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This report is a critical summary of research conducted on three legal cases pertaining to bilingual education in U.S. Public Schools. This paper will include a complete description and analysis of Lau et. al vs. Nichols (1974), Castaneda v. Pickard case (1981), and LULAC vs. Florida Department of Education (1990). The objective is to focus on the adequacy and implications of these cases on the rights of English Language Learners (ELL) to receive a Free Appropriate Public Education (FAPE). The findings will consider both primary legal findings and secondary information from professional journals to explain how knowledge of each of these cases may help teachers' better meet the need and requirements of mainstreamed (ELL) students.
The basis for current provisions to assure the rights of bilingual or limited English proficiency students in public education starts with the Civil Rights Act of 1964. Several Supreme Court opinions, case law precedents, and legislation provide the legal background, which directly influences national school district policy and reaches into the classroom to insure English language learners receive an equitable public education appropriate to their linguistic and academic needs. The three cases presented here are legal milestones that display the continuing efforts toward school district policy and to achieve good teaching practices in the classroom to accommodate limited English proficiency students' right to a free appropriate public education.
Lau et al. vs. Nichols et al. is a lawsuit filed on behalf of Chinese American students in 1970
against the San Francisco Unified School Board. A lower court judgment and resultant appeals
placed the case before the Supreme Court in December 1973. The U.S. Supreme Court Case Lau v. Nichols, 414 U.S. 563, (1974) was the consequence of a lack of English language instruction provided to approximately 1,800 students of Chinese ancestry who did not read, speak, write, or comprehend English in the San Francisco Unified School District. The passing of the Civil Rights Act of 1964 and the Bilingual Education Act of 1968 provided the plaintiffs in Lau vs. Nichols with inspiration to pursue their rights to a quality education.
In the legal case, defendants (the San Francisco Unified School District) argued that education is not a right. There was nothing in the Constitution that mentioned education as a basic right for all citizens. Individual states chose to establish schools to provide the basic needs of all citizens, and in this case, the Chinese-speaking children clearly needed special help. Even so, the defendants argued that the students had no "Constitutional right to demand that the school district provide a remedy for their problem" (McPherson, 2000, p. 64).
Citing the Fourteenth Amendment clause, the attorney for the defendant, Burk Delventhal, pointed out that the provisions did not require the state to solve these problems all at once. State lawmakers, in their view, had already done a lot to solve problems for non-English-speaking children. The San Francisco Unified School District had complied within state guidelines as best they could in order to provide services to those in need.
Edward Steinman (attorney for the plaintiffs) stated during oral arguments ("Lau v. Nichols case summary and oral arguments", 1973) that approximately 1,800 of the 3,000 cited plaintiffs in the class action law suit received no English as a Second Language courses, and only a small number received a 40-minute a day pull-out instructional period. Additionally, a report from the San Francisco Unified School District illustrated how officials were acutely aware of the students' lack of access to a quality education and its negative effects.
In 1974, Chief Justice William O. Douglas wrote the official opinion; "that identical education
does not constitute equal education under the Civil Rights Act. School districts must take affirmative steps" to overcome educational barriers faced by non-English speakers" (Lyons, 1992, p. 8). The ruling set a clear precedent for school districts with a large percentage of non-English speakers, such as San Francisco Unified which counted 83% of its students as non-English speaking in 1974 (Wang, 1975).
A well-structured English Language Learner (ELL) plan has to be a whole-school and district-wide initiative created by a multidisciplinary team involving ELL teachers, general education teachers, staff, special education teachers, and other language specialists. The multiple connections between the Lau v. Nichols case and teaching and learning also affect the way curricula is designed to gradually integrate ELL students into the regular school program. In 1975, following the Lau ruling, the Department of Health, Education, and Welfare (HEW) published policies for schools to address Limited English Proficiency (LEP) students, and the Federal Office for Civil Rights (OCR) was in charge of overseeing the Lau resolution. The OCR gave instructions to school districts about how students would qualify to receive help learning the English language, what specific measurements to take in order to help them, and the type of training teachers should have.
In 1978, this ruling was tested in the case of Castaneda vs. Pickard when a parent (Roy Castaneda), of two Mexican-American students, filed against the Raymondville Independent School District (RISD), in Texas. Mr. Castaneda indicated the school district was in fact discriminating against his children because his children were placed in a group of classrooms based on criteria that was ethnically and racially discriminating. The claim was that RISD had failed to establish policy for bilingual education programs that would help his children overcome an English language barrier, and thus, as students, they could not compete with native English language speakers in the classroom. The Lau v. Nichols Case (1974) was cited as a requirement for school districts in this country to take the necessary actions in order to provide students the ability to overcome the English educational barriers. The Castaneda argument was that there was not real way to measure if the Raymondville Independent School District's approach would overcome the English proficiency barrier.
On August 17, 1978, a lower federal court initially ruled in favor of the Raymondville Independent School District citing that, in respect to the Castaneda vs. Pickard arguments', the Castaneda children's constitutional or statutory rights were not violated. Mr. Castaneda felt the Federal Court made a mistake and filed for an appeal.
In 1981, the United States Court of Appeals for the Fifth Circuit agreed and ruled in favor of the Castaneda's case. As a result, the precedent established a three-part assessment to hold bbilingual education programs responsible and to gauge how they were following the spirit of the ESEA guidelines'. The criterion parts must demonstrate that a program has; a practice grounded in sound educational theory; effective implementation of an appropriate program or practice; and results or assurance that the program is working through an evaluation and subsequent program modification to meet this requirement.
This Castaneda ruling, along with the Supreme Court decision Lau v. Nichols (1974) and the Office of Civil Rights (OCR)' Lau Remedies, reaffirmed the rights of English Language Learners to accessible public schooling that is adequate to their needs. These guidelines require an appropriate public program and comprehensible academic studies be held to the three level assessments to insure it is developed properly to accommodate the student's English proficiency level needs. Such a program has to be aligned to state and local standards as required by statute. In League of United Latin American Citizens (LULAC) et al. vs. State Board of Education (August 1990), the court examines the ongoing efforts of the Florida Department of Education (FDOE) to meet both the letter and spirit of a 1990 Consent Decree between the League of United Latin American Citizens (LULAC) and the Florida Department of Education.
On August 14, 1990, a Florida Consent Decree established that Limited English Proficiency (LEP) students receive "equal access to programming which is appropriate to his or her level of English proficiency, academic achievement, and special needs" (United States District Court for the Southern District of Florida. 1990). The plaintiffs (several groups active in the civil rights/educational community) charged that the State Board of Education had not met the requirements under federal and state law to provide LEP students with equal and comprehensible instruction.
On September 10, 2003, the State Board of Education and LULAC signed an agreement, a negotiated modification to the 1990 Consent Decree. The Stipulated Agreement, signed by U.S. District Court Judge Federico Moreno is currently active in all of Florida's school districts. The Stipulated Agreement does not diminish any options for English for speakers of other languages (ESOL) endorsement or coverage in the 1990 Consent Decree. However, it does expand some of the original provisions.
First, it provides an additional option through which a certified teacher may obtain ESOL coverage. Second, the amendment requires training, including post-certification hours, for all persons holding administrative and guidance counselor positions. Last, the new 2003 amendment allows the plaintiffs to secure access to the ESOL teacher test in addition, provide input that becomes part of the test's design. According to the Consent Decree, each student must have access to programming "appropriate to his or her level of English proficiency, academic achievement, and special needs" (United States District Court for the Southern District of Florida. 1990). In order to monitor this directive, each district must submit an LEP plan to the Florida Department of Education (FDOE). The Consent Decree does not mandate a specific methodology for ESOL instruction, but instead permits flexibility to local needs and demographics. The state stipulates that LEP students must receive ESOL instruction in English, however, and that they must have ESOL or home language instruction for reading, mathematics, science, social studies, and computer literacy.
In addition to a plan for the district, each student must have an individual Limited English Proficiency Student Plan on file. This document includes information on the date of identification, assessment data, and goals for exiting ESOL programs. Each student is also assigned an LEP Committee composed of the student's home teacher, an ESOL teacher, an administrator, in addition, a guidance counselor, or a social worker, if appropriate. Parents are invited to attend committee meetings. LEP committees are generally convened when a pupil is having difficulties, is eligible for reclassification, or is ready to participate in state assessments. Furthermore, each school must form an LEP Parent Leadership Council. According to the Decree, this parental representative body "has an active participation in all decision-making processes that impact instruction and issues" (United States District Court for the Southern District of Florida. 1990).
The LULAC vs. Florida Consent Decree requires each Limited English Proficient (LEP) pupil to receive "equal access to programming which is appropriate to his or her level of English proficiency, academic achievement, and special needs" (Lopéz, A. October 8, 2004). An amendment in 2003 requires an expansion of some of the original provisions. First, it provides an additional option through which a certified teacher may obtain ESOL coverage and specific levels of teacher training, including post-certification hours, for all persons holding administrative and guidance counselor positions. The amendment also allows the plaintiffs to secure access to the ESOL teacher test and provide input that becomes part of the test's design. The Consent Decree does not mandate a specific methodology for English Speakers of Other Languages (ESOL) instruction, but instead permits flexibility to local needs and demographics. The state stipulates that LEP students must receive ESOL instruction in English, however, and that they must have ESOL or home language instruction for reading, mathematics, science, social studies, and computer literacy. In addition to a plan for the district, each student must have an LEP Student Plan on file.
"As part of the Elementary and Secondary Education Act (ESEA) reauthorizations, a large part of Title 1 funding is now redirected by the legislation to be dedicated to a whole school program, which did improve the overall quality of education services." (Hanna 2005). The Lau remedies were to be withdrawn in 1981. Legislators attempted additional efforts to transform ESEA in the 1983 and 1989 reauthorizations under the Reagan and George H.W. Bush administrations. These republican adminÂistrations led a major campaign against bilingual education and were in favor of a "back to basics" education. The Bilingual Education Act, as amended in 1988, was an effort to re-define education programs with more specific goals, to provide for support centers, and to address capacity-building efforts. In 1993, democrats, lead by the Clinton administration, began a new education reform direction with the early development of standards-based reform through bills like Goals 2000. In 1994, under the Improving AmerÂica's Schools Act, the Bilingual EduÂcation Act was reauthorized. This "reauthorization rewrote ESEA with the idea that every state would create a standards-based system applicable to all students, including those who qualified under Title I" (Hanna, 2005). For the first time, bilinÂgual education was considered a resource to help immigrants become fluent English speakers, and a poÂtential asset to improve the country's prospects.
A wave of anti-bilingualism policies reached its peak with George W. Bush's "No Child Left Behind Act" (NCLB) in 2002. The law, which was a another reauthorization of the Elementary and Secondary Education Act (ESEA), did not officially ban bilingual programs, but it imposed a high-stakes testing system that promoted the adoption and implementation of English-only inÂstruction. "Title VII, also known as the Bilingual Education Act, was eliminated as part of a larger "school reform" measure" (Crawford, 2002). As such, the references to bilingual education in the previous ESEA documentation were redefined as English Language Learners in the new legÂislation.
The educational rights of school-age English language learners then are the new concerns of these cases and its series of legislative acts and court decisions. Jim Cummins, a noted Pedagogy author, published his thoughts as "educational policies created at the national level are negotiated at the state and local school district levels as supports are provided to schools, teachers, and their students. In this way, federal policies affect classroom practice in the micro-interactions that occur between teachers and students" (Cummins, 2001). The impact of the many legal cases on teachers meeting the needs and requirements of mainstreamed ELL students appears to result from a combination of policies influenced by immediate social, political, and economic factors. Officially, the United States does not have a national language policy which would directs a specific language practice in public schools, however, individual States have passed language policy legislation which places English over other languages. The national direction is on Civil Rights and any appropriate public program for comprehensible academic studies has to be developed to accommodate the student's English proficiency level needs. State and local school districts are tasked by stature to align public education programs.
Building an Equal Access Plan may generate misunderstandings in the classroom and community local levels based on funding and district training. A policy approved by a local school board will take time to construct so that steps for implementing a sound program can occur when needed. A newly arrived student could be waiting for several weeks under that scenario. A consequence of that approach is inaccessibility to appropriate instruction.
A policy reflects a school district's intent to comply with the spirit and provisions of law. It also assures that, because it is policy, no teacher or administrator may veto provisions of that policy. It is possible for provisions in policy to become dated or ineffective. Sometimes improved approaches to instruction merit piloting or implementation. Under these circumstances, schools are advised to revise their policy, consistent with the provisions of statute, and to seek school board approval for the newly revised policy or additions to policy. A teacher's creativity and excellence will service the classroom student and should not be limited or compromised by policy.