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ELLs and the Law: Statutes, Precedents

By Mark Walsh — December 31, 2008 5 min read
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Case law and statutes involving the right of English-learners to a public education—and the responsibilities of state and local governments to provide it—stretch back decades and continue to evolve. These are among the cases and laws that scholars and advocates consider landmarks in the area of the rights of language-minority and immigrant students:

Meyer v. Nebraska (1923)
In the first U.S. Supreme Court case to address foreign-language teaching in American education, the justices struck down a Nebraska law that barred public and private schools from offering instruction in any language but English. A teacher in an evangelical Lutheran private school had been charged with reading a Bible story in German to a student, in violation of a law adopted at one peak of anti-immigrant sentiment.

“The protection of the [U.S.] Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue,” Supreme Court Justice James C. McReynolds wrote. The decision established the principle that parents have a constitutional right to direct the upbringing of their children, including their education.

Mendez v. Westminster (1947)
In this case, a unanimous U.S. Court of Appeals for the 9th Circuit upheld a federal district court that had struck down the segregation of Mexican and Mexican-American students in four Orange County, Calif., school districts as a violation of the due-process and equal-protection clauses of the U.S. Constitution’s 14th Amendment. One of the grounds for segregating such children at the time was that they were deficient in English, and the challenge to the practice by several families was that Spanish-speaking students of Mexican descent lost ground in learning English in such segregated settings.

The case is viewed by many as the first federal court decision to strike down segregation in K-12 education, and it helped lay the groundwork for the legal attack on racial segregation that led to the Supreme Court’s 1954 ruling in Brown v. Board of Education of Topeka.

The school districts in the Mendez case had declined to appeal the 9th Circuit decision to the high court, and later in 1947, California repealed its laws authorizing school segregation. The repeal was signed by then-Gov. Earl Warren, who went on to deliver the Brown opinion as chief justice of the U.S. Supreme Court.

Bilingual Education Act (1968)
Congress amended the Elementary and Secondary Education Act of 1965 by adding a major section, then known as Title VII, that was designed to help children with limited English-speaking ability by providing federal aid for educational programs, teacher training, development of instructional materials, and promotion of parent involvement. The law left unresolved whether its central goal was to speed students’ transition to English or to promote bilingualism.

The law has been revised over the years, usually under the reauthorization of the ESEA and its current version, the No Child Left Behind Act, which replaced the Title VII competitive-grant program with Title III, a formula-grant program to the states promoting English acquisition and helping English-language learners meet challenging content standards.

Serna v. Portales Municipal Schools (1972)
Despite the federal bilingual education law, many school districts were slow to offer effective bilingual education programs. A series of lawsuits across the country addressed the response, including this one from Portales, N.M., considered the first bilingual education class action filed by Mexican-Americans. A federal district judge ordered school officials to hire more Spanish-speaking teachers and to develop a more aggressive bilingual education plan. A federal appeals court upheld the ruling and granted broad remedial powers to district judges to fashion effective bilingual plans.

Lau v. Nichols (1974)
Another of the lawsuits challenging inadequate instruction for language minorities reached the U.S. Supreme Court. Parents of Chinese ancestry in San Francisco sued over the fact that the city’s school system required mastery of English for high school graduation, but failed to provide some 1,800 non-English-speaking students with special instruction so they could master the language. The court said the school system violated Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in programs that received federal funds.

“We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful,” Justice William O. Douglas wrote for the court. The children were entitled to the special assistance, the court said, although it gave the school system broad leeway in deciding how to remedy the problem.

Equal Educational Opportunities Act (1974)
Soon after the Lau decision, Congress passed this law, which mandated that no state could deny equal educational opportunity to any individual by, among other things, “the failure of an educational agency to take appropriate action to overcome language barriers that impede equal participation by students in an instructional program.”

Plyler v. Doe (1982)
In a case that didn’t deal specifically with language issues, the Supreme Court struck down a Texas law that withheld funding from school districts for the education of any children who were not “legally admitted” into the United States. “It is difficult to understand precisely what the state hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates,” Justice William J. Brennan Jr. wrote for the majority. The court held that although education is not a fundamental right under the U.S. Constitution, the undocumented immigrant children had a 14th Amendment equal-protection right not to be deprived of the same educational benefits as other residents.

Flores v. Arizona (2008)
In a long-running case, the 9th Circuit appeals court ruled in February 2008 that Arizona must comply with a federal district court decision requiring it to do more to adequately fund instruction for English-language learners. The court rejected arguments that provisions in the No Child Left Behind law on ELL students significantly altered the law in this area and that the state had satisfied its obligations under the Equal Educational Opportunities Act. The state has appealed the ruling to the U.S. Supreme Court.

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SOURCES: Education Week; U.S. Department of Education; Bilingual Education: History, Politics, Theory, and Practice, by James Crawford; Chicano Students and the Courts: The Mexican American Struggle for Educational Equality, by Richard R. Valencia;and “Equal Educational Opportunity and Nondiscrimination for Students With Limited English Proficiency: Federal Enforcement of Title VI and Lau v. Nichols,” a report by the U.S. Civil Rights Commission.

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