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English-Language Learners

Bilingual Policy Has Taken Shape Along Two Federal Tracks

By James Crawford — April 01, 1987 24 min read
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Over the past two decades, federal policy on bilingual education has proceeded along two tracks—financial aid to support programs for limited-English-proficient children and civil-rights enforcement to ensure these students an equal chance to succeed in school.

Although both tracks have led to increased educational opportunities, they have not always run side by side. In the beginning, the government authorized funding for bilingual instruction before it ever considered the issue of language discrimination in the schools.

In the mid-1970’s, bilingual education was prescribed as both a remedy for civil-rights violations and a condition for receiving federal grants. But today, while special language assistance is required for children who could not otherwise participate in the classroom, the only federal mandate for bilingual education is for schools that seek aid.

Title VII, a New Law

When President Lyndon B. Johnson signed the Bilingual Education Act into law on Jan. 2, 1968, it was the first time the federal government had addressed the unique needs of students with limited-English proficiency.

The new law, Title VII of the Elementary and Secondary Education Act, provided resources to support educational programs, to train teachers and aides, to develop and disseminate instructional materials, and to establish parent-involvement projects. Despite its title, the original Bilingual Education Act did not require bilingual instruction.

The law’s focus was explicitly compensatory, aimed at children who were both poor and “educationally disadvantaged because of their inability to speak English.’' The question of whether the act’s goal was to speed the transition to English or to promote bilingualism through language-maintenance programs was left hanging.

Senator Ralph Yarborough, the measure’s prime advocate, told fellow lawmakers, “It is not the purpose of the bill to create pockets of different languages throughout the country ... not to stamp out the mother tongue, and not to make their mother tongue the dominant language, but just to try to make those children fully literate in English.’'

Mr. Yarborough--like the President, a Democrat from Texas--encountered his stiffest resistance from the White House. Even more than Mr. Johnson’s personal animus toward Senator Yarborough, the tight federal budget, squeezed by a proliferation of Great Society programs and the Vietnam war, was an obstacle.

Commissioner of Education Harold Howe 2nd, in testimony before Senator Yarborough’s special subcommittee on bilingual education, argued that aid could be provided under the existing Titles I and III of the Elementary and Secondary Education Act. Indeed, Title III was already supporting 18 bilingual and English-as-a-second-language programs in the Southwest.

Also, Mr. Howe and others objected to the limited scope of Mr. Yarborough’s proposal, which would have aided only Spanish-speaking children. In the end, a compromise drafted by Representative James Scheuer, Democrat of New York, applied Title VII to all children of limited-English-speaking ability.

Notwithstanding the differences over details, there was remarkably little controversy over the idea of federal support for bilingual education. Ten years earlier, foreign-language instruction had begun to make a comeback in the aftermath of sputnik and the Congress’s passage of the National Defense Education Act. And political winds in the late 1960’s favored more attention for Hispanics, who had been largely passed over by the new anti-poverty and civil-rights laws.

The National Education Association had drawn attention to the plight of Spanish-speaking children with its “Tucson survey’’ of 1965-66, painting a picture of educational neglect in that Arizona city—inadequate facilities and materials, a lack of trained teachers, and the scandal of “sink or swim’’ schooling. During hearings on Senator Yarborough’s bill, representatives of the N.E.A. and “The Invisible Minority,’' a pamphlet describing the survey, commanded center stage.

In endorsing the bill, Senator George Murphy, Republican of California, noted that Gov. Ronald Reagan had recently signed legislation repealing California’s English-only school statute. (In 1972, Mr. Reagan approved the state’s first bilingual-education law.)

As with any idea whose time has come politically, members of Congress scrambled to affix their names. Thirty-seven bilingual-education bills were introduced in 1967.

Expenditures were another matter, however. The 90th Congress approved no funding for Title VII in the first year, 1968-69. For the next school year, it appropriated $7.5 million, enough to finance 76 projects serving 27,000 children.

The federal funding effectively doubled the number of children enrolled in bilingual classrooms in the United States. In 1968, only 26,000 students received bilingual instruction, according to Heinz Kloss, an education historian. By 1972, the total had risen to 112,000 of the estimated 5 million language-minority children of school age.

In 1971, Massachusetts became the first state to pass a bilingual-education law; by the early 1980’s, 30 states had such statutes. Nine required native-language instruction under certain circumstances, and 21 provided financial aid to bilingual programs. While a few states continue to prohibit instruction in languages other than English, these laws are no longer enforced.

Civil-Rights Policy

The second track of federal policy on bilingual education began to take shape around 1970, prompted by civil-rights litigation alleging that equal opportunities were being denied to language-minority students.

While the Civil Rights Act of 1964 extended its anti-discrimination guarantees to national origin, by the late 1960’s federal officials were still restricting their attention in the schools to race bias against blacks.

La Raza Unida Party, a militant Chicano group in Crystal City, Tex., took matters into its own hands. In 1969, it organized school boycotts to protest the segregation and unequal treatment of Spanish-speaking students. Bilingual education was among its demands and—after the party won a majority of seats on the local school board—among its innovations.

Meanwhile, Mexican-American, Puerto Rican, and other language-minority parents began to sue school districts, challenging officials’ failure to address their children’s language needs.

Finally, on May 25, 1970, the U.S. government entered the fray. J. Stanley Pottinger, director of the federal office for civil rights, informed “school districts with more than 5 percent national-origin-minority group children’’ of their obligations under Title VI of the Civil Rights Act, which outlaws discrimination in federally supported programs.

First, he said in a memorandum, where children had limited-English skills, “the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.’' Though districts were not directed to establish bilingual-education programs, the memo demanded that some special language instruction be offered.

Also, children could not be assigned to classes for the handicapped “on the basis of criteria which essentially measure or evaluate English-language skills,’' Mr. Pottinger said. Nor could schools shuttle children along vocational tracks toward an “educational dead-end’’ instead of teaching them English. Finally, school administrators had to communicate with parents in a language they could understand.

While the memo carved out new territory for OCR enforcement of Title VI—including the threat to cut off federal education subsidies as a last resort—the immediate reaction in school districts was muted. Colman B. Stein, an education historian, writes that in Beeville, Tex., the superintendent’s only response was to redesignate the vocational track as “career education.’'

Court Mandates

If the executive branch was slow to get results, the federal courts were not. For example:

  • In 1972, in the case of Serna v. Portales Municipal Schools, a U.S. District Judge ordered a New Mexico school district to provide instruction in the children’s native language and culture as part of a desegregation plan. Upholding the decision two years later, the U.S. Court of Appeals for the 10th Circuit ruled that Title VI gave Hispanic students “a right to bilingual education.”
  • In 1974, Aspira, a Puerto Rican advocacy group, won a consent decree that established a bilingual program for Spanish-dominant children in New York City. The agreement, the result of a suit filed on behalf of 150,000 Hispanic students, remains in effect today.
  • In 1981, in the most sweeping court order, U.S. District Judge William Wayne Justice cited past discrimination by the Texas Education Agency and mandated bilingual instruction in grades K-12 throughout Texas.

Not only had the state segregated students in inferior “Mexican schools,’' the judge said, but the state had “formerly vilified the language, culture, and heritage of these children with grievous results.’' A year later, however, the U.S. Court of Appeals for the Fifth Circuit reversed the ruling in the case, U.S. v. Texas.

Today, the most important court case regarding language-minority students—and the only such case to reach the U.S. Supreme Court—remains Lau v. Nichols. The lawsuit originated in 1969, when a poverty lawyer in San Francisco learned that a client’s child, Kinney Lau, was failing in school because he could not understand the language of instruction.

The class-action suit alleged that the district’s 1,800 Chinese students were being denied education on “equal terms"—the High Court’s standard in Brown v. Board of Education—because of their limited-English skills.

San Francisco school officials argued that, unlike the 1954 Brown case, there was no discrimination because there was no segregation. The same instruction was offered to all students, they said, without regard to national origin, and the district was not to blame for the Chinese children’s “language deficiency.’' Federal district and appeals courts agreed.

But in 1974, the Supreme Court unanimously overruled the lower courts. “There is no equality of treatment,” wrote Justice William O. Douglas, “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.”

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, the Court said. “Sink or swim’’ was unacceptable.

The Court did not invoke Constitutional guarantees—or, in legal parlance, the opinion “did not reach’’ the Equal Protection Clause of the 14th Amendment. Title VI, whose implications were spelled out by Mr. Pottinger’s memorandum, was sufficient basis for requiring extra help for children with limited English skills, according to Justice Douglas.

Also, the Court stopped short of mandating bilingual education—an omission that the program’s critics have interpreted as “upholding flexibility’’ for school districts. But because the Lau plaintiffs had earlier dropped their request for bilingual education, the Court’s failure to order it was customary; it conformed with Supreme Court procedure. The opinion said nothing for or against flexibility.

“No specific remedy is urged upon us,’' Justice Douglas said in the preface to his opinion. “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.’'

In the end, San Francisco officials signed a consent decree with the plaintiffs to provide bilingual instruction for the city’s Chinese, Filipino, and Hispanic children.

Lau Remedies

The Lau ruling attracted little public notice at the time, receiving a one-sentence mention in the Jan. 22, 1974, edition of The New York Times.

But the office for civil rights grasped the magnitude of the enforcement job ahead. In 1975, its investigators visited 334 districts with large numbers of language-minority children and found that “most ... utterly failed to meet their responsibilities,’' according to David S. Tatel, who later became director of the OCR Meanwhile, as mandated by the Supreme Court, a task force led by Martin H. Gerry drew up guidelines for “educational approaches which would constitute appropriate ‘affirmative steps’ to be taken by a noncomplying school district ‘to open up its instructional program.’''

Education Commissioner Terrel H. Bell announced these so-called “Lau remedies’’ on Aug. 11, 1975. They told districts, among other things, how to identify and evaluate children with limited-English skills, what instructional treatments would be appropriate, when children were ready for mainstream classrooms, and what professional standards teachers should meet.

Most significant, the remedies went beyond the Lau decision and mandated bilingual education for elementary-school children who spoke little or no English.

“English as a second language is a necessary component’’ of bilingual instruction, the guidelines added, but “since an ESL program does not consider the affective or cognitive development of the students ... an ESL program [by itself] is not appropriate.’' For secondary-school students, the guidelines said, English-only compensatory instruction would usually be permissible.
Hastily drafted without an opportunity for public comment, the Lau remedies lacked the legal status of regulations. In practice, though, the guidelines had the full force of the federal government behind them, as the OCR embarked on a campaign of aggressive enforcement. Where federal investigators found that the civil rights of language-minority students were being violated, they used the Lau remedies as a basis to negotiate consent agreements, or “Lau plans,’' with offending districts.

Title VII Evolves

By 1974, when the Bilingual Education Act came up for reauthorization, it had developed a strong constituency among Hispanics and influential allies on Capitol Hill. Title VII’s budget had increased to $50 million, and Senators Edward Kennedy and Walter Mondale, both Democrats, moved to expand the program.

As amended, the law dropped the poverty criterion—previously, participants had to come from families with incomes below $3,000 a year—and, for the first time, Title VII required programs receiving grants to include instruction in the children’s native language and culture.

While “bilingual-bicultural education’’ was sanctioned as a route to English acquisition, the 1974 amendments failed to resolve the tension between the goals of transition to English and maintenance of a native language. Both approaches remained eligible for funding.

In instructions for grant applicants in 1971, the Department of Health, Education, and Welfare had said, “It must be remembered that the ultimate goal of bilingual education is a student who functions well in two languages on any occasion.’' But in December 1974, before President Gerald Ford signed the 1974 amendments, HEW Undersecretary Frank Carlucci issued a new interpretation of Congressional intent:

“The cultural pluralism of American society is one of its greatest assets, but such pluralism is a private matter of local choice, and not a proper responsibility of the federal government. ... [The goal of Title VII is] to assist children of limited- or non-English speaking ability to gain competency in English so that they may enjoy equal educational opportunity—and not to require cultural pluralism.’'

Politically, the maintenance issue was to become bilingual education’s Achilles heel. Beginning in the mid-1970’s, a backlash developed against federal expenditures to promote ethnic pride or to preserve minority languages. Critics argued against diverting federal dollars from the twin imperatives of teaching English and assimilating children into the mainstream.

“The American taxpayer, while recognizing the existence of cultural diversity, still wants the schools to be the basis of an American melting pot,’' Albert Shanker, president of the American Federation of Teachers, wrote in a 1974 editorial. “While the need for the child to feel comfortable and be able to communicate is clear, it is also clear that what these children need is intensive instruction in English, so that they may as soon as possible function with other children in regular school programs.’'

President Carter, whose Administration was generally supportive of bilingual education, told his Cabinet, “I want English taught, not ethnic culture.’'

Reflecting a growing discontent with language-maintenance programs, the education amendments of 1978 excluded them from federal assistance under Title VII. The new law also instructed grant recipients to use native-language instruction “to the extent necessary’’ for children to become competent in English.

At the same time, eligibility for assistance was expanded to “limited-English-proficient’’ students—in other words, to include reading and writing, as well as speaking skills.

Regulatory Suicide

Meanwhile, the OCR continued to monitor school districts’ performance on civil rights and, where it found violations, to require bilingual education and other changes under the Lau remedies. By 1980, it had negotiated 359 Lau plans to remedy past discrimination.

A majority of districts cooperated, albeit with some grumbling about the government’s “heavy-handedness,’' and many LEP children received special help for the first time.

In 1977, for example, Alhambra, Calif., had no bilingual education and minimal English-as-a-second-language instruction. Today, 10 years after the OCR cited it for civil-rights violations, the district runs highly regarded bilingual programs in Spanish, Vietnamese, Cantonese, and Mandarin, and requires every teacher to be trained in the latest ESL techniques. This year, it will do so without any support from Title VII.

But there was resistance to the OCR’s efforts as well.

As a result of one such dispute in 1978, the OCR entered into a consent agreement with a group of school districts in Alaska in which it pledged to issue formal regulations, rather than continue relying on the Lau remedies. But the H.E.W. took its time studying the legal issues, and the creation of the new Education Department added to delays in the drafting of the regulations.

Two years later, shortly before the 1980 election, President Carter acted. In what was widely viewed as a political move to win Hispanic support, his Administration proposed regulations even more prescriptive than the Lau remedies. Under the Lau regulations, bilingual education would be mandated in schools with at least 20 LEP children of the same minority-language group.
Reaction was immediate and overwhelmingly negative from educators’ organizations, with support coming only from the NEA and the National Association for Bilingual Education. The Education Department received an unprecedented 4,600 public comments, most in opposition, and the Congress voted to block the rules from taking effect before mid-1981.

In an effort to defend the regulations, Education Secretary Shirley Hufstedler sent representatives of her Title VII office to appear at hearings around the country. But the effect, says Mr. Stein, the education historian, was to strengthen “the popular misconception that the new regulations and the Title VII program were one and the same.’'

“The opposition made the most of it and was able to weaken both the grant-giving and enforcement aspects of bilingual education,’' he says.

O.C.R. Retreats

Calling the regulations “harsh, inflexible, burdensome, unworkable, and incredibly costly,’' Mr. Bell, President Reagan’s new Secretary of Education, withdrew the rules on Feb. 2, 1981. The same official who had issued the Lau remedies six years earlier, Mr. Bell criticized the idea of mandating native-language instruction as “an intrusion on state and local responsibility.’'

“We will protect the rights of children who do not speak English well,’' Mr. Bell said, “but we will do so by permitting school districts to use any way that has proven to be successful.’'

The OCR, while attempting to define standards that would ensure LEP children’s needs were addressed, worked to develop new regulations that would give districts more flexibility. Soon, however, it encountered opposition from within.

Daniel Oliver, the Education Department’s new general counsel, expressed “doubts concerning the current validity of [the] Lau’’ decision. In line with the Reagan Administration’s philosophy of civil-rights enforcement, Mr. Oliver argued that the OCR should have to prove “discriminatory intent,’' rather than merely “discriminatory effects,’' to find a district in violation of Title VI of the Civil Rights Act.

A district’s failure to provide any special services to LEP children would clearly violate the law, Mr. Oliver said. But “a school district which implements reasonably a program based upon a theory deemed sound by experts [would] demonstrate a lack of discriminatory purpose,’' unless the OCR could prove otherwise. A consensus on what regulations to propose was never reached, however, and in late 1982 the idea of issuing new Lau rules was abandoned.

Enforcement activity, meanwhile, fell off sharply. The Lau remedies were no longer applied. “Districts have been left free to pursue any approach based on informed educational judgment,’' the OCR’s director, Harry M. Singleton, wrote in a June 29, 1982, memorandum to Secretary Bell.

According to enforcement data compiled by the civil-rights office in 1986, districts were nine times less likely to be monitored for Lau violations under the Reagan Administration than under the Ford and Carter administrations. The OCR continued to find violations in nearly 60 percent of its compliance reviews, but follow-up visits were rare.

Effectiveness Controversy

Title VII, meanwhile, came under increasing fire after the Lau regulations were withdrawn. Soon after taking office, President Reagan declared that it was “absolutely wrong and against American concepts to have a bilingual-education program that is now openly, admittedly dedicated to preserving native language and never getting adequate in English.’'

In the fall of 1981, an Education Department review of bilingual-education research concluded that “the case for the effectiveness of transitional bilingual education is so weak’’ that districts should be encouraged to experiment with alternative methods.

Pressure to drop Title VII’s native-language requirement intensified among those who sought funding for programs using ESL-only approaches or “structured immersion’’ in English.

Fairfax County, Va., a large district in suburban Washington with LEP students from 50 different language groups, was often cited as an example of the impracticality of bilingual education.

In December 1980, Fairfax officials won a four-year battle with the OCR for approval of a Lau plan that featured ESL without bilingual instruction. Federal authorities conceded that children were learning in the well-financed program, where teacher-student ratios averaged 12-1 and the district was spending $750 per LEP child in addition to a per-pupil expenditure of $2,696, which was well above the national average.

Esther J. Eisenhower, the district’s E.S.L. director, was not an opponent of bilingual education. But she became a leading advocate for giving school officials the discretion and funding “to teach LEP children in the methodologies that they deem best for their students’ particular needs.’'

Testifying before a Senate subcommittee in 1982, Ms. Eisenhower said, “I cannot deny that instruction in the native language—when it is available, when there is the proper curriculum, when there are the best trained teachers—is the best method to teach the children. But sometimes we look at the labels and forget that the main ingredient for education is how a program is implemented.’'

At the same time, a growing movement led by Senator S.I. Hayakawa, a Republican from California, opposed bilingual instruction less for educational reasons than for ideological ones, insisting that native-language instruction discouraged immigrants from joining the American mainstream.

Representative James Sheuer, one of the original sponsors of the Bilingual Education Act, said the law’s “original purposes [had been] perverted and politicized.’' He said the program had been intended to provide “a pressure-cooker experience in English. [But instead], English has been sort of thinned out and in many cases vanished into the mists.’'

1984 Amendments

With the act up for reauthorization in 1983, opponents were optimistic that they could get the law changed or block an extension of the program. But the Congress postponed the battle by moving Title VII’s expiration date up to the fall of 1984.

Meanwhile, as the Republicans developed new strategies to court the Hispanic vote that year, the President offered words of praise for “effective bilingual programs,’' and a White House aide described Mr. Reagan’s “growing sensitivity on the issue.’'

Two House Democrats, Dale Kildee of Michigan and Balthazar Corrada of Puerto Rico, introduced legislation reauthorizing the program, drafted by the National Association for Bilingual Education. To the surprise of most observers, the bill moved quickly, largely the result of a compromise worked out with two Republicans representatives, John McCain of Arizona and Steve Bartlett of Texas.

Under the compromise, 4 percent of Title VII funds were authorized for “special alternative instructional programs’'—those using no native language. If total appropriations exceeded $140 million, half of the excess would go to the alternative programs, up to 10 percent of total grant awards.

The Reagan Administration has cut Title VII funding from a high of $167 million in 1980 to $133 million in fiscal 1986. For the current fiscal year, the Congress has appropriated $143 million, and grants for English-only programs remain capped at 4 percent.

The 1984 amendments also authorized grant programs for “family English literacy,’' aimed at parents of children in Title VII programs, and for “developmental bilingual education,’' or language-maintenance programs.

Bennett’s ‘Initiative’

Soon after his confirmation as Secretary of Education in 1985, William J. Bennett unveiled a “bilingual-education initiative,’' igniting yet another round of national debate.

Noting high dropout rates among Hispanic students, the Secretary suggested that bilingual education had failed. Federal policy, he said, had “lost sight of the goal of learning English as the key to equal educational opportunity’'; instead, native-language instruction had become “an emblem of cultural pride.’'

Mr. Bennett also said Title VII’s requirement for native-language instruction reflected “a foolish conviction that only Washington knew best ... that local school districts ... could not be trusted to teach their students English.”

His initiative had three parts. First, the Education Department issued new regulations for bilingual-education grants, which gave preference to programs that move children as quickly as possible from native-language instruction to mainstream classes.

Also, it informed the 498 districts that had adopted bilingual education as part of Lau plans that they were free to renegotiate the agreements with the OCR But six months later, only 3 percent of those districts had responded, some to say that they planned to expand bilingual programs.

Finally, the Administration, citing “the inconclusiveness of research,” proposed legislation to remove all restrictions on Title VII funding for English-only approaches.

Bilingual-education advocates reacted angrily to Mr. Bennett’s attempt to undo the bipartisan compromise on the issue reached a year earlier. They predicted that, without restrictions, the Education Department would redirect much of Title VII aid to experimental programs simply because they posed an alternative to bilingual education.

“If this program were fully funded, it wouldn’t make much difference,” said James J. Lyons, legislative counsel to the National Association for Bilingual Education. “But when you’re funding only one-third of those who apply, it’s outrageous.”

The Reagan Administration is hypocritical, he added, to attack Title VII’s native-language requirement, while seeking to eliminate the Emergency Immigrant Assistance program, which largely supports English-as-a-second-language instruction.

Raul Yzaguirre, president of the National Council of La Raza, compared Mr. Bennett’s criticism of “federal intrusiveness” to segregationists’ invocation of “states’ rights,” accusing him of stirring up “xenophobic fears” toward language minorities.

“How can a small, voluntary, competitive grant program—in which more school agencies apply than can be funded—be heavy-handed?” Mr. Yzaguirre asked.

The Congress took no action on the Administration’s bill last year. But aides to Secretary Bennett have expressed optimism about the legislation’s prospects this year. Title VII must be reauthorized in the 100th Congress, and if the department can get an up-or-down vote on its proposal, it has a good chance of passage, according to former Undersecretary of Education Gary L. Bauer.

“Our intention is neither to promote one instructional method at the expense of another, nor to belittle or diminish any culture or heritage,” Secretary Bennett has said. “If a district decides that native-language instruction is the best way to help its students learn English, then that district ought to be able to receive federal support.”

He adds, however, that “we must be clear as to the goal of the federal bilingual-education program—the rapid acquisition of fluency in English.”

A version of this article appeared in the April 01, 1987 edition of Education Week as Bilingual Policy Has Taken Shape Along Two Federal Tracks


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