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Actions Speak Louder: The Legacy of English as a Second Language Instruction in the Courts

aphorisnt's picture

    The United States of America is a nation of immigrants. Try as some of the more conservative and nativist set might, no one living in the US (save those of first nations descent) can honestly claim to have no immigrant history. In light of this national heritage it is slightly peculiar the amount of disdain with which older established immigrants have treated the more recent set. There exists in the historical context an extensive history of legislation barring the entry of people from other nations–the Page Act (1875), the Chinese Exclusion Act (1882), the Emergency Quota Act (1921), etc.–to satisfy baseless prejudices and promote a rather hypocritical brand of ethnocentrism that seemed to believe there was any sort of racial or ethnic status quo to maintain. In short, one need not search too hard to find racism when immigration is on the table.

   It is in this same exclusionary vein that educational policies regarding non-English speakers first began. Martha Minow discusses this subject:
“Historically, children who are immigrants, children of immigrants, or children learning English have faced complete exclusion from school, assignment to segregated schools, punishment for speaking their native language, bans against instruction in their family’s language, and formal and informal pressures to abandon family language and culture” (2010).
The US Constitution and Bill of Rights guarantee numerous rights and freedoms meant to be enjoyed by all citizens, but no where is there a provision for equal access to education. At neither the state nor the federal level did any legislation provide for the right to an education for all children and adolescents meaning school districts had no impetus or incentive to necessarily offer programs for those students who lacked proficiency in English, a rather cruel irony given that education was and still is compulsory for all children. Here were students legally obligated to attend classes for several hours a day while unable to understand much if any of the materials taught, and of course this was despite that fact that a large number of students in particularly the Southwest and major urban areas fell into this category. However, one court case in 1974 helped to reverse this trend and provide for effective programs for English language learners in public schools across the nation.
    The San Francisco public school system in 20th century offered few if any English as a second language (ESL) programs to non-English speaking students, a troubling fact given the high concentration of immigrant Chinese students within the district. Of the Chinese American students in the district about 1,000 received supplemental English education while the majority 1,800 did not (Lau v. Nichols 1974). Students who had fallen victim to the district's “sink-or-swim” approach to ESL–full “immersion” by thrusting students into a classroom with English-only instruction and waiting for them to catch on–sought legal action to challenge this methodology. The eponymous Kinney Kinmon Lau was one of just many students to have come through the wringer that was the district’s ESL program. Born in Hong King, Lau “recalled feeling lonely and isolated in school when he knew little English,” an unsurprising claim given the obvious language barrier to forming relationships with other students (Minow 2010). Yet at the same time. Lau felt pressure to avoid an ESL program because “other students ‘laughed at you’ if you were labeled as an ESL student” (Minow 2010). Lau found himself in a catch-22 where he would either struggle through classes he could not understand or face ridicule from his peers and constant pressure to abandon his own language and culture through participation in the school system. Of further note, none of the district’s teachers actually spoke Chinese so the efficacy of separate ESL programs is debatable (Minow 2010). It was after this harsh experience that several plaintiffs sued Nichols et. al. on the grounds that such exclusionary educational practices violated the Civil Rights Act of 1964 and the 14th Amendment in the hopes of preventing future students from facing the same indignities.
    Despite early losses at the local level, Lau v. Nichols worked its way up to the Supreme Court where after much deliberation the justices sided with the plaintiffs. Justice Douglas stated in his majority opinion
“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” (Lau v. Nichols 1974).
Because language stems from a person’s race/country of origin it technically falls under the purview of The Civil Rights Act of 1964, meaning the courts have legal justification to rule against the San Francisco school district’s treatment of ESL students. Lau v. Nichols also borrowed language from Brown v. Board of Education stating that “there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum” for equality among materials does not equate to equality of instruction (Lau v. Nichols 1974). To truly achieve equality in education, one must ensure that education is understandable and meaningful to the intended student, otherwise the student ultimately learns nothing.
    Lau was a landmark case for ESL education programs as it established the legal mandate for providing meaningful education regardless of language. Proper education in and of itself is deeply important and integral to later success, and in the US proficiency in English plays a major role in achieving that success. Without proper programs in place to actually learn, “non-English speaking students are doomed to poor achievement, illiteracy, and disproportionately high dropout rates,” which has serious implications for students later in life as they enter the workforce and try to build lives for themselves (Sugarman and Widess 1974). Moreover, Supreme Court decisions have given credence to the belief that “at least a minimal education is absolutely essential to the social, economic, and political well-being of an individual in American Society” (Sugarman and Widess 1974). If students lack the ability to communicate effectively with employers and coworkers or struggle to even graduate from high school in the first place, much less pursue higher education and advanced degrees, they cannot expect even a modicum of the glittering future that is the American Dream their English-speaking classmates are free to pursue and realize. The ruling then helps combat harm both mental/emotional and economic to the student in question. Additionally, Douglas included a statement in the majority opinion regarding ability grouping and tracking procedures for ESL programs, articulating that such systems “must be designed to meet [students’] language skill needs as soon as possible and must not operate as an educational dead end or permanent track” (Lau v. Nichols 1974). A number of public schools used the ESL designation to segregate minority students to such “dead end” classes thereby separating them from the native-speaking high-achieving class of students. ESL students would languish in these programs learning little to nothing to help them advance or would stay in ESL classes even after developing some proficiency in English–sometimes until graduation–for a variety of reasons. Some schools elected to keep ESL students out of the mainstream so those students would not have to take standardized tests and possibly jeopardize the district’s chances for securing funding. Others simply preferred a policy of less-than-benign neglect. By placing those students who could not speak or understand enough English to join the mainstream in ESL classes the district could get by, checking the box that they had done what was required for these students while putting no effort (or money) into designing effective programs or securing proper faculty and staff. Ability grouping offered another option. Schools could identify those students who would most quickly learn English and enter the mainstream and funnel all resources into those select few while the remaining groups were all but forgotten. Lau fortunately shut down this entire process and required truly beneficial practices in ESL programs, thereby securing the right for those students to learn with dignity.
    Lau also led to the establishment of the Lau Remedies which, unlike the statutes of the Bilingual Education Act, applied to all programs in public school systems, funded or otherwise and required districts to offer bilingual ESL programs to students still learning English (Robertson 2007). These remedies also codified the process for evaluating ESL students’ English skill level, identifying the best instructional method for each situation, determining when students had English skill sufficient to join mainstream education, and establishing best practices for instructors (Robertson 2007). Beyond the Lau Remedies, the court ruling became law under the new Equal Educational Opportunities Act of 1974 (EEOA). The EEOA proclaims “no state shall deny educational opportunities to an individual on account of [their] race, color, sex, or national origin” in language that closely mirrors th Civil Rights Act of 1964 and the majority decision of Brown, and additionally promises funding for schools taking action to ameliorate the current ineffective ESL programs (Robertson 2007, Minow 2010). However, despite all the other goods brought about by Lau, one outcome of this majority opinion stands paramount above the rest: Lau was interpreted to make access to education a constitutional right guaranteed to all (Robertson 2007). What was once reserved only for those who could achieve access based on their privilege–of race, class, or in this case language–could for the first time be counted among those fundamental rights as freedom of speech or the right to vote. Overtly restricting access and opportunities to learn could no longer be justified or ignored as schools across the country began to enact the necessary reforms to build a better language program.
    Granted, the ruling was not perfect and the subsequent EEOA was not without faults. No where in the ruling did it state what sorts of programs schools must implement to meet EEOA standards. “The plaintiffs did not ask for, nor did the Court elaborate on, a specific kind of instruction schools should adopt” and merely required that all schools “take some affirmative respond to the different situation of students lacking English proficiency” (Minow 2010). In short, the Court demanded schools do something but had nothing to say as far as what that something was. The EEOA itself lacked any sort of formal criteria by which to evaluate ESL programs so individual districts and schools needed to determine the nature of their own programs: would they chose a bilingual program? or bilingual-bicultural? would classes be separate or would they involve a pull-out program? what sort of staff did they need? what resources? The list of unanswered questions goes on and on leaving schools to hope for the best and students and teachers to trust in the school system’s best judgement. What is worse, though Lau implied education was a constitutional right, it never formally declared this sentiment nor was a provision regarding education officially added to the Constitution. A right to education is a great idea and in theory makes sense, the Court seemed to say, but do not count on us to act on this belief and do anything about it. In fact, in San Antonia Independent School District v. Rodriguez, a 1973 case involving funding to schools with a majority of minority students, the Court ruled “there is no fundamental right to an education guaranteed by the Constitution” or if such guarantee could be extrapolated, “‘there is clearly no constitutional right to a bilingual education” (Robertson 2007). Further cases continued to erode the victories Lau achieved, leading up to the equally landmark 1981 case of Castañeda v. Pickard. Castañeda determined the criteria by which to test ESL programs:
Programs must be based on a sound education theory.
 Programs must be implemented effectively with sufficient resources and personnel.
Programs must be evaluated to determine whether they are effective in helping students overcome language barriers (Robertson 2007).
The problem with this “test” lies in its wording and methodology. Any program can be based upon an educational theory but whether that theory is actually effective would take time to be proven. Thus, when the ESL program is finally ready for evaluation the school could have easily caused further harm or in the very least brought about zero progress among those students in the program. Furthermore, the word “sufficient” offers no insight into what resources students need, how much of those resources constitutes “enough,” how many staff members programs should involve, and what qualifications those staff members might need. Ultimately the ball was back in the individual schools and districts’ court and decisions regarding implementing ESL programs would have to come on a case by case basis.
    Later rulings may have watered down the impact of Lau, but the fact that such a ruling passed at all still stands as a massive victory for equity in education. With intentional racial segregation officially outlawed language remained one of the final barriers to integration as schools could keep minority students out of white classrooms under the guise of language-based separation. Non-English-speaking students were barred from education outright for years before barriers to just entry came down but ESL programs in some schools and districts worked to preserve that legacy. With Lau schools could no longer hide behind “programs” that simply put ESL students in a separate room or left students to self-educate with no proper instruction and even with its vast shortcomings Castañeda did in the least provide a framework  for the evaluation of programs. Modern gains for ESL programs remain to be seen, but nonetheless Lau offered the foot in the door and laid the groundwork for more victories to come.


Works Cited
Lau v. Nichols (2014) (FindLaw, Dist. file)

Minow, M. (2010). Expanding Promise, Debating Means. In In Brown's Wake: Legacies of America's Educational Landmark (pp. 33-68). New     York, NY: Oxford University Press.

Robertson, K. (2007). How to Address Special Education Needs in the ELL Classroom.     Retrieved October 9, 2014, from

Sugarman, S. D., & Widess, E. G. (1974). Equal Protection for Non-English-Speaking School     Children: Lau v. Nichols. California Law Review, 62(1), 157-182. Retrieved October 9,     2014, from    article=2562&context=californialawreview