Laws, Policies, Rights, and Court Cases
It can be easy to get caught up in the weeds of supreme court decisions and legal jargon when trying to understand what rights are guaranteed to our children in schools. See below for simple explanations for people (me included!) that aren’t lawyers, along with the direct language used in the decisions.
Colorín Colorado has a wonderful resource that provides brief summaries of main cases and policies.
Additionally, check out this timeline of bilingual education in the United States
Check out these summaries of federal education legislation
Bennett Law
A Wisconsin law that was quickly repealed, but required major subjects be taught in English, a clear expression of anti-immigrant sentiment.
1889 Wisconsin Law
Context
“The Bennett Law was a Wisconsin state law that required that the major subjects in both public and private schools be taught in English. The law was proposed by Assemblyman Michael Bennett and was initally inteded to reduce truancy. The language provision became the subject of outrage, particularly among German Catholics and Lutherans, who had already established a successful system of parochial schools with instruction in German. The widespread opposition to the law among many German and Norwegian communities led to its repeal two years later, in 1891. While the law was short-lived and seldom enforced, it brought several immigrant factions together in opposition to nativist sentiments and early movements for Americanization.”
Rationale
“The Bennett Law was conceived by American patriotism to protect and bless the poor boy by assuring him the largest advantages of citizenship, especially by affording him, if the son of foreign parents, an equal chance in life. . . . It is American patriotism to provide that every child born in the land shall have one of the chief attributes of an American— a knowledge of the language of our people. . . . It is American patriotism . . . to demand that no boy, however obscure, shall grow up ignorant of the universal laws of communication in this land; that tongue in which the laws are written that govern him.”
Sources:
Wisconsin Talk
Meyer v. Nebraska
Not allowing foreign language instruction was in violation of the 14th amendment
1923 US Supreme Court
Issue
“In the early 1900s, German communities typically ran their own private schools where students received instruction in both German and English. Then, in 1919, Nebraska passed the Siman Act, which made it illegal for any school, public or private, to provide any foreign language instruction to students below the 8th grade. Roman Catholic and Lutheran German parochial schools joined together to file suit against the act under the 14th Amendment.”
Decision
“In a major victory for language-minority parents and communities, the Supreme Court struck down the states' restrictive legislation, ruling, in essence, that whereas state governments can legislate the language used for instruction in schools, states may not pass laws that attempt to prevent communities from offering private language classes outside of the regular school system.”
Rationale
“The Court declared the Nebraska law unconstitutional, reasoning it violated the liberty protected by Due Process Clause of the Fourteenth Amendment. Liberty, the Court explained, means more than freedom from bodily restraint. It also includes the right of a teacher to teach German to a student, and the right of parents to control the upbringing of their child as they see fit. While the state has a legitimate interest in encouraging the growth of a population that can engage in discussions of civic matters, the means it chose to pursue this objective was excessive.”
Impact
“Meyers is an important case because it makes clear that the 14th Amendment provides protection for language minorities. As the legal expert Sandra Del Valle (2003) points out, however, this decision did not give language minorities additional rights and privileges but simply ensured that "laws not be used as a rationale for denying them the same rights accorded others" (p. 39). Furthermore, because the focus of this case was on parochial schools, the decision was not an endorsement of bilingual education.”
Source: Oyez and Colorín Colorado
Bilingual Education Act
Federal support and funding for bilingual programs
1968 Amendment
What
Title VII of the Elementary and Secondary Education Act, a 1968 amendment to the 1965 ESEA
Impact
“…the first piece of United States federal legislation that recognized the needs of Limited English Speaking Ability (LESA) students. The BEA was introduced in 1967 by Texas senator Ralph Yarborough and was signed by President Lyndon B. Johnson on January 2, 1968. […] The bill was passed as Title VII, an amendment to the Elementary and Secondary Education Act (ESEA). While many states such as California and Texas already had local and state policies to help language minority students, the BEA established the first federal policy aiding students of LESA. Passed on the heels of the Civil Rights movement, its purpose was to provide school districts with federal funds, in the form of competitive grants, to establish innovative educational programs for students with limited English speaking ability. While the BEA addressed all linguistic minorities in the country, the passage of the act was spearheaded by Spanish speakers.”
Later changes
“Reauthorized in 1994 as part of the Improving America’s Schools Act, Title VII was restructured to provide for an increased state role and give priority to applicants seeking to develop bilingual proficiency.”
Prior to 1994, there was a series of modifications that were made.
“No Child Left Behind (NCLB), passed in 2002, had a significant impact on bilingual education and the Bilingual Education Act in the United States due to its emphasis on high-stakes testing. As a result of NCLB and its emphasis on testing, the Bilingual Education Act was renamed the English Language Acquisition, Language Enhancement, and Academic Achievement Act.”
Sources:
Lau v. Nichols
Effectively states legal right for bilingual programs
1974 US Supreme Court
Issue
“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 … 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.”
Decision
Initially ruled in favor of the school district, but the Supreme Court overturned the decision, stating by simply providing the same learning environment, the school district was not properly supporting its LEP (limited English proficient, an antiquated term) students.
Rationale
“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…. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful.
…school 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.”
Aftermath and Debate
“After the court's decision, the U.S. Department of Education's Office of Civil Rights created the Lau Remedies. Whereas Title VII Bilingual Education Act regulations applied only to funded programs, the Lau Remedies applied to all school districts and functioned as de facto compliance standards. Even though the court decision does not mandate any particular instructional approach, the Lau Remedies essentially require districts to implement bilingual education programs for LEP students.
Under the Lau Remedies, elementary schools were generally required to provide LEP students special English-as-a-second-language instruction as well as academic subject-matter instruction through the students' strongest language until the student achieved proficiency in English sufficient to learn effectively in a monolingual English classroom.
The essence of Lau was codified into federal law though the Equal Educational Opportunities Act of 1974 (EEOA).”
Some have voiced concerns over Lau, saying it encouraged transitional bilingual programs, ones where students were encouraged to quickly assimilate to English and shed their other language abilities, rather than maintenance bilingual programs that celebrated both. See this article in Rethinking Schools with Tony Báez and Bob Peterson, both Milwaukee educators, on how Lau impacted their work.
Source: Department of Education, Colorín Colorado, and Britannica
Castañeda v. Pickard
Quality ELL program needs to satisfy the 3-prong test:
Evidence-based
Well-implemented
Can demonstrate success
1981 US Court of Appeals
Issue
“Mexican-American children and their parents claimed that the district was discriminating against them, because of their ethnicity. They argued that classrooms were segregated using a grouping system based on racially and ethnically discriminatory criteria. School districts were required to establish bilingual education according to the Lau vs. Nichols ruling, yet, there was no way to evaluate the adequacy of the school’s approach. Consequently, sometimes it could result in inadequate separation.”
Decision
“This case was tried and on August 17, 1978 the judge ruled in favor of the defendant, stating that the district had not violated any of the plaintiff’s constitutional or statutory rights. The ruling was appealed and in 1981, the Fifth Circuit Court of Appeals ruled in favor of the plaintiffs.”
Impact
“Thus, the Castañeda standard, which encapsulates the central feature of Lau — that schools do something to meet the needs of ELL students — has essentially become the law of the land in determining the adequacy of programs for ELLs. Del Valle (2003), however, points out the shortcomings of the Castañeda test. Referring to prongs 1 and 2, she notes that nearly any program can be justified by an educational theory and that some approaches require very little in the way of staff or funding. Of even greater concern is that, under prong 3, a certain amount of time must pass before a determination can be made about the adequacy of the programs. Thus, many students may be harmed before inadequate programs are identified and rectified.”
Source: https://www2.ed.gov/about/offices/list/ocr/ell/lau.html and Colorín Colorado and Stanford
Plyler v. Doe
Non-citizen children are guaranteed education just like any other citizen student
1982 Supreme Court Case
Issue
Whether denying undocumented children of undocumented immigrants the right to attend public school constitutes discrimination based on alienage that violates the Equal Protection Clause of the Fourteenth Amendment?
Decision
Yes, it is a violation
Rationale
“Finally, the district court found that while barring undocumented children would save money, it would not necessarily improve the quality of the education. The court then concluded that illegal aliens were entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment and that the Texas legislation violated it.
Further, while persuasive arguments support the view that a state may withhold benefits from people whose presence within the country is a result of unlawful conduct, the children of such illegal entrants "can affect neither their parents' conduct nor their own status," and "legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice."
While the state has a legitimate interest in protecting itself from an influx of illegal immigrants, there was no evidence to suggest that any immigrants came to the country to avail themselves of a free education. Similarly, while the state has an interest in removing burdens on the state's ability to provide high-quality public education, there was no evidence that the exclusion of undocumented children was likely to improve the overall quality of education in Texas.”
Source: https://www.uscourts.gov/educational-resources/educational-activities/access-education-rule-law and Department of Education
Elementary and Secondary Education Act, Title III Part A
Help English Learners become proficient in English by providing funding and guidance to schools
2001 as part of NCLB, 2015 as part of ESSA
The DPI has published the following to support schools in carrying out Title III
What and Why
“The purpose of Title III is to help ensure that English learners (ELs) attain English language proficiency and meet state academic standards. […] Under Title III states are required to demonstrate that EL students are proficient in state content and achievement standards in mathematics, reading or language arts, and science, and that these students are progressing in their proficiency of the English language. Funds are provided for supplemental activities to support instruction, family engagement, and professional development as well as other activities aimed at improving outcomes for English learners.”
“To ensure that ELs are meeting these accountability metrics, Wisconsin has adopted the WIDA English Language Development Standards, and measures student achievement toward these standards through the annual administration of WIDA’s ACCESS for ELLs English language proficiency assessment.”
Through the Years
“The ESEA has been amended several times since it was first signed into law, most notably by the No Child Left Behind Act (NCLB) of 2001, which codified many of the EL-specific rules that we continue to follow today. In 2015 the ESEA was amended by the Every Student Succeeds Act (ESSA), which further clarified our responsibilities as they pertain to ELs.”
Who is Eligible
Public and charter schools are available for funding, whereas private schools are not. However, public schools must offer their services to private school students.
“Services provided by the LEA [local education agency] must be designed to meet the educational needs and supplement the services provided by the private school. In order to fully participate in services, private school officials will need to cooperate with public school officials to determine student eligibility; how the needs of the students will be identified; how the services (including family engagement activities) provided under each Title will meet those needs; and how services will be evaluated. Private school officials may choose not to participate in one or more the Titles under this Act.”
“…a state educational agency (SEA) shall not award a Title III subgrant to a local educational agency (LEA) if the amount is less than $10,000. Local educational agencies that do not meet the $10,000 threshold may form a consortium to qualify for these funds.”
Bilingual Education Act v.s. Title III
“There are several differences between the BEA and Title III Part A. Some of these differences include the emphasis on LEP students meeting content-based academic standards and concrete methods of assessment and accountability through AMAOs. The largest difference between Title III and the BEA is the change in pedagogy towards ESL education. Whereas the BEA encouraged bilingual and alternative language learning, Title III emphasizes the importance of English-language instruction and proficiency as soon as possible. Once students obtain proficiency in accordance with the standardized test provided, they no longer receive ESL support or services, and are no longer tested on their English-language proficiency. While supporters of Title III argue that it provides a more rigorous and highly structured approach to monitoring academic and linguistic gains of LEP students, opponents argue that the assessments are not conducive to accurately representing the students' progress.”
Other Support
“LEAs that have had a significant increase in immigrant children and youth may be eligible to apply of the Title III Immigrant Children and Youth Discretionary Grant.”
Sources:
Esther Martinez Native American Languages Programs Act
Aids in the preservation of American Indian languages
First approved by Congress in 2006
What
“…a bipartisan bill to expand the ANA’s grant program to bolster Native language immersion education programs. The legislation, which eventually became known as the Esther Martinez Native American Languages Preservation Act, was named after a traditional storyteller and Tewa language advocate from the Ohkay Owingeh Pueblo who tragically passed away in 2006.”
“The program works specifically works to:
Ensure the survival of Native languages. The survival of native languages is fundamental to the success of Native communities and survival of traditional Native cultures.
Establish immersion programs, which has been proven to be the best model for creating fluent speakers and successful Native leaders.
Create grants provided under Esther Martinez, to empower Native communities to establish immersion programs to revitalize Native languages and improve Native economies.”
2012 and 2019 Updates
“Between 2012 and 2018, the Department of Health and Human Services has continued to allocate funds for these grants, with about $10 million distributed to indigenous communities in FY 2018. After the original act expired in 2012, Congress has kept it alive via a series of annual appropriations.”
“This bill revises a grant program administered by the Administration for Native Americans at the Department of Health and Human Services to preserve Native American languages. The minimum number of enrollees in educational programs funded by grants is reduced from 10 to 5 enrollees in Native American language nests, which provide instruction through the use of a Native American language for children under the age of 7 and their parents. For survival schools, which are programs striving for fluency in a Native American language and proficiency in other academic fields, the minimum number of enrollees is reduced from 15 to 10. The bill increases the maximum duration of grants.”
Sources:
WI AB738
Wisconsin students do not have to learn about Hmong Americans
2020 Wisconsin State Supreme Court
Issue
Current law requires each school board to provide an instructional program designed to give pupils an understanding of human relations, particularly with regard to American Indians, Black Americans, and Hispanics. This bill directs school boards to include in that instructional program information related to understanding human relations with regard to Hmong Americans.
Decision
Failed to pass
Rationale
None provided.
Source: https://docs.legis.wisconsin.gov/2019/proposals/reg/asm/bill/ab738
State of Wisconsin Subchapter VII on Bilingual/Bicultural Education
https://docs.legis.wisconsin.gov/statutes/statutes/115/vii/95
https://dpi.wi.gov/english-learners/bilingual-bicultural
See below for how Wisconsin law currently views and supports multilingual education. These views do not necessarily reflect my own.
Thresholds for offering programming
Once one school in a district has enrolled the following populations of English learners who speak the same language, the district is required to create a plan for a bilingual-bicultural program and communicate that plan to parents in the school district. The number of students which trigger this requirement differs by grade level:
10 students in grades K-3
20 students in grades 4-8
20 students in grades 9-12
English is the language of our society…
“…the pupil will be able to participate fully in a society whose language is English.”
Parents/guardians can appeal a decision to not place a child in a program
“A parent or legal custodian may appeal the school board's failure to place the pupil in the bilingual-bicultural education program established for the pupil in the pupil's language group by filing a notice of appeal with the clerk of the school district within 10 days after the commencement of the school term. The school board shall provide for a hearing on the question of placement within 20 days after receipt of the notice of appeal and shall take a written record of the proceedings. The cost of taking the record shall be the responsibility of the school board. The parent or legal custodian may request a public or private hearing. Within 10 days after the hearing, the school board shall make a decision on the question of placement. If the parent or legal custodian is not satisfied with the decision of the school board, the parent or legal custodian may, within 10 days after the school board's decision, file a notice of appeal with the state superintendent.”
Recognition that English-only is not the best for all
“Classes conducted in English do not always provide adequate instruction for children whose English language abilities are limited or nonexistent. […] It is beneficial to pupils from bicultural and monocultural backgrounds to participate in bilingual-bicultural programs.”
…but we value those who speak more than one language
“….give special recognition to persons who possess a reading ability and speaking fluency in a non-English language and an understanding of another culture.”
Non-LEP students can participate in programs, though they don’t receive preference
“Pupils who are not limited-English proficient pupils may participate in a bilingual-bicultural education program, except that a school board shall give preference to limited-English proficient pupils in admitting pupils to such a program.”
School boards can, but don’t have to, prepare current and/or future staff to work in these programs
“The school board may institute preservice or in-service programs designed to improve the skills of bilingual teachers, bilingual teacher's aides, bilingual counselors, bilingual counselor's aides or other personnel participating in, or preparing to participate in, a bilingual-bicultural education program.”
Goal is to move away from bilingual-bicultural instruction
“It is the policy of this state that a limited-English proficient pupil participate in a bilingual-bicultural education program only until such time as the pupil is able to perform ordinary classwork in English.”
Parents/guardians must be notified
“Annually, on or before April 1, a school board which may be required to offer a bilingual-bicultural education program shall send to the parent, legal custodian or guardian of every limited-English proficient pupil identified under sub. (1) who is eligible for participation in such a program, a notice which states that a bilingual-bicultural education program may be instituted, contains information on the procedures for registering a pupil in such a program, and provides notice of the consent required under sub. (3). The notice shall be in English and in the non-English language of the limited-English proficient pupil.”
If there isn’t a bilingual staff member, an ESL teacher can step in, so long as it isn’t Spanish
“…if a school board is required to establish a bilingual-bicultural education program […] but bilingual teachers for the language groups are unavailable, the program may be taught by certified teachers of English as a 2nd language upon receipt of approval of the state superintendent. The state superintendent may approve a program under this paragraph only if the school board demonstrates all of the following:
1. Compliance with all other requirements of this subchapter.
2. A good faith, continuing effort to recruit bilingual teachers for the language group.
3. Employment of at least one bilingual teacher's aide in the program.
(b) [This exception] does not apply to a program for Spanish-speaking pupils.”
State of Wisconsin Chapter PI 13 Limited English Proficient Pupils
https://docs.legis.wisconsin.gov/code/admin_code/pi/13/II/09
See below for how Wisconsin law currently views and supports multilingual education. These views do not necessarily reflect my own.
Assessment procedure for potential LEP students
The assessment procedures used under this section may include supplemental indicators or data that include any of the following:
(1) Prior academic records from within or outside the United States.
(2) Course grades which, in relation to the pupil's grade level, indicate that lack of progress is due to limited English language skills.
(3) Information on everyday classroom performance.
Rights of LEP students
The school board shall provide each LEP pupil with an effective instructional program and supportive services appropriate to meet the needs of the pupil.
The school board shall provide each LEP pupil with full access to supportive services, such as language development and speech therapy available to other pupils in the school district as such services are appropriate to the individual needs of the pupil.
The district shall provide programs and services that reflect the cultural background of the LEP pupils and may include instruction intended to improve the skills of such pupils in the use of their native language for the purpose of enabling them to become proficient or advanced in all subject areas.
Classification of LEP
Students are classified into 6 levels, ranging from 1 - Beginning Reproduction to 6 - Formerly LEP, Now English Proficient
Testing accomodations
“Any accommodations made shall maintain the validity of the test as determined by the department and may include, but are not limited to, one or more of the following:
(a) For tests that do not assess English language competency, provide translations in a student's native language or the assistance of a qualified translator to translate instructions or read test items.
(b) Provide small group or individual testing opportunities.
(c) Provide more practice tests or examples before the actual test is administered.
(d) Allow LEP pupils to use dictionaries and other educational aids while taking the test unless this use would invalidate the test.
(e) Allow pupils as much time as necessary to complete the test.
(f) Allow any other method approved by the department.”
The extent of a test
“Test results may not be used as the sole criterion in re-classifying an LEP pupil from a bilingual-bicultural education program or in determining grade promotion, eligibility for courses or programs, eligibility for graduation or eligibility for participation in postsecondary education opportunities.”
Parents/guardians must be notified
“Annually, on or before April 1, a school board which may be required to offer a bilingual-bicultural education program shall send to the parent, legal custodian or guardian of every limited-English proficient pupil identified under sub. (1) who is eligible for participation in such a program, a notice which states that a bilingual-bicultural education program may be instituted, contains information on the procedures for registering a pupil in such a program, and provides notice of the consent required under sub. (3). The notice shall be in English and in the non-English language of the limited-English proficient pupil.”