! Their parents weren't much help either. During one student/parent/teacher conference, while being informed of their son's serious lack of motivation to learn English, the father responded to the son: "No te preocupes hijo, siempre hay trabajo en el Jack-in-the-Box o un carrocero." (Don't worry son, there's always work at Jack-in-the-Box or an auto body repair shop.)

Educators must recognize that there are other students like the many I had encountered at Live Oak who may not have had any extensive academic preparation. Due to social, economic, or cultural factors, their schooling may have been interrupted or never begun (Ovando and Collier, 1985). Some students at every age level come with little or no exposure to reading and writing, unable in some instances to do even basic mathematical computations. Designing an instructional program to serve students such as these becomes increasingly complicated.

District Resources. Availability of resources varies from district to district. Some have trained ESL personnel on site, while others are scrambling to find someone to work with a few students on a volunteer basis. A few districts can draw upon a large, stable community group for bilingual education programs.

Some districts are experiencing declining enrollments, freeing up classroom space to allow for such designs as magnet schools or resource centers. Other districts are bursting at the seams, making it seem impossible to find classroom space to house an ESL program. Thus, the capability of individual districts to provide human and material resources will greatly influence the type of ESL program that will be developed.

ESL program designs can be broadly categorized as either stand-alone ESL or ESL-plus. In general, stand-alone ESL programs group LEP students together and instruct them in a manner similar to that used in foreign language classes. The focus of the program is primarily linguistic. Stand-alone ESL programs operate solely for LEP students who are taken out of their regular classroom environment and placed in a setting where their need for instruction in and about English can be addressed in a special way (California State Dept. of Education, 1987). Stand-alone ESL programs usually operate for small portions of each school day, although in some less-than-ideal circumstances, they may operate less, with students receiving special instruction only two or three times a week.

ESL-plus programs may include a component of special instruction in and about English (like the stand-alone programs) but generally go beyond the linguistic scope to focus on content area instruction, which may be given in the student's native language or in English. ESL-plus programs generally serve students for a longer portion of the instructional day than stand-alone programs, and in some instances represent the student's entire instructional program.


Pull-out (generally used in an elementary setting…more common in Special Education settings). The student is pulled out of the regular classroom for special instruction in ESL. This pull-out instruction may be provided by teachers who are assigned to just one building (where the number of students needing instruction is large enough), or it may be provided by one teacher who travels to several schools to serve small numbers of children scattered throughout the district (Chamot and Stewner-Manzanares, 1985). Students from different first-language backgrounds may be separated into groups for instruction. The teacher may or may not be trained in ESL (O'Malley and Waggoner, 1984), and is generally not bilingual. As in most ESL/ELD/ELL programs, there must be, however, bilingual instructional assistants on-hand to assist with translations and/or scaffolding.

Class period (generally used in a middle or secondary school setting). Students receive ESL instruction during a regular class period, generally receiving credit for the course, just like any other course taken in a departmentalized setting. Students may be grouped according to their level of English proficiency. The teacher is generally not bilingual (California State Dept. of Education, 1987).

Resource Center. A variation of the pull-out design, the resource center brings students together from several classes or several schools. The resource center generally is an "enriched" version of the pull-out design, with materials and staff being concentrated in one location to provide a wider variety of language instruction and experiences. Students may be pulled out of their regular classrooms for one or more periods of ESL instruction. The resource center is generally staffed with at least one full-time ESL teacher, who may or may not be bilingual (California State Dept. of Education, 1987).


Bilingual Education Programs (used either at the elementary or secondary level (Seelye and Navarro, 1977). Bilingual programs are classified as "early transition" or "late transition" programs, depending on the criteria used to determine whether students can succeed in an all-English curriculum. In early exit programs, students are mainstreamed primarily on the basis of oral English proficiency. In "late transition," students are mainstreamed on the basis of English proficiency, including reading and writing, sufficient for sustaining academic achievement in an all English classroom.

In both early and late transition programs, students receive instruction that develops their native language skills, instruction in ESL, and content area instruction in varying degrees in English or the first language. Students are grouped according to first language, and teachers are bilingual (Hernandez-Chavez, 1984).

Structured Immersion Programs (used either in elementary or secondary level schools). Immersion programs include, in varying degrees, development of the student's first language skills and content area instruction in English. No structured ESL component is included. While students may address the teacher in either their first language or English, teachers (who are bilingual) respond generally in English. Content area instruction is based on the notion of "comprehensible input," in which the teacher uses only the vocabulary and structures that can be understood by students (Ramirez, 1986).

Sheltered English or Content-Based Programs (used primarily to date with secondary school students). These "alternative" content classes allow LEP speakers from different backgrounds with some English proficiency to be grouped into specific content classes especially designed to provide them with "comprehensible input." A trained ESL teacher who is not necessarily bilingual provides instruction. Sheltered English or content-based programs may parallel virtually all mainstream academic curricular offerings or may consist of only one or two subjects (Chamot and Stewner-Manzanares, 1985).

High Intensity Language Training (HILT) Programs (used primarily at the secondary level). In a HILT design, LEP students of various language backgrounds are grouped for a significant portion of the school day. Students receive intensive training in ESL, usually for three hours a day in the first year of instruction, less in succeeding years (Chamot and Stewner-Manzanares, 1985). Placement of students into regular classrooms is accomplished on a subject-by-subject basis and usually includes initial mainstreaming into linguistically undemanding classes such as music, physical education, and art. Some HILT models may incorporate content-based or sheltered English classes as an additional feature of program design. Teachers are trained in ESL and are not necessarily bilingual.

THERE ARE NO ONE BEST PROGRAM DESIGN TO USE WITH LEP STUDENTS. The design of any ESL program must take so many factors into account that it is difficult to decide which program organization is best for a given set of circumstances. What can be said, however, is that the best program organization is one which:

A.) is tailored to meet the linguistic, academic, and affective needs of students;

B.) provides LEP students with the instruction necessary to allow them to progress through school at a rate commensurate with their native-English speaking peers; and

C.) makes the best use of district and community resources.

A Survey to be given to future ESL/ELD/ELL teachers

1. Do you think it would be beneficial to the ESL student to have a cooperating general education teacher and an ESL teacher in the classroom?

2. What amount of time does the ESL student spend in a general education classroom and in an ESL classroom?

3. How will you work with the general education teacher and how will you collaborate on class work for the ESL student? How is this accomplished; i.e., recommendations and lesson plan modifications?

4. What are the advantages an ESL student to have a bilingual teacher that speaks the student's native language? Or, is this not necessary? How does this benefit the student's ability to learn the English language?

5. How important is it for the ESL student's family to be involved with the student's education? In what ways do you involve the family in the student's education?

6. As an ESL teacher, do you incorporate each student's cultural identity in your instruction? If so, how is this done? 

7. What type of collaboration exists between the ESL teacher and the special needs teacher? What is the percentage of ESL in this category? In inclusion?

8. What are the indicators for moving student's into and out of an ESL program? 

9. When students have achieved the goals of the ESL program, what types of support, if any, follow them to the general education classroom? How do you measure success?

10. What changes if any, would you like to see in your school's ESL program?