Encyclopedia of Bilingual Education

Encyclopedia of Bilingual Education

Encyclopedias

Edited by: Josué M. González

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Abstract

The Encyclopedia of Bilingual Education is embedded in several disciplines, including applied linguistics, politics, civil rights, historical events, and of course, classroom instruction. This work is a compendium of information on bilingual education and related topics in the United States with select international contributors providing global insight onto the field.

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  • Subject Index
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    • Family, Communities, and Society
    • History
    • Instructional Designs
    • Languages and Linguistics
    • People and Organizations
    • Policy Evolution
    • Related Social Sciences
    • Teaching and Learning
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      Editorial Board

      Editor

      Josué M. González, Arizona State University

      Managing Editor

      Silvia C. Noguerón, Arizona State University

      Assistant Managing Editor

      Pauline Stark, Arizona State University

      Editorial Board

      Gerda de Klerk, Arizona State University

      Terrence G. Wiley, Arizona State University

      Wayne E. Wright, University of Texas at San Antonio

      Nancy F. Zelasko, George Washington University

      List of Entries

      Reader's Guide

      About the Editor

      Josué M. González is Professor of Education at the Mary Lou Fulton College of Education at Arizona State University, in the division of Educational Leadership and Policy Studies. He is also the director of the Southwest Center for Education Equity and Language Diversity at ASU. Dr. González received an EdD in Educational Leadership from the University of Massachusetts at Amherst in 1974. Known internationally for his work, Professor González was an early innovator in bilingual and dual-language education. As early as 1967, he wrote curriculum materials and designed programs at all levels, from elementary to graduate school. He has written extensively in that field and has lectured widely. He has helped train future teachers and other school leaders and has held faculty appointments at Chicago State University, Southern Methodist University in Dallas, and Teachers College in New York City. He has also held adjunct appointments at Roosevelt University in Chicago and George Mason University in Virginia.

      When the U.S. Department of Education was organized by President Jimmy Carter, Dr. González was appointed the first director of the Office of Bilingual Education and Minority Languages Affairs under the nation's first Secretary of Education, Shirley Hufstedler. He was president of the National Association for Bilingual Education (NABE) from 1986 to 1987 and has served on several advisory committees and commissions. From 1999 until 2006, Dr. González was coeditor of the nation's premier professional journal in the field, the Bilingual Research Journal.

      Contributors

      Hamsa Aburumuh, University of Texas at San Antonio

      Jorge A. Aguilar, Arizona State University

      Alfredo J. Artiles, Arizona State University

      Lani Asturias, Arizona State University

      Diane August, Center for Applied Linguistics

      Colin Baker, University of Wales, Bangor

      María V. Balderrama, California State University, San Bernardino

      Donald Jeffrey Bale, Michigan State University

      Andy Barss, University of Arizona

      Coni Battle, National Puerto Rican Forum (ret.)

      Alfredo H. Benavides, Texas Tech University

      William Black, University of South Florida

      María Estela Brisk, Boston College

      Valentina Canese, Arizona State University

      Mario J. Castro, Arizona State University

      Ellina Chernobilsky, Rutgers University

      Donna Christian, Center for Applied Linguistics

      James Cohen, Arizona State University

      Debra L. Cole, Teachers College, Columbia University

      Mary Carol Combs, University of Arizona

      Albert Cortéz, Intercultural Development Research Association

      Cathy A. Coulter, Arizona State University

      James Crawford, Institute for Language and Education Policy

      Kimberley K. Cuero, University of Texas at San Antonio

      Irene Cuyun, National Council of La Raza

      María de la Luz Reyes, University of Colorado, Boulder

      William G. Demmert, Western Washington University

      Barbara J. Dray, Buffalo State College

      Jacqueline Castillo Duvivier, National Council of La Raza

      J. David Edwards, Joint National Committee for Languages and National Council for Languages and International Studies

      Lucila D. Ek, University of Texas at San Antonio

      Kathy Escamilla, University of Colorado, Boulder

      Alberto Esquinca, University of Texas at El Paso

      Carol Evans, University of Arizona

      Christian Faltis, Arizona Sate University

      Barbara Marie Flores, California State University, San Bernardino

      Belinda Bustos Flores, University of Texas at San Antonio

      David E. Freeman, University of Texas at Brownsville

      Yvonne S. Freeman, University of Texas at Brownsville

      Eugene E. García, Arizona State University

      Ofelia García, Teachers College, Columbia University

      Heriberto Godina, University of Texas at El Paso

      Gustavo González, Texas A&M University

      Virginia Gonzalez, University of Cincinnati

      Josué M. González, Arizona State University

      Minerva Gorena, George Washington University

      Margo Gottlieb, Illinois Resource Center and WIDA Consortium

      Paul E. Green, University of California, Riverside

      Toni Griego Jones, University of Arizona

      Norma A. Guzman, University of Texas at San Antonio

      Stella K. Hadjistassou, Arizona State University

      Kenji Hakuta, Stanford University

      John J. Halcón, California State University, San Marcos

      Holly Hansen-Thomas, Binghamton University

      Timothy Hogan, Arizona Center for Law in the Public Interest

      Paquita B. Holland, District of Columbia Public Schools (ret.)

      Susan Hopewell, University of Colorado, Boulder

      Nancy H. Hornberger, University of Pennsylvania

      Sarah Hudelson, Arizona State University

      Mary Esther Soto Huerta, Texas State University, San Marcos

      Li-Ching Hung, Mississippi State University

      Julian Jefferies, Boston College

      Bryant T. Jensen, Arizona State University

      Li Jia, University of Texas at San Antonio

      Margarita Jiménez-Silva, Arizona State University

      Eric Johnson, Arizona State University

      Faryl Kander, Arizona State University

      Deborah Kennedy, Center for Applied Linguistics

      Hye Jong Kim, Arizona State University

      Kathleen King, Arizona State University

      Jo Anne Kleifgen, Teachers College, Columbia University

      Janette Kettmann Klingner, University of Colorado, Boulder

      Michelle Kuamoo, National Clearinghouse for English Language Acquisition

      Ha Lam, Arizona State University

      Juliet Langman, University of Texas at San Antonio

      Jin Sook Lee, University of California, Santa Barbara

      Mengying Li, Arizona State University

      Na Liu, Arizona State University

      Amalia Humada Ludeke, New Mexico State University

      Jeff MacSwan, Arizona State University

      Kate Mahoney, State University of New York, Fredonia

      Nancy Sebastian Maldonado, Lehman College, City University of New York

      Paul E. Martínez, New Mexico Highlands University

      Leah M. Mason, Teachers College, Columbia University

      Julie Renee Maxwell-Jolly, University of California, Davis

      Kara T. McAlister, Arizona State University

      Teresa L. McCarty, Arizona State University

      Geri McDonough Bell, Phoenix Union High School District

      Grace P. McField, California State University, San Marcos

      Scott McGinnis, Defense Language Institute

      Kate Menken, City College of New York

      Betty M. Merchant, University of Texas at San Antonio

      Eva Midobuche, Texas Tech University

      Robert D. Milk, University of Texas at San Antonio

      María Robledo Montecel, Intercultural Development Research Association

      Sarah Catherine Moore, Arizona State University

      Jill Kerper Mora, San Diego State University

      Judith H. Munter, University of Texas at El Paso

      Janet L. Nicol University of Arizona

      Silvia C. Noguerón, Arizona State University

      Alberto M. Ochoa, San Diego State University

      Carlos J. Ovando, Arizona State University

      Chanyoung Park, Arizona State University

      Gregory Pearson, George Washington University

      Bertha Pérez, University of Texas at San Antonio

      John Petrovic, University of Alabama

      Alicia Pousada, University of Puerto Rico

      Chang Pu, University of Texas at San Antonio

      Victor R. Quiñones Guerra, Teachers College, Columbia University

      Luis Xavier Rangel-Ortiz, University of Texas at San Antonio

      Iliana Reyes, University of Arizona

      Luis O. Reyes, Lehman College, City University of New York

      Roger L. Rice, Multicultural Education Training and Advocacy, Inc.

      Ana Roca, Florida International University

      M. Victoria Rodríguez, Lehman College, City University of New York

      Mariela A. Rodríguez, University of Texas at San Antonio

      Rodolfo Rodríguez, University of North Texas

      Kellie Rolstad, Arizona State University

      Mary Eunice Romero-Little, Arizona State University

      Peter D. Roos, Multicultural Education Training and Advocacy, Inc. (ret.)

      Irma Rosas, University of Texas at San Antonio

      Stefan M. Rosenzweig, California State University, Long Beach

      Olga Gloria Rubio, California State University, Long Beach

      Richard Ruiz, University of Arizona

      Malena Salazar, University of Texas at San Antonio

      María Teresa Sánchez, Education Development Center, Inc.

      Patricia Sánchez, University of Texas at San Antonio

      Guadalupe San Miguel, Jr., University of Houston

      Marietta Saravia-Shore, Lehman College, City University of New York

      Peter Sayer, University of Texas at San Antonio

      María M. Seidner, Texas Education Agency (ret.)

      Kathryn Singh, Instituto Tecnológico y de Estudios Superiores de Monterrey

      Cary Stacy Smith, Mississippi State University

      Howard L. Smith, University of Texas at San Antonio

      Karen Smith, Arizona State University

      Michaela Steele, University of Texas at San Antonio

      Debra Suárez, College of Notre Dame

      Koyin Sung, University of Texas at San Antonio

      Elsie M. Szecsy, Arizona State University

      Yun Teng, Arizona State University

      Josefina V. Tinajero, University of Texas at El Paso

      Roberto Tinajero II, University of Texas at El Paso

      Robert Toonkel, U.S. English, Inc.

      Rudolph C. Troike, University of Arizona

      Armando L. Trujillo, University of Texas at San Antonio

      Pei Ju Tsai, Columbia University

      G. Richard Tucker, Carnegie Mellon University

      Guadalupe Valdés, Stanford University

      Abelardo Villarreal, Intercultural Development Research Association

      Dennis Viri, Arizona State University

      Larisa Warhol, Arizona State University

      Miku Watanabe, Arizona State University

      Terrence G. Wiley, Arizona State University

      Wayne E. Wright, University of Texas at San Antonio

      Hsiaoping Wu, University of Texas at San Antonio

      Nancy F. Zelasko, George Washington University

      Jingning Zhang, Arizona State University

      Introduction

      An appropriate way to open an encyclopedia of bilingual education is to define the term in brief. The simplest definition is that bilingual education is the use of two languages in the teaching of curriculum content in K-12 schools. This definition is most germane to the United States, the country that is the focus of this encyclopedia. Other nations and cultures define bilingual education differently. There is an important difference to keep in mind relative to bilingual education on the one hand and the study of foreign languages as school subjects on the other. In bilingual education, two languages are used for instruction, and the goal is academic success in and through the two languages. The traditional model of foreign-language study places the emphasis on the acquisition of the languages themselves. Several entries in this encyclopedia describe emerging efforts to bring these two segments of the language-teaching world into a more unified effort.

      Design of the Project

      The task of assembling this encyclopedia of bilingual education in the United States was complex because the material does not come from a single discipline. It is embedded in several domains of knowledge: applied linguistics, politics, civil rights, various versions of historical events, and of course, classroom instruction. Procedurally, with the help of a small but enthusiastic editorial board and doctoral students, we began by developing an initial list of headwords that encompassed a cross section of relevant information from all of these fields and others. The result was a listing of over 300 discrete topics. We then organized the topics into several categories focused on the following:

      • Family, Communities, and Society
      • History
      • Instructional Designs
      • Languages and Linguistics
      • People and Organizations
      • Policy Evolution
      • Related Social Sciences
      • Teaching and Learning

      In the front matter of the encyclopedia, readers will find a List of Entries, with all topics organized alphabetically, as well as a Reader's Guide, with topics organized by category.

      A work of this type requires a huge storehouse of knowledge and experience and a common desire to package information in particular ways. An important function of the general editor is to search for and mobilize those who have the knowledge and convince them to share it in this way. Although most of the contributors are university people, they all agreed to dispense with the academic writing style they commonly use and instead employ a style intended to communicate the information to a wide readership. Having worked for more than 40 years in this field, I had personally experienced many of the trends and events on the initial list. I had also met many of the people who helped to shape the field from the beginning. More recently, I have been privileged to be part of the faculty of the Mary Lou Fulton College of Education at Arizona State University (ASU), home to an exquisite cadre of experts on literacy, English as a second language, policy, and bilingual education. I called on these friends and colleagues to pitch in, and they did so with gusto.

      After an initial schema was put on paper outlining the corpus of work by category and title, the list was circulated to colleagues around the country who made suggestions for additions, deletions, and alternative ways of parsing and organizing the topics. Most of these reviewers were pleased to critique the list and volunteered themselves or others to prepare entries. With this high level of help and support, locating contributors to write the entries was not difficult.

      Contributors

      The editorial board and I made a decision early on that we wanted this work to be a mix of contributions by seasoned scholars and researchers on the one hand and, on the other, promising doctoral students who might someday be listed as leading scholars themselves. We wanted the work of writing and rewriting to be another learning experience for these junior colleagues. We often paired up a senior person with one of his or her graduate students to review the entry and early drafts. Several contributors commented that the process felt somewhat like a “handing off” by senior people to those who will follow them in this work. The high quality of the results validates this intergenerational approach.

      More than 150 authors wrote for the project. I thank them all for their diligent work and for helping us bring in the project on schedule. The graduate students and their mentors alike approached the task of preparing entries with enthusiasm. Several told us of their desire to portray the often controversial topics even-handedly. Recognizing that loose rhetoric has clouded some aspects of bilingual education over the years, faculty members and editorial board members worked with entry writers to avoid the conceptual traps, assumptions, and easy generalizations that sometimes plague a complex and controversial field such as this. Drafts were reviewed with a view to shaping the entries so as to be helpful to a wide array of users.

      Purpose and Content

      As general editor, I often asked writers to picture who might use the book and under what circumstances. Imagine, I suggested, a young journalist rushing breathlessly to the reference librarian's desk and asking the best starting point to learn about some aspect of bilingual education in order to complete a story on deadline. The librarian suggests our encyclopedia for its design because, more or less uniformly, the entries give enough information, in a compact way, to allow this user to draft an outline for his assignment. The lists of Further Readings at the end of each entry allow the user to dig deeper into specific subtopics as needed. In effect, the Further Readings serve the user as a vertical expansion of the first entry they consult. The cross-references allow for an equivalent horizontal articulation by listing other entries in the book the user might find valuable. By reading two or three additional entries from among those listed in the cross-references, our young journalist would be able to draft his story. Finally, by selecting from the recommended readings, an in-depth look is possible within a short time.

      Most of the entries in this encyclopedia are straightforward informational pieces without editorial comment. Other entries would be of little interest, and hardly credible, if they did not reflect the fact that the field of bilingual education is dynamic, controversial, and subject to multiple perceptions of reality. Ignoring these aspects of the field would be a disservice to the end user. We chose to take note of these dynamics and point out where they live: in schools, research centers, legislative bodies, advocacy organizations, and families.

      Nature of the Work

      This encyclopedia was not designed to push the envelope of new knowledge. We leave that function to the academic journals and scholarly books in which research and new insights are usually reported. The function of this encyclopedia is to collect and synthesize the knowledge base that is already well accepted and that has been well researched both in the United States and abroad. A handful of entries, however, go beyond the requirements of mere information giving. A small number of distinguished specialists in the field were invited to prepare entries that combine information with expert opinion or advocacy positions. The result is a group of very special entries that round out the history and current status of bilingual education in the United States with commentary on particular contexts, situations, and developments. We believe these additions to the informational content of most entries may help the reader reflect on the matrix in which bilingual education is embedded. These items are identified with a note accompanying the entries.

      Readers are reminded that this work is a compendium of information on bilingual education and related topics in the United States. While bilingual education in this country is not completely unique, the context in which it has evolved does reflect an “American way” of thinking about languages and education and the relationship between the two. I made the judgment that greater clarity and focus on the U.S. context might be gained through an international perspective. In particular, the entries by Colin Baker, Ofelia García, Betty Merchant and Michaela Steele, and Richard Ruiz provide such international insights, while keeping a sharp focus on the U.S. context.

      Readers should also understand how topics may be presented elsewhere. The encyclopedia contains many Spanish words and proper names, some of which require diacritical markings such as the acute accent over vowels. The ñ also makes an appearance in various places. In Spanish, these are conventions of spelling and so we have followed them here. In English, however, they may not be used consistently and create problems in Internet searches. If a search for accented words on the Internet or in a digital database fails to return results, repeat the search without the accents or type n instead of ñ as needed. Our apologies, but this is the state of the art at the moment.

      Acknowledgments

      There were many persons at Arizona State University and elsewhere who contributed in important ways to the content, spirit, and logic of this project. I am especially appreciative of the work of the editorial board. Terrence Wiley, Wayne Wright, and Nancy Zelasko were superb collaborators. The simple but honest explanation of their contributions is that the work would have never been done without their keen understanding of the task and its possibilities, as well as their willingness to write, edit, recruit authors, and gently berate those who took too long to complete assignments.

      Even with wonderful Internet researchers willing to help, the task of checking all facts and citations in over 300 entries is daunting. That was my responsibility. If any facts got by me with less than total accuracy, it was my omission and not that of the authors.

      In the Southwest Center for Education Equity and Language Diversity, where I work, several persons deserve special mention for their work behind the scenes. Silvia Noguerón and Gerda de Klerk shared the job of managing editors, responsible for the flow and early reading of entries. By the time the project approached completion, Silvia had become a trusted editor in English, her own second language. Pauline Stark, my administrative associate, demonstrated that she can also do a mean job of proofreading and tightening up of loose text. In her usual quiet way, Elsie Szecsy periodically asked how she could help. She would usually walk away with additional work, which she completed efficiently. Lani Asturias left before the project was complete, but during her stay served as the Internet connection, doing biographic and bibliographic fact-checking. Ha Lam went away to join her husband in Alaska, but not before writing and editing an important set of entries. My debt of gratitude to these fine coworkers is enormous.

      I was especially pleased that in a work devoted to bilingual education, speakers of many languages were involved. In the Center alone we had representation from native speakers of Afrikaans, Chinese, Korean, Spanish, and Tagalog. The blending of accents was a daily reminder that bilingual education exists because the United States has become a microcosm of the linguistic world. Among our faculty colleagues, languages too numerous to name were represented. Most important, it was the delight that everyone took in this polyglot place that made us smile as we worked. A special note of gratitude is owed to our interim Dean of Education, Sarah Hudelson, who not only supported the project in every way possible; she also rolled up her own sleeves to write important entries.

      Finally, I wish to acknowledge the facilitating role played by the Sage reference staff every step of the way, from our first contact with the acquisitions editor, Diane McDaniel; to developmental editors Sara Tauber and Sanford Robinson; our technology specialist, Leticia Gutiérrez; reference systems coordinator Laura Norton; the books production team, led by Kate Schroeder; and the copyediting team, Carla Freeman and Robin Gold. They are outstanding professionals, ever ready to help a beleaguered editor. For that, I humbly thank them.

      Josué M. González
    • Appendix A: Policy Landmarks in U.S. Bilingual Education

      1923—Meyer v. Nebraska decided by the U.S. Supreme Court (262 U.S. 390). The Court overturned a Nebraska state law that made it illegal for schools, private and public, to teach in any language other than English. The case involved a private school in which a teacher used a German Bible to teach reading. Meyer affirmed English as the primary language of instruction in Nebraska. It also held that elective learning, in this case learning a language, is among the rights protected, implicitly, by the Constitution.

      1927—Farrington v. Tokushiga, decided by the U.S. Supreme Court (273 U.S. 298). This U.S. Supreme Court ruling struck down excessive regulation of private nonsectarian schools by the territorial legislature of Hawai'i prior to it becoming a state. The major issue in the case was the degree of parental control of the curricula in private schools. The court overturned the level of regulation over private, nonsectarian schools, finding it to be excessive, including the requirement that the curricula must be in English. In striking down the law and regulations, the Court found that a high degree of regulation was an unreasonable intrusion and that parents can legally exercise greater control over their children's education through curriculum choices.

      1958National Defense Education Act (NDEA) enacted. As a reaction to the launching of the Soviet Union's satellite, Sputnik, the U.S. government made substantial funding available to promote the teaching of modern languages. The driving motivation was to overtake the Soviet Union in space exploration. The presumed reason for the launching of a Soviet satellite ahead of the United States was better education in Soviet schools that included greater emphasis on the study of mathematics, science, and modern languages.

      1960Cuban refugees begin arriving in Florida after Fidel Castro's takeover. The arrival of refugees in Florida helped establish bilingual education programs at Coral Way and Coral Gables elementary schools. Their objective was to preserve the Spanish language in anticipation of their eventual return to Cuba. The Ford Foundation and the U.S. government provided funding to support these language preservation efforts.

      1964Congress enacts the Civil Rights Act (CRA). This law was meant to protect the rights of racial and ethnic minorities. Title VI of the act became a powerful tool for fighting discrimination cases because it eliminated the necessity to prove intent to discriminate, as required by the Fourteenth Amendment's Equal Protection Clause. Although CRA was subsequently eroded by an increasingly conservative Court, it was vitally important in the last quarter of the 20th century, in civil rights litigation.

      1965Congress passes the Elementary and Secondary Education Act (ESEA). This was the first piece of legislation providing major funding for K-12 schools. Title I, aimed at better serving the nation's poor, was the largest of the various parts of the act. It was meant to leverage improvements in the education of minorities and the poor. There were no earmarks or set-asides for bilingual education in the original ESEA, but the act sparked interest in creating a possible federal role to assist children and youth who were not fluent in English.

      1966The National Education Association (NEA) sponsors a national conference in Tucson, Arizona. This conference focused on the needs of the Spanish-surnamed population of the country. The primary theme of the conference was bilingual education and other programs aimed at resolving the “language barrier” faced by non-English-speaking students. NEA's involvement helped raise the visibility of this issue in professional educator circles.

      1968Congress enacts Title VII of the ESEA, the Bilingual Education Act. This addition to the Elementary and Secondary Education Act of 1965 had several goals for the development and implementation of bilingual education in U.S. schools. Funding from this source included research, teacher training programs, technical assistance centers, and fellowships for graduate students. In its heyday, Title VII, ESEA, was the largest funding source for bilingual education. With the passage of the No Child Left Behind Act of 2001 (NCLB), Title VII was not reauthorized and discretionary funding for bilingual education by the federal government ended almost entirely. NCLB focused on English language instruction without a home language component.

      1972Massachusetts becomes the first state to enact legislation to support transitional bilingual education in K-12 for English language learners. The Massachusetts legislation inaugurated the use of the term transitional to signal the use of the home language for limited purposes. The term gained wide currency as other states adopted the Massachusetts legislative model to their own needs.

      1974U.S. Supreme Court rules on Lau v. Nichols (414 U.S. 563). This case was brought by Chinese families against the San Francisco schools. Plaintiffs alleged that San Francisco Unified School District violated Title VI of the Civil Rights Act by failing to teach English effectively to these children and subsequently requiring that the children pass a high-stakes graduation test in that language. The High Court overturned a lower-court decision favoring the school district and ruled that schools must take “affirmative steps to open their instructional program” to all students. Lau v. Nichols did not mandate bilingual education but acknowledged that a bilingual approach is one of the options available for complying with Title VI.

      1974Enactment of the Equal Educational Opportunity Act (EEOA). This legislation codified the findings of Lau v. Nichols into federal law. Since the weight of Lau v. Nichols and the authority of Title VI of the Civil Rights Act were diminished by subsequent cases decided by the Supreme Court, the EEOA, which prohibits states from denying equal educational opportunity to all students, has become an important tool for suits against school districts in cases similar to Lau.

      1981—Castañeda v. Pickard decided by U.S. Court of Appeals (648 F.2d 989 5th Cir). A South Texas school district was ordered to adopt an instructional program that satisfied the requirements of Lau v. Nichols and Title VI of the Civil Rights Act. The process ordered by the court, now widely known as “the Castañeda three-part test,” was subsequently adopted by the Office for Civil Rights of the U.S. Department of Education as a template to judge the adequacy of compliance efforts throughout the country. It constitutes current Lau enforcement policy.

      1981Education Consolidation and Improvement Act (Part of Public Law 97–35) enacted to create block grants in education. The act consolidated 42 funding programs, most of them discretionary grant programs, into 7 block grants that would allow funds to flow directly to state education agencies or to school districts on the basis of formulas. This obviated the need for competitive program proposals to access federal funds. Title VII of the ESEA was among the 7 programs that were not consolidated at this time.

      1982—Plyler v. Doe decided by U.S. Supreme Court (457 U.S. 202). The Supreme Court held that public schools are prohibited from denying immigrant children access to public education. According to Plyler, undocumented children have the same right to a free public education as the children of citizens and permanent residents. The decision also requires that undocumented students obey mandatory attendance laws of the states and remain in school until they reach the age mandated by such laws.

      1991Native American Language Preservation Act passed. Through this legislation, the federal government provides funding to assist Native American peoples to teach and learn their ancestral languages. Previous government actions, such as the creation of Indian boarding schools, contributed to the erosion of native languages among Native American children and youth.

      2002—No Child Left Behind (NCLB) Act enacted by Congress. The act replaced the Elementary and Secondary Education Act of 1965 and the Education Consolidation and Improvement Act of 1981. The legislation seeks to increase accountability by schools and school districts by imposing a stringent testing program before students may graduate from high school. It threatens penalties for schools in which students fail to make “adequate yearly progress.” Critics charge that taken together, these provisions place the burden of accountability on students rather than on failed policies and practices. NCLB ended the practice of discretionary funding to school districts for bilingual education. It allots the bulk of K-12 federal funds to state departments of education to use at their discretion.

      1998/2002Antibilingual education voter initiatives approved in three states. Under the slogan of “English for the Children,” Arizona, California, and Massachusetts approved initiatives severely curtailing bilingual education in the public schools of those states. A similar measure failed at the polls in Colorado. Yet another failed to be included on the ballot in New York. (Note: Most states do not have provisions in their constitutions that permit voter initiatives and referenda.)

      2006Report of the National Literacy Panel on Language Minority Children and Youth. This study, financed by the U.S. Department of Education, assessed the value, impact, and effectiveness of various components and approaches to the education of English language learners. The National Literacy Panel was made up of leading authorities in the field appointed by the Education Sciences Institute, an arm of the U.S. Department of Education. The study reported favorably on the use of bilingual instructional methods. Inexplicably, the U.S. Department of Education refused to issue the panel's report. After a 2-year delay, the panel's report was published by the contractor through a commercial publisher.

      2006—National Security Language Initiative announced by President George W. Bush. This initiative was designed to promote the teaching of languages needed for national security by civilian agencies and the military. Only small levels of funding under this initiative were directed toward public schools. Most of the funds were used to support programs in the military and in national security agencies.

      Appendix B: Title VII, Elementary and Secondary Education Act of 1968

      Title VII—Bilingual Education Programs
      Findings of Congress

      Sec. 701. The Congress hereby finds that one of the most acute educational problems in the United States is that which involves millions of children of limited English-speaking ability because they come from environments where the dominant language is other than English; that additional efforts should be made to supplement present attempts to find adequate and constructive solutions to this unique and perplexing educational situation; and that the urgent need is for comprehensive and cooperative action now on the local, State, and Federal levels to develop forward-looking approaches to meet the serious learning difficulties faced by this substantial segment of the Nation's school-age population.

      Amendment to Elementary and Secondary Education Act of 1965

      Sec. 702. The Elementary and Secondary Education Act of 1965 is amended by redesignating title VII as title VIII, by redesignating Sections 701 through 707 and references thereto as Sections 801 through 807, respectively, and by inserting after title VI the following new title:

      “Title VII—Bilingual Education Programs
      “Short Title

      “Sec. 701. This title may be cited as the ‘Bilingual Education Act’.

      “Declaration of Policy

      “Sec. 702. In recognition of the special educational needs of the large numbers of children of limited English-speaking ability in the United States, Congress hereby declares it to be the policy of the United States to provide financial assistance to local educational agencies to develop and carry out new and imaginative elementary and secondary school programs designed to meet these special educational needs. For the purposes of this title, ‘children of limited English-speaking ability’ means children who come from environments where the dominant language is other than English.

      “Authorization and Distribution of Funds

      “Sec. 703. (a) For the purposes of making grants under this title, there is authorized to be appropriated the sum of $15,000,000 for the fiscal year ending June 30, 1968, $30,000,000 for the fiscal year ending June 30, 1969, and $40,000,000 for the fiscal year ending June 30, 1970.

      “(b) In determining distribution of funds under this title, the Commissioner shall give highest priority to States and areas within States having the greatest need for programs pursuant to this title. Such priorities shall take into consideration the number of children of limited English-speaking ability between the ages of three and eighteen in each State.

      “Uses of Federal Funds

      “Sec. 704. Grants under this title may be used, in accordance with applications approved under section 705, for—

      • planning for and taking other steps leading to the development of programs designed to meet the special educational needs of children of limited English-speaking ability in schools having a high concentration of such children from families (A) with incomes below $3,000 per year, or (B) receiving payments under a program of aid to families with dependent children under a State plan approved under title IV of the Social Security Act, including research projects, pilot projects designed to test the effectiveness of plans so developed, and the development and dissemination of special instructional materials for use in bilingual education programs; and
      • providing preservice training designed to prepare persons to participate in bilingual education programs as teachers, teacher-aides, or other ancillary education personnel such as counselors, and in-service training and development programs designed to enable such persons to continue to improve their qualifications while participating in such programs; and
      • the establishment, maintenance, and operation of programs, including acquisition of necessary teaching materials and equipment, designed to meet the special educational needs of children of limited English-speaking ability in schools having a high concentration of such children from families (A) with incomes below $3,000 per year, or (B) receiving payments under a program of aid to families with dependent children under a State plan approved under title IV of the Social Security Act, through activities such as
        • bilingual education programs;
        • programs designed to impart to students a knowledge of the history and culture associated with their languages;
        • efforts to establish closer cooperation between the school and the home;
        • early childhood educational programs related to the purposes of this title and designed to improve the potential for profitable learning activities by children;
        • adult education programs related to the purposes of this title, particularly for parents of children participating in bilingual programs;
        • programs designed for dropouts or potential dropouts having need of bilingual programs;
        • programs conducted by accredited trade, vocational, or technical schools; and
        • other activities which meet the purposes of this title.
      “Applications for Grants and Conditions for Approval

      “Sec. 705. (a) A grant under this title may be made to a local educational agency or agencies, or to an institution of higher education applying jointly with a local educational agency, upon application to the Commissioner at such time or times, in such manner and containing or accompanied by such information as the Commissioner deems necessary. Such application shall—

      • provide that the activities and services for which assistance under this title is sought will be administered by or under the supervision of the applicant;
      • set forth a program for carrying out the purpose set forth in section 704 and provide for such methods of administration as are necessary for the proper and efficient operation of the program;
      • set forth a program of such size, scope, and design as will make a substantial step toward achieving the purpose of this title;
      • set forth policies and procedures which assure that Federal funds made available under this title for any fiscal year will be so used as to supplement and, to the extent practicable, increase the level of funds (including funds made available under title I of this Act) that would, in the absence of such Federal funds, be made available by the applicant for the purposes described in section 704, and in no case supplant such funds;
      • provide for such fiscal control and fund accounting procedures as may be necessary to assure proper disbursement of and accounting for Federal funds paid to the applicant under this title;
      • provide for making an annual report and such other reports, in such form and containing such information, as the Commissioner may reasonably require to carry out his functions under this title and to determine the extent to which funds provided under this title have been effective in improving the educational opportunities of persons in the area served, and for keeping such records and for affording such access thereto as the Commissioner may find necessary to assure the correctness and verification of such reports;
      • provide assurance that provision has been made for the participation in the project of those children of limited English-speaking ability who are not enrolled on a full-time basis; and
      • provide that the applicant will utilize in programs assisted pursuant to this title the assistance of persons with expertise in the educational problems of children of limited English-speaking ability and make optimum use in such programs of the cultural and educational resources of the area to be served; and for the purposes of this paragraph, the term ‘cultural and educational resources’ includes State educational agencies, institutions of higher education, nonprofit private schools, public and nonprofit private agencies such as libraries, museums, musical and artistic organizations, educational radio and television, and other cultural and educational resources.

      “(b) Applications for grants under title may be approved by the Commissioner only if—

      • the application meets the requirements set forth in subsection (a);
      • the program set forth in the application is consistent with criteria established by the Commissioner (where feasible, in cooperation with the State educational agency) for the purpose of achieving an equitable distribution of assistance under this title within each State, which criteria shall be developed by him on the basis of a consideration of (A) the geographic distribution of children of limited English-speaking ability, (B) the relative need of persons in different geographic areas within the State for the kinds of services and activities described in paragraph (c) of section 704, and (C) the relative ability of particular local educational agencies within the State to provide those services and activities;
      • the Commissioner determines (A) that the program will utilize the best available talents and resources and will substantially increase the educational opportunities for children of limited English-speaking ability in the area to be served by the applicant, and (B) that, to the extent consistent with the number of children enrolled in nonprofit private schools in the area to be served whose educational needs are of the type which this program is intended to meet, provision has been made for participation of such children; and
      • the State educational agency has been notified of the application and been given the opportunity to offer recommendations.

      “(c) Amendments of applications shall, except as the Commissioner may otherwise provide by or pursuant to regulations, be subject to approval in the same manner as original applications.

      “Payments

      “Sec. 706. (a) The Commissioner shall pay to each applicant which has an application approved under this title an amount equal to the total sums expended by the applicant under the application for the purposes set forth therein.

      “(b) Payments under this title may be made in installments and in advance or by way of reimbursement, with necessary adjustments on account of overpayments or underpayments.

      “Advisory Committee

      “Sec. 707. (a) The Commissioner shall establish in the Office of Education an Advisory Committee on the Education of Bilingual Children, consisting of nine members appointed, without regard to the civil service laws, by the Commissioner with the approval of the Secretary. The Commissioner shall appoint one such member as Chairman. At least four of the members of the Advisory Committee shall be educators experienced in dealing with the educational problems of children whose native tongue is a language other than English.

      “(b) The Advisory Committee shall advise the Commissioner in the preparation of general regulations and with respect to policy matters arising in the administration of this title, including the development of criteria for approval of applications thereunder. The Commissioner may appoint such special advisory and technical experts and consultants as may be useful and necessary in carrying out the functions of the Advisory Committee.

      “(c) Members of the Advisory Committee shall, while serving on the business of the Advisory Committee, be entitled to receive compensation at rates fixed by the Secretary, but not exceeding $100 per day, including travel time; and while so serving away from their homes or regular places of business, they may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5 of the United States Code for persons in the Government service employed intermittently.

      “Labor Standards

      “Sec. 708. All laborers and mechanics employed by contractors or subcontractors on all minor remodeling projects assisted under this title shall be paid wages at rates not less than those prevailing on similar minor remodeling in the locality as determined by the Secretary of Labor in accordance with the Davis-Bacon Act, as amended (40 U.S.C. 276a-276a-5). The Secretary of Labor shall have, with respect to the labor standards specified in this section, the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 and section 2 of the Act of June 13, 1934, as amended (40 U.S.C. 276c).”

      Conforming Amendments

      Sec. 703. (a) That part of section 801 (as so redes-ignated by section 702 of this Act) of the Elementary and Secondary Education Act of 1965 which precedes clause (a)7 is amended by striking out “and VI” and inserting in lieu thereof “VI, and VII”.

      (b) Clause (j) of such section 801 as amended by this Act8 is further amended by striking out “and VI” and inserting in lieu thereof “VI, and VII”.

      Amendments to Title V of the Higher Education Act of 1965

      Sec. 704. (a) The third sentence of section 521 of the Education Professions Development Act (title V of the Higher Education Act of 1965)9 is amended (1) effective for the fiscal year ending June 30, 1968 only, by inserting after “a career of teaching in elementary or secondary schools” a new phrase as follows: “a career of teaching children of limited English-speaking ability”, and (2) effective with respect to subsequent fiscal years, by inserting “and including teaching children of limited English-speaking ability” after “including teaching in preschool and adult and vocational education programs”.

      (b) Effective for the fiscal year ending June 30, 1968, only, section 522(a) of such Act10is amended by striking out “ten thousand fellowships for the fiscal year ending June 30, 1968” and inserting in lieu thereof “eleven thousand fellowships for the fiscal year ending June 30, 1968”.

      (c) (1) Section 628 of such Act11 is amended, effective with respect to fiscal years ending after June 30, 1967, by striking out “$275,000,000” and inserting in lieu thereof “$285,000,000” striking out “$195,000,000” and inserting in lieu thereof “$205,000,000” striking out “$240,000,000” and inserting in lieu thereof “$250,000,000” and striking out “July 1, 1968” and inserting in lieu thereof “July 1, 1970”.

      (2) The amendments made by this subsection shall, notwithstanding section 9(a) of Public Law 90–35, be effective with regard to fiscal years beginning after June 30, 1967.

      (d) Section 531(b) of such Act12 is amended by redesignating clauses (8) and (9) thereof as clauses (9) and (10), respectively, and by inserting immediately after clause (7) the following new clause:

      “(8) programs or projects to train or retrain persons engaging in special educational programs for children of limited English-speaking ability”.

      Amendments to Title XI of the National Defense Education Act of 1958

      Sec. 705. (a) Section 1101 of the National Defense Education Act of 1958 is amended by striking out “and for each of the two succeeding fiscal years” and inserting in lieu thereof “and for the succeeding fiscal year and $51,000,000 for the fiscal year ending June 30,1968”.

      (b) Such section is further amended by striking out the period at the end of clause (3) and inserting in lieu thereof a comma and the word “or”, and by inserting after such clause a new clause as follows.

      “(4) who are engaged in or preparing to engage in special educational programs for children of limited English-speaking ability.”

      Amendments to Cooperative Research Act

      Sec. 706. Subsections (a) and (b) of section 2 of the Cooperative Research Act 14 are each amended by inserting “and title VII” after “section 503(a) (4)”.

      Approved January 2, 1968.

      720 U.S.C.A. § 881.

      820 U.S.C.A. § 881(1)

      920 U.S.C.A. § 1111.

      1020 U.S.C.A. § 1112(a).

      1120 U.S.C.A. § 1118.

      1220 U.S.C.A. § 1119.

      Appendix C: <span class="hi-italic">Lau v. Nichols</span> and Related Documents

      Department of Health, Education, and Welfare

      Office of the Secretary, Washington, D.C.

      May 25, 1970

      Memorandum

      TO: School Districts With More Than Five Percent National Origin-Minority Group Children

      FROM: J. Stanley Pottinger, Director, Office for Civil Rights

      SUBJECT: Identification of Discrimination and Denial of Services on the Basis of National Origin

      Title VI of the Civil Rights Act of 1964 and the Departmental Regulation (45 CFR Part 80) promulgated thereunder require that there be no discrimination on the basis of race, color or national origin in the operation of any federally assisted programs.

      Title VI compliance reviews conducted in school districts with large Spanish-surnamed student populations by the Office for Civil Rights have revealed a number of common practices which have the effect of denying equality of educational opportunity to Spanish-surnamed pupils. Similar practices which have the effect of discrimination on the basis of national origin exist in other locations with respect to disadvantaged pupils from other national origin-minority groups, for example, Chinese or Portuguese.

      The purpose of this memorandum is to clarify DHEW policy on issues concerning the responsibility of school districts to provide equal educational opportunity to national origin minority group children deficient in English language skills. The following are some of the major areas of concern that relate to compliance with Title VI:

      • 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 its instructional program to these students.
      • School districts must not assign national origin-minority group students to classes for the mentally retarded on the basis of criteria which essentially measure or evaluate English language skills; nor may school districts deny national origin-minority group children access to college preparatory courses on a basis directly related to the failure of the school system to inculcate English language skills.
      • Any ability grouping or tracking system employed by the school system to deal with the special language skill needs of national origin-minority group children must be designed to meet such language skill needs as soon as possible and must not operate as an educational dead-end or permanent track.
      • School districts have the responsibility to adequately notify national origin-minority group parents of school activities which are called to the attention of other parents. Such notice in order to be adequate may have to be provided in a language other than English.

      School districts should examine current practices which exist in their districts in order to assess compliance with the matters set forth in this memorandum. A school district which determines that compliance problems currently exist in that district should immediately communicate in writing with the Office for Civil Rights and indicate what steps are being taken to remedy the situation. Where compliance questions arise as to the sufficiency of programs designed to meet the language skill needs of national origin-minority group children already operating in a particular area, full information regarding such programs should be provided. In the area of special language assistance, the scope of the program and the process for identifying need and the extent to which the need is fulfilled should be set forth.

      School districts which receive this memorandum will be contacted shortly regarding the availability of technical assistance and will be provided with any additional information that may be needed to assist districts in achieving compliance with the law and equal educational opportunity for all children. Effective as of this date the aforementioned areas of concern will be regarded by regional Office for Civil Rights personnel as a part of their compliance responsibilities.

      Source: U.S. Department of Education. (2005). DHEW Memo Regarding Language Minority Children. Available: http://www.ed.gov/about/offices/list/ocr/docs/laul970.html

      Syllabus Supreme Court of the United States

      414 U.S. 563

      Lau v. Nichols

      Certiorari to the united States Court of Appeals for the Ninth Circuit

      No. 72–6520

      Argued: December 10, 1973

      Decided: January 21, 1974

      The failure of the San Francisco school system to provide English language instruction to approximately 1,800 students of Chinese ancestry who do not speak English, or to provide them with other adequate instructional procedures, denies them a meaningful opportunity to participate in the public educational program, and thus violates § 601 of the Civil Rights Act of 1964, which bans discrimination based “on the ground of race, color, or national origin,” in “any program or activity receiving Federal financial assistance,” and the implementing regulations of the Department of Health, Education, and Welfare. Pp. 565–569.

      483 F2d 791, reversed and remanded.

      Edward H. Steinman argued the cause for petitioners. With him on the brief were Kenneth Hecht and David C. Moon.

      Thomas M. O'Connor argued the cause for the respondents. With him on the brief were George E. Krueger and Burk E. Delventhal.

      Assistant Attorney General Pottinger argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Bork, Deputy Solicitor General Wallace, Mark L. Evans, and Brian K. Landsberg. ∗

      DOUGLAS, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, POWELL, and REHNQUIST, J., joined. STEWART, J., filed an opinion concurring in the result, in which BURGER, C. J., and BLACKMUN, J., joined, post, p. 569. WHITE, J., concurred in the result. BLACKMUN, J., filed an opinion concurring in the result, in which BURGER, C. J., joined, post, p. 571.

      DOUGLAS, J., Opinion of the Court

      MR. JUSTICE DOUGLAS delivered the opinion of the Court.

      The San Francisco, California, school system was integrated in 1971 as a result of a federal court decree, 339 F. supp. 1315. See Lee v. Johnson, 404 U.S. 1215. The District Court found that there are 2,856 students of Chinese ancestry in the school system who do not speak English. Of those who have that language deficiency, about 1,000 are given supplemental courses in the English language.1 About 1,800, however, do not receive that instruction.

      This class suit brought by non-English-speaking Chinese students against officials responsible for the operation of the San Francisco Unified School District seeks relief against the unequal educational opportunities, which are alleged to violate, inter alia, the Fourteenth Amendment. 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.

      The District Court denied relief. The Court of Appeals affirmed, holding that there was no violation of the Equal Protection Clause of the Fourteenth Amendment or of § 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d which excludes from participation in federal financial assistance, recipients of aid which discriminate against racial groups, 483 F.2d 791. One judge dissented. A hearing en banc was denied, two judges dissenting. Id. at 805.

      We granted the petition for certiorari because of the public importance of the question presented, 412 U.S. 938.

      The Court of Appeals reasoned that

      [e]very student brings to the starting line of his educational career different advantages and disadvantages caused in part by social, economic and cultural background, created and continued completely apart from any contribution by the school system. (483 F.2d at 797.)

      Yet, in our view, the case may not be so easily decided. This is a public school system of California, and §71 of the California Education Code states that “English shall be the basic language of instruction in all schools.” That section permits a school district to determine “when and under what circumstances instruction may be given bilingually.” That section also states as “the policy of the state” to insure “the mastery of English by all pupils in the schools.” And bilingual instruction is authorized “to the extent that it does not interfere with the systematic, sequential, and regular instruction of all pupils in the English language.”

      Moreover, § 8573 of the Education Code provides that no pupil shall receive a diploma of graduation from grade 12 who has not met the standards of proficiency in “English,” as well as other prescribed subjects. Moreover, by § 12101 of the Education Code (Supp. 1973), children between the ages of six and 16 years are (with exceptions not material here) “subject to compulsory full-time education.”

      Under these state-imposed standards, 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.

      Basic English skills are at the very core of what these public schools teach. Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired those basic skills is to make a mockery of public education. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful.

      We do not reach the Equal Protection Clause argument which has been advanced, but rely solely on § 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d to reverse the Court of Appeals.

      That section bans discrimination based “on the ground of race, color, or national origin,” in “any program or activity receiving Federal financial assistance.” The school district involved in this litigation receives large amounts of federal financial assistance. The Department of Health, Education, and Welfare (HEW), which has authority to promulgate regulations prohibiting discrimination in federally assisted school systems, 42 U.S.C. § 2000d-l, in 1968 issued one guideline that

      [s]chool systems are responsible for assuring that students of a particular race, color, or national origin are not denied the opportunity to obtain the education generally obtained by other students in the system. (33 Fed.Reg. 4956.)

      In 1970, HEW made the guidelines more specific, requiring school districts that were federally funded “to rectify the language deficiency in order to open” the instruction to students who had “linguistic deficiencies,” 35 FedReg. 11595.

      By § 602 of the Act, HEW is authorized to issue rules, regulations, and orders2 to make sure that recipients of federal aid under its jurisdiction conduct any federally financed projects consistently with § 601. HEW's regulations, 45 CFR § 80.3(b)(1), specify that the recipients may not:

      • Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program; ….
      • Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program.

      Discrimination among students on account of race or national origin that is prohibited includes “discrimination … in the availability or use of any academic … or other facilities of the grantee or other recipient.” Id, § 80.5(b).

      Discrimination is barred which has that effect even though no purposeful design is present: a recipient “may not … utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination” or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin. Id. § 80.3(b)(2).

      It seems obvious that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from respondents' school system, which denies them a meaningful opportunity to participate in the educational program—all earmarks of the discrimination banned by the regulations.3 In 1970, HEW issued clarifying guidelines, 35 Fed.Reg. 11595, which include the following:

      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 its instructional program to these students. Any ability grouping or tracking system employed by the school system to deal with the special language skill needs of national origin minority group children must be designed to meet such language skill needs as soon as possible, and must not operate as an educational dead-end or permanent track.

      Respondent school district contractually agreed to “comply with title VI of the Civil Rights Act of 1964 … and all requirements imposed by or pursuant to the Regulation” of HEW (45 CFR pt. 80) which are “issued pursuant to that title …” and also immediately to “take any measures necessary to effectuate this agreement.” The Federal Government has power to fix the terms on which its money allotments to the States shall be disbursed. Oklahoma v. CSC, 330 U.S. 127, 142–143. Whatever may be the limits of that power, Steward Machine Co. v. Davis, 301 U.S. 548, 590 et seq., they have not been reached here. Senator Humphrey, during the floor debates on the Civil Rights Act of 1964, said:4

      Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.

      We accordingly reverse the judgment of the Court of Appeals and remand the case for the fashioning of appropriate relief.

      Reversed and remanded.

      MR. JUSTICE WHITE concurs in the result.

      ∗ Briefs of amici curiae urging reversal were filed by Stephen J. Pollak, Ralph J. Moore, Jr., David Rubin, and Peter T. Galiano for the National Education Assn. et al.; by W. Reece Bader and James R. Madison for the San Francisco Lawyers' Committee for Urban Affairs; by J. Harold Flannery for the Center for Law and Education, Harvard University; by Herbert Teitelbaum for the Puerto Rican Legal Defense and Education Fund, Inc.; by Mario G. Obledo, Sanford J. Rosen, Michael Mendelson, and Alan Exelrod for the Mexican American Legal Defense and Educational Fund et al.; by Samuel Rabinove, Joseph B. Robison, Arnold Forster, and Elliot C. Rothenberg for the American Jewish Committee et al.; by F. Raymond Marks for the Childhood and Government Project; by Martin Glick for Efrain Tostado et al.; and by the Chinese Consolidated Benevolent Assn. et al.

      1 A report adopted by the Human Rights Commission of San Francisco and submitted to the Court by respondents after oral argument shows that, as of April 1973, there were 3,457 Chinese students in the school system who spoke little or no English. The document further showed 2,136 students enrolled in Chinese special instruction classes, but at least 429 of the enrollees were not Chinese, but were included for ethnic balance. Thus, as of April 1973, no more than 1,707 of the 3,457 Chinese students needing special English instruction were receiving it.

      2 Section 602 provides: Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken …. 42 U.S.C. § 2000d-l.

      3 And see Report of the Human Rights Commission of San Francisco, Bilingual Education in the San Francisco Public Schools, Aug. 9, 1973.

      4 110 Cong.Rec. 6543 (Sen. Humphrey, quoting from President Kennedy's message to Congress, June 19, 1963).

      STEWART, J., Concurring Opinion

      MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in the result.

      It is uncontested that more than 2,800 school children of Chinese ancestry attend school in the San Francisco Unified School District system even though they do not speak, understand, read, or write the English language, and that, as to some 1,800 of these pupils, the respondent school authorities have taken no significant steps to deal with this language deficiency. The petitioners do not contend, however, that the respondents have affirmatively or intentionally contributed to this inadequacy, but only that they have failed to act in the face of changing social and linguistic patterns. Because of this laissezfaire attitude on the part of the school administrators, it is not entirely clear that § 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d standing alone, would render illegal the expenditure of federal funds on these schools. For that section provides that

      [n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

      On the other hand, the interpretive guidelines published by the Office for Civil Rights of the Department of Health, Education, and Welfare in 1970, 35 Fed. Reg. 11595, clearly indicate that affirmative efforts to give special training for non-English-speaking pupils are required by Tit. VI as a condition to receipt of federal aid to public schools:

      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 its instructional program to these students.1

      The critical question is, therefore, whether the regulations and guidelines promulgated by HEW go beyond the authority of § 601.2 Last Term, in Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, we held that the validity of a regulation promulgated under a general authorization provision such as § 602 of Tit. VI.3

      will be sustained so long as it is “reasonably related to the purposes of the enabling legislation.” Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 280–281 (1969).

      I think the guidelines here fairly meet that test. Moreover, in assessing the purposes of remedial legislation, we have found that departmental regulations and “consistent administrative construction” are “entitled to great weight.” Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 210; Griggs v. Duke Power Co., 401 U.S. 424, 433–434; Udall v. Tallman, 380 U.S. 1. The Department has reasonably and consistently interpreted § 601 to require affirmative remedial efforts to give special attention to linguistically deprived children.

      For these reasons I concur in the result reached by the Court.

      1 These guidelines were issued in further clarification of the Department's position as stated in its regulations issued to implement Tit. VI, 45 CFR pt. 80. The regulations provide in part that no recipient of federal financial assistance administered by HEW may Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program; [or] Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program. 45 CFR § 80.3(b)(l)(ii), (iv).

      2 The respondents do not contest the standing of the petitioners to sue as beneficiaries of the federal funding contract between the Department of Health, Education, and Welfare and the San Francisco Unified School District.

      3 Section 602, 42 U.S.C. § 2000d-l, provides in pertinent part: Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken: The United States as amicus curiae asserts in its brief, and the respondents appear to concede, that the guidelines were issued pursuant to § 602.

      BLACKMUN, J., Concurring Opinion

      MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in the result.

      I join MR. JUSTICE STEWART'S opinion, and thus I, too, concur in the result. Against the possibility that the Court's judgment may be interpreted too broadly, I stress the fact that the children with whom we are concerned here number about 1,800. This is a very substantial group that is being deprived of any meaningful schooling because the children cannot understand the language of the classroom. We may only guess as to why they have had no exposure to English in their preschool years. Earlier generations of American ethnic groups have overcome the language barrier by earnest parental endeavor or by the hard fact of being pushed out of the family or community nest and into the realities of broader experience.

      I merely wish to make plain that, when, in another case, we are concerned with a very few youngsters, or with just a single child who speaks only German or Polish or Spanish or any language other than English, I would not regard today's decision, or the separate concurrence, as conclusive upon the issue whether the statute and the guidelines require the funded school district to provide special instruction. For me, numbers are at the heart of this case, and my concurrence is to be understood accordingly.

      Source: National Clearinghouse of English Language Acquisition (n.d.). Lau v. Nichols Supreme Court Decision [Online]. Available from http://www.ncela.gwu.edu/pubs/lau

      Task Force Findings Specifying Remedies Available for Eliminating Past Educational Practices Ruled Unlawful under Lau v. Nichols

      Department of Health, Education, and welfare Office of the Secretary

      Washington, D.c. 20201, Office for Civil Rights, Summer 1975

      Editor's Note: This document is more commonly known as “Lau Remedies.”

      I. Identification of Student's Primary or Home Language

      The first step to be included in a plan submitted by a district found to be in noncompliance with Title VI under Lau is the method by which the district will identify the student's primary or home language. A student's primary or home language, for the purpose of this report, is other than English if it meets at least one of the following descriptions:

      • The student's first acquired language is other than English.
      • The language most often spoken by the student is other than English.
      • The language most often spoken in the student's home is other than English, regardless of the language spoken by the student.

      These assessments (A-C, above) must be made by persons who can speak and understand the necessary language(s). Then the district must assess the degree of linguistic function or ability of the student(s) so as to place the student(s) in one of the following categories by language.

      • Monolingual speaker of the language other than English (speaks the language other than English exclusively).
      • Predominantly speaks the language other than English (speaks mostly the language other than English, but speaks some English).
      • Bilingual (speaks both the language other than English and English with equal ease).
      • Predominantly speaks English (speaks mostly English, but some of the language other than English).
      • Monolingual speaker of English (speaks English exclusively).

      In the event that the student is multilingual (is functional in more than two languages in addition to English), such assessment must be made in all the necessary languages.

      In order to make the aforementioned assessments the district must, at a minimum, determine the language most often spoken in the student's home, regardless of the language spoken by the student, the language most often spoken by the student in the home and the language spoken by the student in the social setting (by observation).

      These assessments must be made by persons who can speak and understand the necessary language(s). An example of the latter would be to determine by observation, the language used by the student to communicate with peers between classes or in informal situations. These assessments must cross-validate one another (Example: student speaks Spanish at home and Spanish with classmates at lunch). Observers must estimate the frequency of use of each language spoken by the student in these situations.

      In the event that the language determinations conflict (Example: student speaks Spanish at home, but English with classmates at lunch), an additional method must be employed by the district to make such a determination, (for example the district may wish to employ a test of language dominance as a third criterion). In other words, two of the three criteria will cross-validate or the majority of criteria will cross-validate (yield the same language).

      Due to staff limitations and priorities, we will require a plan under Lau during this initial stage of investigation when the district has 20 or more students of the same language group identified as having a primary or home language other than English. However, a district does have an obligation to serve any student whose primary or home language is other than English.

      II. Diagnostic/Prescriptive Approach

      The second part of a plan must describe the diagnostic/prescriptive measures to be used to identify the nature and extent of each student's educational needs and then prescribe an educational program utilizing the most effective teaching style to satisfy the diagnosed educational needs. The determination of which teaching style(s) are to be used will be based on a careful review of both the cognitive and affective domains and should include an assessment of the responsiveness of students to different types of cognitive learning styles and incentive motivational styles (e.g., competitive versus cooperative learning patterns). The diagnostic measures must include diagnoses of problems related to areas or subjects required of other students in the school program and prescriptive measures must serve to bring the linguistically/culturally different student(s) to the educational performance level that is expected by the Local Education Agency (LEA) and State of nonminority students. A program designed for students of limited English-speaking ability must not be operated in a manner so as to solely satisfy a set of objectives divorced or isolated from those educational objectives established for students in the regular school program.

      III. Educational Program Selection

      In the third step the district must implement the appropriate type(s) of educational program(s) listed in this section (III, 1–5), dependent upon the degree of linguistic proficiency of the students in question. If none seem applicable check with your Lau coordinator for further action.

      1. In the case of the monolingual speaker of the language other than English (speaks the language other than English exclusively).

      A. At the Elementary and Intermediate Levels:

      Any one or combination of the following programs is acceptable.

      • Transitional Bilingual Education Program (TBE).
      • Bilingual/Bicultural Program.
      • Multilingual/Multicultural Program (see IX, Definition of Terms).

      In the case of a TBE, the district must provide predictive data which show that such student(s) are ready to make the transition into English and will succeed educationally in content areas and in the educational program(s) in which he/she is to be placed. This is necessary so the district will not prematurely place the linguistically/culturally different student who is not ready to participate effectively in an English language curriculum in the regular school program (conducted exclusively in English).

      Because an ESL program does not consider the affective nor cognitive development of students in this category and time and maturation variables are different here than for students at the secondary level, an ESL program is not appropriate.

      B. At the Secondary Level:

      • Option 1: Such students may receive instruction in subject matter (example: math, science) in the native language(s) and receive English-as-a-Second Language (ESL) as a class component (see IX, Definition of Terms).
      • Option 2: Such students may receive required and elective subject matter (examples: math, science, industrial arts) in the native language(s) and bridge into English while combining English with the native language as appropriate (learning English as a first language, in a natural setting).
      • Option 3: Such students may receive ESL or High Intensive Language Training (HILT) (see IX, Definition of Terms), in English until they are fully functional in English (can operate equally successfully in school in English) then bridge into the school program for all other students.

      A district may wish to utilize a TBE, Bilingual/ Bicultural or Multilingual/Multicultural program in lieu of the three options presented in this section (III.l.B.). This is permissible. However, if the necessary prerequisite skills in the native language(s) have not been taught to these students, some form of compensatory education in the native language must be provided.

      In any case, students in this category (III.l.B.) must receive such instruction in a manner that is expedi-tiously carried out so that the student in question will be able to participate to the greatest extent possible in the regular school program as soon as possible. At no time can a program be selected in this category (III.l.B.) to place the students in situations where the method of instruction will result in a substantial delay in providing these students with the necessary English language skills needed by or required of other students at the time of graduation.

      NOTE: You will generally find that students in this category are recent immigrants.

      2. In the case of the predominatant speaker of the language other than English (speaks mostly the language other than English, but speaks some English).

      A. At the Elementary Level:

      Any one or combination of the following programs is acceptable.

      • TBE
      • Bilingual/Bicultural Program
      • Multilingual/Multicultural Program

      In the case of a TBE, the district must provide predictive data which show that such student(s) are ready to make the transition into English and will educationally succeed in content areas and the educational program in which he/she is to be placed.

      Since an ESL program does not consider the affective nor cognitive development of the students in this category and the time and maturation variables are different here than for students at the secondary level, an ESL program is not appropriate.

      B. At the Intermediate and High School Levels:

      The district must provide data relative to the student's academic achievement and identify those students who have been in the school system for less than a year. If the student(s) who have been in the school system for less than a year are achieving at grade level or better, the district is not required to provide additional educational programs. If, however, the students who have been in the school system for a year or more are underachieving (not achieving at grade level) (see IX, Definition of Terms), the district must submit a plan to remedy the situation. This may include smaller class size, enrichment materials, etc. In either this case or the case of students who are underachieving and have been in the school system for less than a year, the remedy must include any one or combination of the following (1) an ESL, (2) a TBE, (3) a Bilingual/Bicultural Program, (4) a Multilingual/Multicultural Program. But such students may not be placed in situations where all instruction is conducted in the native language as may be prescribed for the monolingual speaker of a language other than English, if the necessary prerequisite skills in the native language have not been taught. In this case some form of compensatory education in the native language must be provided.

      NOTE: You will generally find that students in this category are not recent immigrants.

      3. In the case of the bilingual speaker (speaks both the language other than English and English with equal ease) the district must provide data relative to the students) academic achievement.

      In this case the treatment is the same at the elementary, intermediate and secondary levels and differs only in terms of underachievers and those students achieving at grade level or better.

      • For the students in this category who are underachieving, treatment corresponds to the regular program requirements for all racially/ ethnically identifiable classes or tracks composed of students who are underachieving, regardless of their language background.
      • For the students in this category who are achieving at grade level or better, the district is not required to provide additional educational programs.

      4. In the case of the predominant speaker of English (speaks mostly English, but some of a language other than English) treatment for these students is the same as III, 3 above.

      5. In the case of the monolingual speaker of English (speaks English exclusively) treat the same as III, 3 above.

      NOTE: ESL is a necessary component of all the aforementioned programs. However, an ESL program may not be sufficient as the only program operated by a district to respond to the educational needs of all the types of students described in this document.

      IV. Required and Elective Courses

      In the fourth step of such plan the district must show that the required and elective courses are not designed to have a discriminatory effect.

      A. Required courses

      Required courses (example: American History) must not be designed to exclude pertinent minority developments which have contributed to or influenced such subjects.

      B. Elective courses and co-curricular activities

      Where a district has been found out of compliance and operates racially/ethnically identifiable elective courses or co-curricular activities, the plan must address this area by either educationally justifying the racial/ethnic identifiability of these courses or activities, eliminating them, or guaranteeing that these courses or co-curricular activities will not remain racially/ethnically identifiable.

      There is a prima facie case of discrimination if courses are racially/ethnically identifiable.

      Schools must develop strong incentives and encouragement for minority students to enroll in electives where minorities have not traditionally enrolled. In this regard, counselors, principals and teachers have a most important role. Title VI compliance questions are raised by any analysis of counseling practices which indicates that minorities are being advised in a manner which results in their being disproportionately channeled into certain subject areas or courses. The school district must see that all of its students are encouraged to fully participate and take advantage of all educational benefits.

      Close monitoring is necessary to evaluate to what degree minorities are in essence being discouraged from taking certain electives and encouraged to take other elective courses and insist that to eliminate discrimination and to provide equal educational opportunities, districts must take affirmative duties to see that minority students are not excluded from any elective courses and over included in others.

      All newly established elective courses cannot be designed to have a discriminatory effect. This means that a district cannot, for example, initiate a course in Spanish literature designed exclusively for Spanish-speaking students so that enrollment in that subject is designed to result in the exclusion of students whose native language is English but who could equally benefit from such a course and/or be designed to result in the removal of the minority students in question from a general literature course which should be designed to be relevant for all the students served by the district.

      V. Instructional Personnel Requirements (see IX, Definition of Terms)

      Instructional personnel teaching the students in question must be linguistically/culturally familiar with the background of the students to be affected.

      The student/teacher ratio for such programs should equal or be less than (fewer students per teacher) the student/teacher ratio for the district. However, we will not require corrective action by the district if the numbers of students in such programs are no more than five greater per teacher than the student/teacher ratio for the district.

      If instructional staffing is inadequate to implement program requirements, in-service training, directly related to improving student performance is acceptable as an immediate and temporary response. Plans for providing this training must include at least the following:

      • Objectives of training (must be directly related to ultimately improving student performance).
      • Methods by which the objective(s) will be achieved.
      • Method for selection of teachers to receive training.
      • Names of personnel doing the training and location of training.
      • Content of training.
      • Evaluation design of training and performance criteria for individuals receiving the training.
      • Proposed timetables.

      This temporary in-service training must continue until staff performance criteria has been met.

      Another temporary alternative is utilizing para professional persons with the necessary language(s) and cultural background(s). Specific instructional roles of such personnel must be included in the plan. Such plan must show that this personnel will aid in teaching and not be restricted to those areas unrelated to the teaching process (checking roll, issuing tardy cards, etc.).

      In addition, the district must include a plan for securing the number of qualified teachers necessary to fully implement the instructional program. Development and training of paraprofessionals may be an important source for the development of bilingual/ bicultural teachers.

      VI. Racial/Ethnic Isolation and/or Identifiability of Schools and Classes

      A. Racially/ethnically isolated and/or identifiable schools

      It is not educationally necessary nor legally permissible to create racially/ethnically identifiable schools in order to respond to student language characteristics as specified in the programs described herein.

      B. Racially/ethnically isolated and/or identifiable classes

      The implementation of the aforementioned educational models do not justify the existence of racially/ethnically isolated or identifiable classes, per se. Since there is no conflict in this area as related to the application of the Emergency School Aid Act (ESAA) and existing Title VI regulations, standard application of those regulations is effective.

      VII. Notification to Parents of Students whose Primary or Home Language is Other than English
      • School districts have the responsibility to effectively notify the parents of the students identified as having a primary or home language other than English of all school activities or notices which are called to the attention of other parents. Such notice, in order to be adequate, must be provided in English and in the necessary language(s) comprehensively paralleling the exact content in English. Be aware that a literal translation may not be sufficient.
      • The district must inform all minority and non-minority parents of all aspects of the programs designed for students of limited English-speaking ability and that these programs constitute an integral part of the total school program.
      VIII. Evaluation

      A “Product and Process” evaluation is to be submitted in the plan. This type of evaluation, in addition to stating the “product” (end result), must include “process evaluation” (periodic evaluation throughout the implementation stage). A description of the evaluation design is required. Time-lines (target for completion of steps) is an essential component.

      For the first three years, following the implementation of a plan, the district must submit to the OCR Regional Office at the close of sixty days after school starts, a “progress report” which will show the steps which have been completed. For those steps which have not been completed, a narrative from the district is necessary to explain why the targeted completion dates were not met. Another “progress report” is also due at the close of 30 days after the last day of the school year in question.

      IX. Definition of Terms:
      • Bilingual/Bicultural Program: A program which utilizes the student's native language (example: Navajo) and cultural factors in instruction maintaining and further developing all the necessary skills in the student's native language and culture while introducing, maintaining and developing all the necessary skills in the second language and culture (example: English). The end result is a student who can function, totally, in both languages and cultures.
      • English-as-a-Second Language (ESL): A structured language acquisition program designed to teach English to students whose native language is not English.
      • High Intensive Language Training (HILT): A total immersion program designed to teach students a new language.
      • Multilingual/Multicultural Program: A program operated under the same principles as a Bilingual/Bicultural program (X, 1) except that more than one language and culture, in addition to English language and culture, is treated. The end result is a student who can function, totally, in more than two languages and cultures.
      • Transitional Bilingual Education Program (TBE): A program operated in the same manner as a Bilingual/Bicultural Program, except that once the student is fully functional in the second language (English), further instruction in the native language is no longer required.
      • Underachievement: Underachievement is defined as performance in each subject area (e.g., reading, problem solving) at one or more standard deviations below district norms as determined by some objective measures for non-ethnic/racial minority students. Mental ability scores cannot be utilized for determining grade expectancy.
      • Instructional Personnel: Persons involved in teaching activities. Such personnel includes, but is not limited to, certified, credentialized teachers, paraprofessionals, teacher aides, parents, community volunteers, youth tutors, etc.

      Source: Archival Document. Southwest Center for Education Equity and Language Diversity. Arizona State University, Tempe, Arizona.

      United States Department of Education

      Office of the Assistant Secretary for Civil Rights

      April 6, 1990

      TO: OCR Senior Staff

      FROM: William L. Smith, Acting Assistant Secretary for Civil Rights

      SUBJECT: Office for Civil Rights Policy Regarding the Treatment of National Origin Minority Students Who Are Limited English Proficient

      I have recently received a number of inquiries regarding the Office for Civil Rights' (OCR) policy related to making determinations of compliance under Title VI of the Civil Rights Act of 1964 as regards the treatment of national origin minority students who are limited English proficient (language minority students). In responding to these inquiries, I am aware that our existing policy and procedures were issued several years ago and may be in need of updating. In fact, the Policy and Enforcement Service (PES) will issue such an update during the third quarter of FY 1990.

      Until that document is available, you can, of course, continue to follow our current policy documents available to you. The May 25th Memorandum, as affirmed by the Supreme Court in the Lau v. Nichols decision, 44 U.S. 653 (1974), provides the legal standard for the Education Department's Title VI policy concerning discrimination on the basis of national origin. The procedures OCR follows in applying this legal standard on a case-by-case basis are set forth in a document issued to OCR staff on December 3, 1985, entitled, OCR's Title VILanguage Minority Compliance Procedures (copy attached).

      In developing its policy update, PES staff will review the cases we have investigated over the past few years, in addition to examining the case law, to determine where additional guidance may be needed. It will be helpful for PES attorneys to discuss various aspects of these cases with some regional staff who have had substantial recent experience in applying our case-by-case approach. I understand that there have been some excellent investigations carried out under this policy. You will be consulted prior to any discussions on these matters with members of your staff. In the meantime, I urge you to continue to investigate complaints of discrimination against national origin minority students and to conduct compliance reviews on this issue where appropriate.

      If you have questions about the application of current policy, or if you have suggestions for policy modifications, you may call Cathy Lewis or send your information to me in writing.

      [Attachment below]

      United States Department of Education

      Office of the Assistant Secretary for Civil Rights

      The Office for Civil Rights' Title VI Language Minority Compliance Procedures

      Issue

      This discussion provides a description of the procedures followed by the Office for Civil Rights (OCR) in making determinations of compliance with Title VI of the Civil Rights Act of 1964, as regards the treatment of national origin minority students with limited-English proficiency (language minority students) enrolled in educational programs that receive Federal financial assistance from the Department of Education.

      Background

      As part of the Civil Rights Act of 1964, Congress enacted Title VI, prohibiting discrimination on the grounds of race, color or national origin in programs or activities that receive Federal financial assistance. In May 1970, the former Department of Health, Education and Welfare (DHEW) published a memorandum to school districts on the Identification of Discrimination and Denial of Services on the Basis of National Origin (the May 25th Memorandum, 35 Fed. Reg. 11595—Tab A). The purpose of the May 25th Memorandum was to clarify OCR's Title VI policy on issues concerning the responsibility of school districts to provide equal educational opportunity to language minority students. The May 25th Memorandum stated in part:

      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 its instructional program to these students.

      In 1974, the Supreme Court upheld this requirement to take affirmative steps in the Lau v. Nichols decision, 414 U.S. 653 (1974). The May 25th Memorandum, as affirmed by Lau, continues to provide the legal standard for the Education Department's (the Department) Title VI policy concerning discrimination on the basis of national origin. The Lau decision did not require school districts to use any particular program or teaching method. The opinion of the Court states:

      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 instruction to this group in Chinese is another. There may be others. Id. at 565.

      In 1975, the former DHEW promulgated a document designed to describe appropriate educational steps that would satisfy the Supreme Court's Lau mandate (Task Force Findings Specifying Remedies Available for Eliminating Unlawful Under Lau v. Nichols). These “Lau Remedies” evolved into defacto compliance standards, which allowed undue Federal influence over educational judgments that could and should be made by local and state educational authorities.

      In August 1980, the newly-formed Department of Education published a Notice of Proposed Rulemaking (NPRM) that sought to replace the unofficial “Lau Remedies” with a document that would have set forth requirements for all schools enrolling language minority students. The 1980 NPRM proposed bilingual education as the required method of instruction in schools with sufficient numbers of language minority students of one language group.

      Subsequently, the Department determined that the proposed regulations were intrusive and burdensome. They were withdrawn on February 2, 1981, and OCR put into effect nonprescriptive interim procedures pertaining to the effective participation of language minority students in the educational program offered by a school district. Under these procedures, OCR reviews the compliance of school districts on a case-by-case basis. Any educational approach that ensures the effective participation of language minority students in the district's educational program is accepted as a means of complying with the Title VI requirements.

      Since this compliance approach has been successful, OCR has determined that these procedures provide sufficient guidance for OCR staff and school districts. Accordingly, OCR will continue to follow procedures which allow for a case-by-case determination of a district's compliance status. Set forth below is an updated statement of OCR's current procedures, and a discussion of the analysis applied by OCR in assessing a district's efforts to meet the requirements of Title VI and the May 25th Memorandum.

      OCR's Current Procedures

      OCR conducts investigations of the educational services provided for language minority students either as a result of a complaint allegation or through a compliance review. Although the May 25th Memorandum and Lau v. Nichols decision require school districts to “take affirmative steps” to open their instructional programs to language minority students, OCR does not require the submission of a written compliance agreement (plan) unless a violation of Title VI has been established.

      The affirmative steps required by the May 25th Memorandum have been interpreted to apply to national origin minority students who are learning English as a second language, or whose ability to learn English has been substantially diminished through lack of exposure to the language. The May 25th Memorandum does not generally cover national origin minority students whose only language is English, and who may be in difficulty academically, or who have language skills that are less than adequate.

      In providing educational services to language minority students, school districts may use any method or program that has proven successful, or may implement any sound educational program that promises to be successful. Districts are expected to carry out their programs, evaluate the results to make sure the programs are working as anticipated, and modify programs that do not meet these expectations.

      OCR considers two general areas in determining whether a school district that enrolls language minority students is in compliance with Title VI. These are:

      • whether there is a need for the district to provide an alternative program designed to meet the educational needs of all language minority students; and
      • whether the district's alternative program is likely to be effective in meeting the educational needs of its language minority students.

      The question of need for an alternative program is resolved by determining whether language minority students are able to participate effectively in the regular instructional program. When they are not, the school district must provide an alternative program. In cases where the number of these students is small, the alternative program may be informal (i.e., no formal program description is required).

      The second major area of consideration is whether the district's alternative program is likely to be effective in meeting the educational needs of its language minority students. There is considerable debate among educators about the most effective way to meet the educational needs of language minority students in particular circumstances. A variety of factors influence the success of any approach or pedagogy. These factors include not only individual student characteristics, such as age and previous education, but also school characteristics, such as the number and the concentration of different language groups. OCR staff is not in the position to make programmatic determinations and does not presume to make those decisions.

      OCR's deliberations are appropriately directed to determining whether the district has addressed these problems, and has developed and implemented an educational program designed to ensure the effective participation of language minority students. The following sets forth an analytical framework used by OCR in determining whether a school district's program is in compliance with Title VI in this area:

      I. Whether There is a Need for an Alternative Program.

      The determination of whether all language minority students in need have been served may be made in a number of ways. For example, a district may establish cut-off criteria for the placement of language minority students in either the regular or alternative programs based on the English language proficiency levels required for effective participation in their regular instructional programs. Alternatively, past academic records of language minority students may be used to predict, for example, which new students are likely to require the assistance provided by the alternative program.

      Many school districts screen students using information such as a language assessment test, information from parents, or structured interviews, to determine which language minority students may need further assessment and possible placement into an alternative program. The appropriateness of assessment methods and procedures depends upon several variables, such as the number of language minority students in each language group, the ages of these students, the size of the school district, and the availability of reliable assessment instruments in the different languages.

      The district may show that the academic performance of language minority students in the regular instructional program indicates that these students do not require the assistance provided by the alternative program. The district may also show that language minority students who need assistance can readily transfer from the regular to the alternative program for the portion of the school day during which assistance is needed.

      OCR will find a violation of Title VI if language minority students in need of an alternative program are not being provided such a program. However, the mere absence of formal identification and assessment procedures and of a formal program does not, per se, constitute a violation of Title VI. Regional staff is cautioned to review carefully the school district's reasons for not having such procedures, and the effectiveness of any informal methods that may be used. For example, a school district that has received a recent influx of language minority students may not be reasonably expected to have in place the type of procedures and programs that other districts with more predictable language minority student populations should have. Similarly, a school district with only a small number of language minority students, may not need the formal procedures and programs necessary in districts with much larger numbers of such students. In the past, OCR has worked with such districts, in conjunction with State education agencies, to provide technical assistance in an effort to prevent future Title VI problems.

      II. Whether the Alternative Program is Likely to be Effective.

      A. Is the alternative program based on a sound design?

      School districts must demonstrate that the alternative program designed to ensure the effective participation of language minority students in the educational program is based on a sound educational approach.

      OCR avoids making educational judgments or second-guessing decisions made by local education officials. Instead, OCR looks at all the available evidence describing the steps taken to ensure that sound and appropriate programs are in place. Example of factors that would be considered are:

      • Whether the program has been determined to be a sound educational program by at least some experts in the field.

      An expert in the field can be defined as someone whose experience and training expressly qualifies him or her to render such judgments and whose objectivity is not at issue.

      • Whether there is an explanation of how the program meets the needs of language minority students.

      Such an explanation would normally include a description of the program components and activities, along with a rationale that explains how the program activities can be reasonably expected to meet the educational needs of language minority students.

      • Whether the district is operating under an approved state plan or other accepted plans.

      Plans that have previously been accepted by OCR as being in compliance with Title VI continue to be acceptable. These plans may be modified by school districts at any time. When comprehensive programs are mandated by state law, OCR will approve such plans, upon request, where it can be demonstrated that the plans provide a sound educational program that will meet the educational needs of language minority students. When a plan applies only to certain grade levels, the acceptance memorandum is limited to those grades covered under the state plan.

      B. Is the alternative program being carried out in such a way as to ensure the effective participation of the language minority students as soon as reasonably possible?

      Districts are expected to carry out their programs effectively, with appropriate staff (teachers and aides), and with adequate resources (instructional materials and equipment).

      • Appropriateness of staff

      The appropriateness of staff is indicated by whether their training, qualifications, and experience are consonant with the requirements of the program. For example, their appropriateness would be questioned if a district has established an English-as-a-Second-Language (ESL) program, but the staff had no ESL training and there was no provision for ESL teacher training.

      • Adequacy of resources

      The adequacy of resources is determined by the timely availability of required equipment and instructional materials. Limited financial resources do not justify failure to remedy a Title VI violation. However, OCR considers the extent to which a particular remedy would require a district to divert resources from other necessary educational resources and services.

      Similarly, districts faced with a shortage of trained teachers, or with a multiplicity of languages, may not be able to meet certain staffing requirements, such as those needed for an intensive ESL program or a bilingual program. OCR does not require a program that places unrealistic expectations on a district.

      C. Is the alternative program being evaluated by the district and are modifications made in the program when the district's evaluation indicates they are needed?

      A district will be in compliance with Title VI when it has adopted an alternative educational program that, when viewed in its entirety, effectively teaches language minority students English, and moves them into the regular educational program within a reasonable period of time. A more difficult compliance determination arises when a district implements an educational approach which, by all available objective measures, does not provide language minority students with the opportunity for effective participation.

      For the reasons discussed earlier in this document, OCR approaches this compliance issue with great caution. Since OCR does not presume to know which educational strategy is most appropriate in a given situation, the failure of any particular strategy or program employed by a school district is more properly addressed by school officials. OCR looks to local school officials to monitor the effectiveness of their programs, to determine what modifications may be needed when the programs are not successful after a reasonable trial period, and to implement such modifications. A school district's continued or consistent failure to improve an ineffective alternative program for language minority students may lead to a finding of noncompliance with Title VI.

      There are no specific regulatory requirements regarding the data a district must keep on its alternative programs for language minority students. OCR's current approach to determining compliance with Title VI on this issue does not require that new, additional, or specifically designed records be kept. It is expected that a sound educational program will include the maintenance of reasonably accurate and complete data regarding its implementation and the progress of students who move through it.

      Conclusion

      In viewing a school district's compliance with Ήΰε VI regarding effective participation of language minority students in the educational program, OCR does not require schools to follow any particular educational approach. The test for legal adequacy is whether the strategy adopted works—or promises to work—on the basis of past practice or in the judgment of experts in the field. OCR examines all the available evidence within the analytical framework described, and determines whether the preponderance of evidence supports the conclusion that the district is implementing a sound educational program that ensures the effective participation of its language minority students.

      Issued Initially on December 3, 1985

      Reissued Without Change on April 6, 1990

      William L. Smith, Acting Assistant Secretary for Civil Rights

      Source: U.S. Department of Education. (2005). Policy Regarding the Treatment of National Origin Minority Students Who Are Limited English Proficient [Online]. Available: http://www.ed.gov/about/offices/list/ocr/docs/laul990_and_1985.html

      United States Department of Education

      Washington, D.C. 20202

      Memorandum

      Sep. 27, 1991

      TO: OCR Senior Staff

      FROM: Michael L. Williams, Assistant Secretary for Civil Rights

      SUBJECT: Policy Update on Schools' Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)

      This policy update is primarily designed for use in conducting Lau1 compliance reviews—that is, compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools' programs. The policy update adheres to OCR's past determination that Title VI does not mandate any particular program of instruction for LEP students. In determining whether the recipient is operating a program for LEP students that meets Title VI requirements, OCR will consider whether: (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy; (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school; and (3) the program succeeds, after a legitimate trial, in producing results indicating that students' language barriers are actually being overcome. The policy update also discusses some difficult issues that frequently arise in Lau investigations. An appendix to the policy discusses the continuing validity of OCR's use of the Castañeda2 standard to determine compliance with the Title VI regulation.

      This document should be read in conjunction with the December 3, 1985, guidance document entitled, “The Office for Civil Rights' Title VI Language Minority Compliance Procedures,” and the May 1970 memorandum to school districts entitled, “Identification of Discrimination and Denial of Services on the Basis of National origin,” 35 Fed. Reg. 11595 (May 1970 Memorandum). It does not supersede either document.3 These two documents are attached for your convenience.

      Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCR's Title VI Lau policy. In Part I, more specific standards are enunciated for staffing requirements, exit criteria and program evaluation. Policy issues related to special education programs, gifted/talented programs, and other special programs are also discussed. Part II of the policy update describes OCR's policy with regard to segregation of LEP students.

      The appendix to this policy update discusses the use of the Castañeda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974.

      With the possible exception of Castañeda, which provides a commonsense analytical framework for analyzing a district's program for LEP students that has been adopted by OCR, and Keyes v. School Dist. No. 1, which applied the Castañeda principles to the Denver Public Schools, most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance. The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCR's practical legal and policy experience in the field. In that regard, the issues discussed herein, and the policy decisions reached, reflect a careful and thorough examination of Lau case investigations carried out by OCR's regional offices over the past few years, comments from the regional offices on a draft version of the policy, and lengthy discussions on the issues with some of OCR's most experienced investigators. Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate.

      I. Additional Guidance for Applying the May 1970 and December 1985 Memoranda

      The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI: (1) the need for an alternative language program for LEP students; and (2) the adequacy of the program chosen by the recipient. Issues related to the adequacy of the program chosen by the recipient will be discussed first, as they arise more often in Lau investigations. Of course, the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipient's educational program.

      A. Adequacy of Program

      This section of the memorandum provides additional guidance for applying the three-pronged Castañeda approach as a standard for determining the adequacy of a recipient's efforts to provide equal educational opportunities for LEP students.

      1. Soundness of educational approach

      Castañeda requires districts to use educational theories that are recognized as sound by some experts in the field, or at least theories that are recognized as legitimate educational strategies. 648 F. 2d at 1009. Some approaches that fall under this category include transitional bilingual education, bilingual/bicultural education, structured immersion, developmental bilingual education, and English as a Second Language (ESL). A district that is using any of these approaches has complied with the first requirement of Castañeda. If a district is using a different approach, it is in compliance with Castañeda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy.

      2. Proper Implementation

      Castañeda requires that “the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school.” 648 F. 2d at 1010. Some problematic implementation issues have included staffing requirements for programs, exit criteria, and access to programs such as gifted/talented programs. These issues are discussed below.

      Staffing requirements. Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time. Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students. When formal qualifications have been established, and when a district generally requires its teachers in other subjects to meet formal requirements, a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications. See Castañeda, 648 F. 2d at 1013. A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications. See 34 C.F.R. § 100.3(b)(ii).4

      Whether the district's teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program. Some states have no requirements beyond requiring that a teacher generally be certified, and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the district's chosen educational program.5 Discussed below are some minimum qualifications for teachers in alternative language programs.

      If a recipient selects a bilingual program for its LEP students, at a minimum, teachers of bilingual classes should be able to speak, read, and write both languages, and should have received adequate instruction in the methods of bilingual education. In addition, the recipient should be able to show that it has determined that its bilingual teachers have these skills. See Keyes, 576 F. Supp. at 1516–17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages); cf. Castañeda, 648 F. 2d at 1013 (“A bilingual education program, however sound in theory, is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children, if the teachers charged with the day-to-day responsibility for educating these children are termed ‘qualified’ despite the fact that they operate in the classroom under their own unremedied language disability”). In addition, bilingual teachers should be fully qualified to teach their subject.

      If a recipient uses a method other than bilingual education (such as ESL or structured immersion), the recipient should have ascertained that teachers who use those methods have been adequately trained in them. This training can take the form of in-service training, formal college course work, or a combination of the two. In addition, as with bilingual teachers, a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students. In making this determination, the recipient should use validated evaluative instruments—that is, tests that have been shown to accurately measure the skills in question. The recipient should also have the teacher's classroom performance evaluated by someone familiar with the method being used.

      ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills. Compare Teresa P., 724 F. Supp. at 709 (finding that LEP students can be taught English effectively by monolingual teachers), with Keyes, 576 F. Supp. at 1517 (“The record shows that in the secondary schools there are designated ESL teachers who have no second language capability. There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools”).

      To the extent that the recipient's chosen educational theory requires native language support, and if the program relies on bilingual aides to provide such support, the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking, reading, and writing both languages.6 In addition, the bilingual aides should be working under the direct supervision of certificated classroom teachers. Students should not be getting instruction from aides rather than teachers. 34 C.F.R. § 100.3(b)(l)(ii); see Castañeda, 648 F2d at 1013 (“The use of Spanish speaking aides may be an appropriate interim measure, but such aides cannot … take the place of qualified bilingual teachers”).

      Recipients frequently assert that their teachers are unqualified because qualified teachers are not available. If a recipient has shown that it has unsuccessfully tried to hire qualified teachers, it must provide adequate training to teachers already on staff to comply with the Title VI regulation. See Castañeda, 648 F. 2d at 1013. Such training must take place as soon as possible. For example, recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students. This requirement is not, in itself, sufficient to meet the recipient's obligations under the Title VI regulation. To ensure that LEP students have access to the recipient's programs while teachers are completing their formal training, the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom, as well as any assistance from bilingual aides that may be necessary to carry out the recipient's interim program.

      Exit Criteria for Language Minority LEP Students. Once students have been placed in an alternative language program, they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program. Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include: (1) whether they are able to keep up with their non-LEP peers in the regular educational program; (2) whether they are able to participate successfully in essentially all aspects of the school's curriculum without the use of simplified English materials; and (3) whether their retention in-grade and drop-out rates are similar to those of their non-LEP peers.

      Generally, a recipient will have wide latitude in determining criteria for exiting students from an alternative language program, but there are a few basic standards that should be met. First, exit criteria should be based on objective standards, such as standardized test scores, and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom. Second, students should not be exited from the LEP program unless they can read, write, and comprehend English well enough to participate meaningfully in the recipient's program. Exit criteria that simply test a student's oral language skills are inadequate. Keyes, 576 F. Supp. at 1518 (noting importance of testing reading and writing skills as well as oral language skills). Finally, alternative programs cannot be “dead end” tracks to segregate national origin minority students.

      Many districts design their LEP programs to temporarily emphasize English over other subjects. While schools with such programs may discontinue special instruction in English once LEP students become English-proficient, schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English. Castañeda, 648 F. 2d at 1011.

      Special Education Programs. OCR's overall policy on this issue, as initially announced in the May 1970 memorandum, is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills. The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue. This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited-English-proficient students in special education programs. Although OCR staff are very familiar with Section 504 requirements, additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful. A separate policy update will be prepared on those issues.

      Pending completion of that policy update, Lau compliance reviews should continue to include an inquiry into the placement of limited-English-proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs, or where special education programs provided for LEP students do not address their inability to speak or understand English. In addition, compliance reviews should find out whether recipients have policies of “no double services”: that is, refusing to provide both alternative language services and special education to students who need them. Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs. If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education, the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues. Alternatively, the region could schedule a compliance review of the special education program at a later date. In small- to medium-sized school districts, regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review.

      Gifted/Talented Programs and Other Specialized Programs. The exclusion of LEP students from specialized programs such as gifted/talented programs may have the effect of excluding students from a recipient's programs on the basis of national origin, in violation of 34 C.F.R. § 100.3(b)(2), unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program.

      LEP students cannot be categorically excluded from gifted/talented or other specialized programs. If a recipient has a process for locating and identifying gifted/ talented students, it must also locate and identify gifted/talented LEP students who could benefit from the program.

      In determining whether a recipient has improperly excluded LEP students from its gifted/talented or other specialized programs, OCR will carefully examine the recipient's explanation for the lack of participation by LEP students. OCR will also consider whether the recipient has conveyed these reasons to students and parents.

      Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include: (1) that time for the program would unduly hinder his/her participation in an alternative language program; and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation.

      Unless the particular gifted/talented program or program component requires proficiency in English language skills for meaningful participation, the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency. To the extent feasible, tests used to place students in specialized programs should not be of a type that the student's limited proficiency in English will prevent him/her from qualifying for a program for which they would otherwise be qualified.

      3. Program Evaluation

      In return for allowing a school's flexibility in choosing and implementing an alternative language program, Castañeda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial. As a practical matter, recipients cannot comply with this requirement without periodically evaluating their programs. If a recipient does not periodically evaluate or modify its programs, as appropriate, it is in violation of the Title VI regulation unless its program is successful. Cf. Keyes, 576 F. Supp. at 1518 (“The defendant's program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing…. The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy”).

      Generally, “success” is measured in terms of whether the program is achieving the particular goals the recipient has established for the program. If the recipient has established no particular goals, the program is successful if its participants are overcoming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipient's programs.

      B. Need for a formal program

      Recipients should have procedures in place for identifying and assessing LEP students. As the December 1985 memorandum stated, if language minority students in need of an alternative language program are not being served, the recipient is in violation of Title VI.

      The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients' schools. In districts with few LEP students, at a minimum, school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services, and of their obligation to seek any assistance necessary to comply with this requirement. Schools with a relatively large number of LEP students would be expected to have in place a more formal program.

      Title VI does not require an alternative program if, without such a program, LEP students have equal and meaningful access to the district's programs. It is extremely rare for an alternative program that is inadequate under Castañeda to provide LEP students with such access. If a recipient contends that its LEP students have meaningful access to the district's programs, despite the lack of an alternative program or the presence of a program that is inadequate under Castañeda, some factors to consider in evaluating this claim are: (1) whether LEP students are performing as well as their non-LEP peers in the district, unless some other comparison seems more appropriate;7 (2) whether LEP students are successfully participating in essentially all aspects of the school's curriculum without the use of simplified English materials; and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers. Cf. Keyes, 576 F. Supp. at 1519 (high drop-out rates and use of “levelled English” materials indicate that district is not providing equal educational opportunity for LEP students). If LEP students have equal access to the district's programs under the above standards, the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castañeda standard. If application of the above standards shows that LEP students do not have equal access to the district's programs, and the district has no alternative language program, the district is in violation of Title VI. If the district is implementing an alternative program, it then will be necessary to apply the three-pronged Castañeda approach to determine whether the program complies with Title VI.

      II. Segregation of LEP Students

      Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day. Castañeda states that this segregation is permissible because “the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation.” 648 F. 2d at 998.

      OCR's inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals. In other words, OCR will not examine whether ESL, transitional bilingual education, developmental bilingual education, bilingual/bicultural education, structured immersion, or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students. Instead, OCR will examine whether the degree of segregation in the program is necessary to achieve the program's educational goals.

      The following practices could violate the anti-segregation provisions of the Title VI regulation: (1) segregating LEP students for both academic and nonacademic subjects, such as recess, physical education, art and music;8 and (2) maintaining students in an alternative language program longer than necessary to achieve the district's goals for the program.

      Appendix: Use of the CastañEDA Standard to Determine Compliance with Title VI

      In determining whether a recipient's program for LEP students complies with Title VI of the Civil Rights Act of 1964, OCR has used the standard set forth in Castañeda v. Pickard, 648 F. 2d 989 (5th Cir. 1981). Under this standard, a program for LEP students is acceptable if: (1) “[the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or, at least, deemed a legitimate experimental strategy” (2) “the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school” and (3) the school's program succeeds, after a legitimate trial, in producing results indicating that the language barriers confronting students are actually being overcome. Id. at 1009–10.

      The Castañeda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA), PL. No. 93–380, codified at 20 U.S.C. §§ 1701–1720, rather than on Title VI or its implementing regulation (20 C.F.R. Part 100). The relevant portion of the EEOA (20 U.S.C. § 1703(f)) is very similar to OCR's May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974.9 In Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786 (1974), the Supreme Court upheld OCR's authority to establish the policies set forth in the May 1970 memorandum.

      In view of the similarity between the EEOA and the policy established in the 1970 OCR memorandum, in 1985 OCR adopted the Castañeda standard for determining whether recipients' programs for LEP students complied with the Title VI regulation. Several courts have also treated Title VI and the EEOA as imposing the same requirements regarding limited-English-proficient students. See Heavy Runner v. Bremner, 522 F Supp. 162, 165 (D. Mont. 1981); Rios v. Read, 480 F Supp. 14,21–24 (E.D.N.Y. 1978) (considered Title VI, § 1703(f), and Bilingual Education Act of 1974 claims together; used 1975 Lau Remedies10 to determine compliance); Cintron v. Brentwood Union Free School Dist, 455 F. Supp. 57, 63–64 (E.D.N.Y. 1978) (same); see also Gómez v. Illinois State Bd. of Educ, 811 F.2d 1030 (7th Cir. 1987) (used Castañeda standard for § 1703(f) claim; remanded claim under Title VI regulation without specifying standard to be used in resolving it, except to note that proof of discriminatory intent was not necessary to establish a claim under the Title VI regulation); Idaho Migrant Council v. Board of Education, 647 F.2d 69 (9th Cir. 1981) (Idaho state education agency had an obligation under § 1703(f) and Title VI to ensure that needs of LEP students were addressed; did not discuss any differences in obligations under Title VI and § 1703(f)).

      Castañeda itself did not treat Title VI and the EEOA interchangeably, however. Instead, it distinguished between them on the ground that a showing of intentional discrimination was required for a Title VI violation, while such a showing was not required for a § 1703(f) violation. Castañeda, 648 F2d at 1007. See also Keyes v. School Dist. No. 1, 576 F Supp. 1503, 1519 (D. Colo. 1983) (court found that alternative language program violated § 1703(f) and elected not to determine whether it also violated Title VI; questioned continuing validity of Lau in light of Bakke and noted that remedying § 1703(f) violation would necessarily remedy any Title VI violation).

      Castañeda and Keyes were decided before Guardians Association v. Civil Service Commission of New York, 463 U.S. 582, 607 n.27, 103 S. Ct. 3221, 3235 n.27 (1983). In Guardians, a majority of the Supreme Court upheld the validity of administrative regulations incorporating a discriminatory effect standard for determining a Title VI violation.11 Thus, Castañeda and Keyes do not undermine the validity of OCR's decision to apply § 1703(f) standards to determine compliance with the Title VI regulation.

      A recent California case, however, distinguished § 1703(f) and the Title VI regulation on other grounds. Teresa P. v. Berkeley Unified School Dist., 724 F Supp. 698 (N.D. Cal. 1989). In analyzing the § 1703(f) claim in Teresa P., the court used the three-part Castañeda standard and determined that the district's program was adequate under that standard. Id. at 712–16. In addressing the claim brought under the Title VI regulation, however, the court stated that plaintiffs had failed to make a prima facie case because they had not alleged discriminatory intent on the part of the defendants, nor had they “offered any evidence, statistical or otherwise,” that the alternative language program had a discriminatory effect on the district's LEP students. Id. at 716–17.

      In Teresa P., the district court found that the district's LEP students were participating successfully in the district's curriculum, were competing favorably with native English speakers, and were learning at rates equal to, and in some cases greater than, other LEP students county wide and statewide. 724 F Supp. at 711. The court also found that, in general, the district's LEP students scored higher than the county- and statewide average on academic achievement tests. Id. at 712. Given these findings, the dismissal of the Title VI claim in Teresa P. can be regarded as consistent with OCR's May 1970 and December 1985 memoranda, both of which require proof of an adverse impact on national origin minority LEP students to establish a violation of the Title VI regulation.12

      Neither Teresa P. nor any other post-Castañeda case undermines OCR's decision to use the Castañeda standard to evaluate the legality of a recipient's alternative language program. OCR will continue to use the Castañeda standard, and if a recipient's alternative language program complies with this standard the recipient will have met its obligation under the Title VI regulation to open its program to LEP students.

      1 Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786 (1974).

      2 Castañeda v. Pickard, 648 R 2d 989 (5th Cir. 1981).

      3 These and other applicable policy documents can be located through OCR's automated Policy Codification System (PCS) by selecting “current” policy and the keywords “Limited-English Proficient (LEP) Student” (F054). Documents not listed as “current” policy in the PCS should not be used.

      4 But cf. Teresa P. v. Berkeley Unified School District, 724 R Supp. 698, 714 (N.D. Cal. 1989) (finding that district had adequately implemented its language remediation program even though many of its bilingual and ESL teachers did not hold applicable credentials; court noted that district probably could not have obtained fully credentialed teachers in all language groups, district was requiring teachers to work toward completion of credential requirements as a condition of employment, record showed no differences between achievement of students taught by credentialed teachers and achievement of students taught by uncredentialed teachers, and district's financial resources were severely limited).

      5 Cf. Castañeda, 648 R 2d at 1013 (court of appeals remanded for determination as to whether deficiencies in teaching skills were due to inadequate training program [100-hour program designed to provide 700-word Spanish vocabulary] or whether failure to master program caused teaching deficiencies).

      6 Aides at the kindergarten and first-grade levels need not demonstrate reading and writing proficiency.

      7 For example, when an overwhelming majority of students in a district are LEP students, it may be more appropriate to compare their performance with their non-LEP peers county- or statewide.

      8 For an example of a program exclusively for newly-arrived immigrants consistent with Title VI, see OCR's Letter of Findings in Sacramento City Unified School District, Compliance Review Number 09-89-5003, February 21, 1991.

      9 Section 1703(f) of the EEOA states, in pertinent part, “No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by … the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” The pertinent section of the OCR 1970 memorandum states, “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 its instructional program to these students.”

      10 OCR's 1975 Task Force Findings Specifying Remedies Available for Eliminating Past Educational Practices Ruled Unlawful Under Lau v. Nichols.

      11 The applicable Department of Education regulation is 34 C.F.R. § 100.3(b)(2).

      12 A Ninth Circuit case also treated § 1703(f) and Title VI claims differently, but in such a terse fashion that it cannot be determined whether these differences would ever have a practical effect. See Guadalupe Org. v. Tempe Elementary School Dist. No. 3., 587 R 2d 1022, 1029–30 (9th Cir. 1978) (court found that maintenance of bilingual/bicultural education was not necessary to provide students with the “meaningful education and the equality of educational opportunity that [Title VI] requires” court also found that districts did not have to provide maintenance bilingual/bicultural education to be deemed to have taken “‘appropriate action to overcome language barriers that impede equal participation by its students in its instructional program’” (quoting § 1703(f)).

      Source: U.S. Department of Education. (2005). Policy Update on Schools' Obligations Toward National Origin Minority Students With Limited-English Proficiency [Online]. Available: http://www.ed.gov/about/offices/list/ocr/docs/laul991.html

      Appendix D: The Challenge of a Multicultural America (Speech by Senator Joseph M. Montoya)

      Editor's Note: The following is the text of the speech delivered by Senator Joseph M. Montoya (D-NM) at the conference “A Re-look at Tucson '66.” (November, 1973. Albuquerque, New Mexico.)

      1966: Commitment

      The National Education Association Symposium of 1966 was a challenge to those of us who lived in the Southwest, where the need was greatest for a change in the way we taught Mexican American children. It was in Tucson that we first determined to build what we called “bridges of understanding” for the people in this country so that America would become the truly united nation it should be: a nation, which valued its own variety and could speak and understand its own languages.

      We left that meeting determined to generate interest in new kinds of schools wherever language-minority children needed them. We wanted to generate new ideas in colleges and universities where teachers were preparing for the future. We wanted to generate concern in governments at every level.

      Senator Yarborough and I returned to Washington with your words reinforcing our own awareness of the needs in our states and in the nation. The first Bilingual Education Act was the result.1 That was seven years ago—a time when new and progressive ideas about education were welcome in Washington, and when many of us thought it was enough to spotlight a need, develop a program to meet that need, provide federal help to get things going—and then settle back to wait for good results.

      1973: Reappraisal

      That was naive, of course. Things didn't work out quite the way we planned. We have helped some children, produced some teachers, funded some programs. But somehow, in these last seven years we have failed to do the job we pledged to do.

      We have not been able to help the millions of students who entered our schools in those years since 1966—children who were poor and spoke a language other than English. We called them “bilingual” children. But they were not bilingual. They were monolingual—but in the wrong language. Wrong for most Americans, that is. We encouraged that “wrong” definition by calling them children of “limited English speaking ability.” We offered them, at best, remedial education as a temporary measure—and we found that “remedial” education was expensive, difficult, and unpopular.

      These children brought to their schools the language and culture of their homes, and in kindergarten or the first grade they were asked to forget all that they had learned in their first six years, to sacrifice their heritage, their individual worth, their unique talents, their pride in their communities and homes—all so they could be taught to think and read and write in English and lose that definition of being limited.

      At six or seven years of age they were asked to perform a kind of mental miracle—and when that miracle didn't happen those around them, too, often pretended it was the children's failure, instead of ours. Of course it was our failure, because we did not understand the values of the languages and cultures we were asking those children to leave behind. Most of the programs we offered did not have the goal of real bilingualism, but simply offered a change in the brand of monolingualism the children used. We tried to turn a child with “limited English-speaking” ability into a child with “limited Spanish-speaking” ability or “limited Indian-language” ability.

      In all the years between that first meeting in Tucson and this one in Albuquerque, we have only managed to provide programs for a few hundred thousand children—a tiny 2 percent of those who needed our help. And most of the programs we offered were transitional programs designed to change one limiting handicap for another.

      Even now, seven years later and six years after the legislation which was supposed to solve the problem, the federal government is helping only 217 programs in the whole United States. Some states have joined in the effort to help, and some local schools have begun to think about the problem—but very few places have faced the depth of the need or the realities of the problem.

      For most children who spoke a language other than English in 1966, the reality of the last seven years has been not bilingual or bicultural education, but instead the gradual loss of learning potential; the frustration and indignity of falling further and further behind other children every year; the anger at a system which refused to teach them in a language they understood, and demanded instead conformity in a language they could not comprehend.

      Those children who entered school in 1966, when we first pledged to provide a better kind of education for them, should be in the eighth grade today. For those who did not speak English we know statistically what has happened. Ten percent of them have dropped out of school already. Of those who are still in school, 64 percent are reading below grade level and 10 percent are at least two years behind, in the fourth or fifth grades. And by the time they should be in the twelfth grade—just four years from now—40 percent of these students will have dropped out of school. Only 5 percent of them will ever complete college.

      What those statistics mean to the dropouts is painfully clear. They will always face the handicaps of higher unemployment, less income, less opportunity. All the fringe benefits of poverty will be theirs: more illness, harder and less rewarding work, and earlier death.

      The truth is that we failed those children who entered school in 1966—and we may be going to fail their children, too.

      What went wrong?

      We did pass the legislation. But we failed to make it live up to its promise. Other priorities were greater in Washington, and in 1968 we elected a president who did not share our belief in this new kind of education. By 1970 we heard the rumblings of discontent from the White House about money we were “wasting”—and finally this year we heard the requests that no money at all be budgeted for bilingual education.

      In addition to our failures in government, educators themselves were discovering that the problem was more complex than we thought. Even if the money and support had been available, you educators were not really ready. You did not have the teachers trained, the textbooks written, the testing materials and teaching techniques developed.

      Lessons of Experience

      But all of us know more today than we did in 1966. We know that:

      • We need not only bilingual but also bicultural programs and one without the other is meaningless.
      • Not just Spanish children or Indian children, children who speak any language other than English, will benefit from bilingual and bicultural education, all children would benefit from that kind of opportunity in our schools.
      • In the few places where bilingual education has been tried, the results have been a sharp increase in achievement, not only for the child who speaks a language other than English, but for the English speaking child who shares the program.
      • Literacy in two languages is better than literacy in one and if children are allowed to read and write first in the language they know best they can soon learn to read and write in a second language at a faster pace. They can become literate in the language they bring to school and in the language they find in school instead of becoming illiterate and nonfunctioning in both.
      • The teachers for successful bilingual programs are not just people who speak Spanish or French or Chinese or Indian—but are people who are bilateral (sic) and have been trained to teach in two languages, not one.
      • We have very few universities or colleges which are prepared to train that special kind of teacher—that is why we do not have enough teachers even for the few programs in existence. (A recent survey shows that only about one-fourth of the teachers listed as being “bilingual” actually are trained to teach bilingually.)
      • It will take us many years to produce the teachers in the numbers needed, or the books and histories, the testing materials, the counseling and administration for these new programs. We are not ready yet—and we know that.
      • Bilingualism means more than j ust getting through the transition period from kindergarten to third grade—and then being transformed overnight into a “normal” student who works only in English. It means instead learning in two languages steadily right on through high school and college—so that in the end the language you bring to school and the language you find in school are tools you can use all your life.

      Most challenging of all, we know that there are still many American citizens who don't share our concern and don't understand the valuable resources that our multicultural population represents. In the crisis world of 1973, with inflation and shortages and world environmental problems pressing from every side, it is going to be even more difficult to make bilingual education a first priority. What can we do?

      Legislative Proposals: Promises and Constraints

      The Title VII Amendments now being considered by the Senate Education Committee will provide more money, more teacher training, a greater emphasis on biculturalism and on expansion into adult and vocational education, better supervision and administration, research into innovative techniques, and cooperation with state and local governments and with families and communities.

      The most important change in this legislation is that it presents the bilingual child as “advantaged and not disadvantaged” and it offers opportunities to the monolingual English-speaking child as well as to the child who is monolingual in another language.

      However, the money that we can honestly promise to appropriate will not be enough to do the job—not nearly enough. Before we can provide that kind of money from government at any level we are going to have to convince other Americans that bilingual education is not remedial or a program to help handicapped children.

      Bilingualism—Resource Education

      We are going to have to make all Americans understand that bilingual education is resource education—that it will provide better education for children who come to school speaking only English.

      We must somehow make sure that our neighbors and friends who are handicapped by not being able to speak any language except English understand the great gift which children who speak another language bring to the schools—a “gift” they can share with all children if they are talked to in that language.

      We must find a way that every child is allowed to learn about the many kinds of people who have written the history of America, and about the treasure of many cultures that are now ignored.

      People from many nations came here to find freedom—and brought with them the stored knowledge of their many homelands. Today, as a result of that rich heritage, we should be the focal point of understanding and progress.

      Knowing that, and understanding the thousands of ways in which America would be better today if we had taught our children about the riches of history and language and culture which were present in the Native Americans who were here first and in every group that came later, we can see now how foolish it was to try to melt people down into something homogeneous so that all Americans would be limited and identical.

      Multicultural Understandings: A Future Imperative

      The challenge we must take from this meeting is not only the challenge of increasing and improving bilingual education for minorities. We must also accept the challenge to provide for our country the multicultural knowledge which the twenty-first century will demand.

      We must see that every citizen in the United States understands that when children are asked to forget their own identity and their own traditions they do not miraculously turn into something better—instead, they shrink inside, and when that happens our whole nation shrinks too. As these small citizens are diminished, so the opportunities and knowledge and future of this nation are diminished too. The dollar loss is monstrous. For every child who only graduates from the eighth grade when he could have graduated from high school, the lifetime income loss is more than $100,000. Multiply that by the millions who drop out of the schools that fail to provide the education they need, and the gross productivity loss to the nation is staggering.

      But even more important to average Americans must be the loss of education their children could have had, but missed—the chance to learn two languages instead of one, the chance to expand into many cultures, instead of one, the opportunity to be ready for the many-cultured world of the twenty-first century instead of being forever handicapped by being both monolingual and monocultural.

      When we talk about bilingual education in the last 10 years, we have to say that in many ways we have failed. But in trying to solve the problem, we have learned; and we know enough now to be able to enlarge our own horizons and the horizons of every American.

      If we can leave this meeting in Albuquerque understanding that opportunity, we can more easily open the doors to rapid expansion of bilingual and bicultural education. But we will have done more—we will have started on the road to a multicultural America, a place of leadership in the multicultural world in which we must all learn to live harmoniously if we are to survive.

      1 Bilingual Education Reform Act of 1973—Companion Bills S. 2552 and 2553. introduced by Senators Montoya, Kennedy, and Cranston.

      Appendix E: Official English Legislation, Opposed

      Editor's Note: This statement summarizes arguments against making English the official language of the United States through Congressional action and/or by an amendment to the Constitution of the United States. It was originally prepared as testimony by Mr. James Crawford to a committee of the U.S. House of Representatives in 2006 and titled “Official English Legislation: Bad for Civil Rights, Bad for America's Interests, and Even Bad for English.” It is reprinted here with permission of the copyright holder. The opposing view is presented in the entry “Official English Legislation, Favored.”

      Testimony Before the House Subcommittee on Education Reform by James Crawford, Director, Institute for Language and Education Policy

      July 26, 2006

      Mr. Chairman and members of the subcommittee:

      My name is James Crawford. I am director of the Institute for Language and Education Policy, a newly formed nonprofit organization dedicated to research-based advocacy for English-language and heritage-language learners. We represent professionals in the field of language education who are working to promote academic excellence and equity for these students.

      I want to thank Chairman Castle and Representative Woolsey for the opportunity to present testimony regarding proposals to designate English as the official language.

      We at the Institute believe that such legislation is ill-advised: harmful to individuals, to the nation, and to the goal of language learning. We are concerned that the U.S. Senate recently passed a “national language” amendment without holding a single hearing to consider its potential impact and with only limited debate. So we commend the Subcommittee on Education Reform for convening today's hearing in the House. In our view, “official English” is:

      • Unnecessary—The overwhelming dominance of English in the United States is not threatened in any way. Newcomers to this country are learning it more rapidly than ever before. Our language does not need “legal protection.”
      • Punitive—Restricting government's ability to communicate in other languages would threaten the rights and welfare of millions of people, including many U.S. citizens, who are not fully proficient in English.
      • Pointless—Official-English legislation offers no practical assistance to anyone trying to learn English. In fact, it is likely to frustrate that goal by outlawing programs designed to bring immigrants into the mainstream of our society.
      • Divisive—The campaign to declare English the official language often serves as a proxy for hostility toward minority groups, Latinos and Asians in particular. It is exacerbating ethnic tensions in a growing number of communities.
      • Inconsistent with American values—Official-English laws have been declared unconstitutional in state and federal courts, because they violate guarantees of freedom of speech and equal protection of the laws.
      • Self-defeating—English Only policies are foolish in an era of globalization, when multilingual skills are essential to economic prosperity and national security. Language resources should be conserved and developed, not suppressed.
      Language and Liberty

      Our nation has gotten by for more than 200 years without adopting an official language. So the obvious question arises: Why do we need one now?

      Proponents of official English have responded with platitudes (“A common language is what unites us as Americans”) or truisms (“In this country it's essential to know English”) or anxieties (“Spanish is spreading at unhealthy rates”) or unsupported claims. (“Bilingual programs discourage people from learning English”.) These are not compelling arguments. They also reflect an ignorance of history.

      Language has been far less central to American identity than to, say, French or Greek or Russian identity. From its infancy the United States was conceived as a nation that newcomers could join, whatever their ethnic background,1 simply by swearing loyalty to the democratic principles on which it was founded. To be sure, there have been ugly episodes of language-based discrimination, such as the English Only school policies that once targeted Native Americans and Mexican Americans. Unlike many other countries, however, we have seldom passed laws to repress or restrict minority tongues. Language has usually been taken for granted here—as a practical rather than a symbolic issue—despite the diversity that has historically prevailed.

      Today there are more non-English languages spoken in America than ever before, owing to the ease of travel, which has brought immigrants from all over the world. But the proportion of minority language speakers was certainly as large, if not larger, in 1776, 1865, and 1910. Where immigrant groups were numerous and enjoyed political clout, they were often accommodated in their own vernaculars. Until the early 20th century, state and local governments provided documents and services in languages such as German, French, Spanish, Swedish, Norwegian, Welsh, and Czech. Bilingual education was more widespread in German and English in 1900 than it is today in all languages.2

      Despite or—more likely—because of these tolerant policies, immigrant groups gradually adopted English and stopped speaking their ancestral tongues. Sociologist Nathan Glazer has noted the irony: “Languages shriveled in the air of freedom while they had apparently flourished under adversity in Europe.” Except in a few periods of nativist hysteria, such as the World War I era, laissez-faire policies made language conflicts relatively rare in the United States.

      Is there any reason to abandon our tradition of tolerance now? Certainly there is no threat to English in America, no challenge to its status as the language of educational advancement, economic success, and political discourse. According to the 2000 census, 92% of U.S. residents speak English fluently; 96% speak it “well” or “very well” and only 1.3% speak no English at all.

      Language Spoken at Home and English-Speaking Ability, 2000
      All speakers, age 5+ 262,375,152 100.0%
      English only 215,423,557 82.1%
      Other language 46,951,595 17.9%
      Speaks English “very well” 25,631,188 9.8%
         “well” 10,333,556 3.9%
         “not well” 7,620,719 2.9%
         “not at all” 3,366,132 1.3%
      Source: 2000 Census of Population.

      Demographic research also shows that, while the number of minority language speakers is increasing, largely because of immigration, the rate of Anglicization is also on the rise. Immigrants at the turn of the 21st century are learning English—and losing other languages—more rapidly than those at the turn of the 20th.

      Official English is truly a “solution in search of a problem.”

      All Stick and No Carrot

      While official-English proposals vary, those now pending before Congress take a radical, restrictionist approach. They would not merely celebrate “our common language.” In addition, they would prohibit most uses of other languages by the federal government—whether to communicate information, provide services, or enable limited-English speakers to exercise rights they would otherwise enjoy.

      The assumption is that English Only policies would create an incentive to learn English by making life as difficult as possible for those who have yet to do so. Yet where is the evidence that the current patchwork of basic services in other languages provides a disincentive to English acquisition? How many immigrants say to themselves, for example, “If I can read pamphlets about Social Security in Spanish or visit a bilingual health clinic or rely on a court interpreter if I'm charged with a crime, why should I worry about learning English?” Don't limited-English speakers face language barriers in countless other situations on a daily basis? It would be irresponsible for Congress to legislate without empirical data in this area, considering that millions of people could be adversely affected.

      English-as-a-second-language instruction, by contrast, has proven quite effective in helping adult immigrants learn the language. Yet, to date, no official-English bill has included any provisions to address the chronic shortage of such classes in most parts of the country. Coercion, not empowerment, is the operative principle here.

      A major target of official-English bills, including the Senate's national-language amendment, is Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency.” The order, issued by President Clinton in 2000 and reaffirmed by President Bush in 2001, is grounded in Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of national origin in federally supported activities. It requires federal agencies and, equally important, programs that receive federal funding to “provide meaningful access” for those whose English is limited. These long-overdue efforts have just barely begun. Yet Official-English legislation would halt them in their tracks by overriding EO 13166, prohibiting assistance for limited-English-proficient persons in numerous areas. The national-language amendment in particular would instruct federal courts to disregard language as a factor in national-origin discrimination.3

      Federally funded programs include school districts, which currently have an obligation to communicate with parents, “to the extent practicable,” in a language they can understand. This right of access is mandated by the No Child Left Behind Act and by Title VI regulations enforced by the U.S. Office for Civil Rights. Official-English legislation would eliminate the requirement, making it difficult for the parents of English-language learners to assist in these students' education or to advocate for their children with school officials. This is just one of numerous ways in which English Only policies would be harmful not only to individuals but also to national priorities such as school reform.

      Sponsors of official-English measures have typically responded to such criticisms by carving out exceptions. Some bills would allow government to use other languages for purposes of national security, trade and tourism promotion, public health and safety, census activities, and so forth. The proposed loopholes are narrow, however, and would no doubt keep government lawyers busy trying to interpret their meaning. Could the Department of Veterans Affairs continue to publish pamphlets in Spanish to explain disability benefits for U.S. soldiers wounded in Iraq? Probably not. Could the Department of Labor keep funding state efforts to inform workers about wage-and-hour regulations in Chinese? Doubtful. Would the White House have to shut down the Spanish-language section of its web site? ¿Quién sabe?

      The constitutionality of such restrictions is questionable at best. The most draconian official-English laws at the state level, in Alaska and Arizona, were struck down under the First and Fourteenth amendments. State and federal courts ruled that, while advancing no compelling public interest, these measures violated free-speech and equal-protection guarantees.4

      Without exception, the bilingual assistance programs now provided by government are designed to safeguard the rights and serve the needs of limited-English speakers so as to help them acculturate. Those who are thereby brought into the mainstream are more able and more inclined to learn English than those remaining on the margins of society, unable to access government services. While English Only advocates seem intent on making a symbolic statement, their proposals would have very practical consequences in areas such as education, social services, civil rights, and government efficiency. Among other things, their proposals are bad for English acquisition.

      A Message of Intolerance

      The symbolic statement itself has consequences that are as damaging as the direct legal effects. English Only bills say, in effect, that the principles of free speech and equal protection apply only to those who are fully proficient in English; that discrimination on the basis of language is legitimate, even laudatory in America; and ultimately, that those from non-English backgrounds are unwelcome here.

      Whatever “message” the sponsors believe they are sending with this legislation, the message received is a message of intolerance. This phenomenon is evident in the language vigilantism that occurs every time the issue flares up, as local officials and individuals seek to impose their own English Only rules. Here are a few of the mean-spirited incidents that occurred after the House passed a “language of government bill” in 1996:

      • Tavern owners in Yakima, Washington, refused to serve patrons who conversed in Spanish, posting signs such as: “In the U.S.A., It's English or Adios Amigo.”
      • A judge hearing a child-custody case in Amarillo, Texas, accused a mother of child abuse for speaking Spanish to her five-year-old daughter.
      • Police in Yonkers, New York, ticketed a Cuban American truck driver for his inability to answer questions in English.
      • In Huntsville, Alabama, the county assessor refused to approve routine tax exemptions for Korean property owners whose English was limited.
      • Norcross, Georgia, authorities fined the pastor of a Spanish-speaking congregation for posting placards that allegedly violated an English Only sign ordinance.

      These acts are deeply offensive, not only to recent immigrants, but also to a broader population: persons who are proud of their heritage both as Americans and as ethnic minorities. As Senator Mel Martinez, a Cuban immigrant and a Republican from Florida, recently explained: “When they start saying that it's un-American to have ballots printed in Spanish, it sends a message that we're not wanted, not respected.”

      No doubt this is the message that some extremists intend to send—or to exploit—in hopes of building support for a restrictive immigration policy. In doing so, they are dividing communities across the nation. Two weeks ago the city council of Hazleton, Pennsylvania, coupled an official-English ordinance with harsh penalties for businesses that hire or landlords who rent to undocumented immigrants. The result has been to exacerbate tensions between longtime residents and recently arrived Latinos who are clearly being targeted. Similar proposals are fueling race hatred in municipalities from Avon Park, Florida, to San Bernardino, California.

      It's ironic that official-English legislation, promoted as a way to “unite Americans,” is having precisely the opposite effect: igniting ethnic conflicts. Congress should refuse to fan these flames.

      Instead of English Only…English Plus

      The aftermath of September 11 highlighted a longstanding concern of national security officials: the United States remains an underdeveloped country where language skills are concerned. When our military invaded Afghanistan to hunt down al Qaeda, five of that country's seven major languages—including Pashto, spoken by 8 million Afghans—were not even taught in U.S. colleges and universities.5 Meanwhile, the FBI was so desperate for translators of Arabic and the languages of South Asia that it was forced to place want-ads in newspapers, with problematic results.

      Monolingualism, for which Americans are justifiably notorious, is also an economic handicap. While English is indisputably dominant in global commerce, it is spoken by only a small minority of the world's population. As globalization increases, competitors who are proficient in other languages will have an increasing advantage.

      The President's National Security Language Initiative, designed to fund programs in critical languages such as Arabic, Chinese, Hindi, Russian, and Farsi, is a positive step. His proposed investment, however -$114 million in FY07, including just $24 million at the K-12 level—is ludicrous. If approved, it would have a limited impact relative to the nation's growing needs.

      Yet this is not just a funding problem. More important, it is an attitude problem. While a language learned in the classroom is valued in this country, a language learned by growing up in a minority community is likely to be considered a liability, not an asset. “Ethnic bilingualism” has enormous potential to supply the multilingual skills that America needs. Rather than cultivating it, however, we rush language-minority children into all-English classrooms as soon as possible. Most never get the chance to develop advanced skills, including literacy, in their native tongue. Although developmental bilingual education does exist, it is getting much harder to find. High-stakes testing in English for these students and, in some states, English Only instruction laws have forced schools to dismantle many bilingual programs.

      Instead of English Only, the United States needs a language policy that could be described as English Plus. This approach begins with the recognition that, of course, we should pursue the goal of English proficiency for all Americans. But while English is necessary, it is not sufficient in today's world. To prosper economically and to provide security for our people, we need well-developed skills in English, plus other languages. Step one is to conserve and develop, not destroy, the language resources we already have. Rather than treating bilingualism as a nuisance or a threat, we should exploit our diversity to enrich the lives of individuals and foster the nation's interests, while encouraging ethnic tolerance and safeguarding civil rights.

      We believe that a policy of English Plus would advance these important goals. Official English would be a step backward for the nation.

      1 Except in a few shameful cases, such as the Chinese Exclusion Act of 1882.

      2 For more details, see “Frequently Asked Questions About Official English,” an attachment to this testimony.

      3 Senator Inhofe, chief sponsor of the amendment, inserted a “legislative history” into the Congressional Record (18 May 2006, pp. S4754-55) that explicitly addresses these points.

      4 In 1997, federal district and appeals court decisions in Yñiguez v. Arizonans for Official English were vacated as moot by the U.S. Supreme Court on a technicality (the lead plaintiff, an Arizona state employee, had found another job). A year later the Arizona Supreme Court struck down the English Only law as unconstitutional. An Alaska district court reached the same result in 2002.

      5 According to the National Foreign Language Center at the University of Maryland, about 600 U.S. students were learning Farsi, the dominant language of Iran, which is a relative of Dari, spoken by about 5.6 million Afghans. There were just four U.S. students studying Uzbek, which has 1.4 million speakers in Afghanistan.

      Source: Copyright © 2006 by the Institute for Language and Education Policy. Reprinted with permission.

      Appendix F: Title VII Funding for States and Territories from FY69 to FY95

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