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Basis for English Learner Programs

There are Federal and State laws that establish the rights of English Learners (ELs), and define the responsibilities of school districts serving them. In this section are some of the most pertinent Federal laws, court rulings, and State laws affecting the education of ELs followed by a brief explanation of how these laws are enforced. Also included is the District Board Policy on bilingual education.

Federal Law

The most important Federal laws establishing the rights of all students are set forth in:

Constitution of the United States, Fourteenth Amendment (1868)

The 14th Amendment to the Constitution of the United States guarantees that “. . . No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

Civil Rights Act, Title VI (1964)

Title VI of the Civil Rights Act of 1964 declares that “. . . No person in the United States shall, on the grounds of race, color or national origin . . . be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Equal Educational Opportunities Act (1974)

The Equal Educational Opportunities Act makes educational institutions responsible for taking the necessary steps to overcome linguistic and/or cultural barriers that keep students from equal participation in instructional programs. Specifically “. . . 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 of an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs . . .”

Supreme Court

In addition to the Federal laws, the following select court rulings further define the rights of English Learners:

Lau v. Nichols (1974)

In Lau v. Nichols (1974), the United States Supreme Court held that San Francisco’s failure to provide supplemental English language instruction to 1,800 students of Chinese ancestry violated Title VI of the Civil Rights Act (42 USC, Section 2000d).

In a unanimous decision, the Supreme Court declared that equality of educational opportunity for students who do not understand English requires that they not only have access to “the same facilities, textbooks, teachers and curriculum. . .” but also requires that they have access to learn the English language. Regardless of other factors, the Court found that “. . . students who do not understand English are effectively foreclosed from any meaningful education” when their opportunities to learn are limited to exposure to instruction in a language they do not understand.

Lau also establishes a district’s obligation to provide English Learners with meaningful access to the educational program. When a parent declines participation in a particular formal language instruction program, the district must continue to ensure that the student has an equal opportunity to have his or her English language and academic needs met.

Because the District also operates under the Lau Consent Decree, which is the result of the District’s settlement, our alternate program options must include immediate access to bilingual, bicultural programs in the major languages of students in the District. Currently, the parents of all English Learners in the District complete forms indicating their program choice.

Castañeda v. Pickard (Texas, 1981)

While Lau was important in the development of the legal basis to defend the rights of English Learners, Castañeda has a special relevance, since it provided—and still provides — important criteria for determining a school’s degree of compliance with the Equal Educational Opportunity Act of 1974.

In the Castañeda suit, parents of Mexican American children charged the Raymondville Independent School District (Texas) with instructional practices that violated their children’s rights. Those practices included “ability tracking” of students on the basis of discriminatory criteria that caused the segregation of Hispanic students; discriminating against Mexican Americans in the recruitment and hiring of school personnel; and failing to develop bilingual programs that facilitated learning by language minority students.

Reversing an initial District Court finding, the Fifth Circuit Court of Appeals agreed with the Mexican American plaintiffs. It then went on to formulate a test to determine school district compliance with the Equal Educational Opportunities Act (1974). Compliance requires the satisfaction of three criteria:

  1. Theory: The school must pursue a program based on an educational theory recognized as sound or, at least, as a legitimate experimental strategy
  2. Practice: The school must actually implement the program with instructional practices, resources, and personnel necessary to transfer theory into reality
  3. Results: The school must not persist in a program that fails to produce results

It is significant to note that, while the Castañeda ruling was handed down in the Fifth Circuit Court of Appeals—whose jurisdiction includes Texas, Louisiana, and Mississippi—the Castañeda test has been applied in a number of different states, including California.

California Law

Former State Bilingual Education Act: AB 507

This act (1984) established specific bilingual program requirements for identification, instruction, staffing assignments, classroom composition, reclassification, and parent involvement.

Education Code 300-340 (Proposition 227)

In June of 1998, California voters passed a referendum known as Proposition 227. With the passage of Proposition 227 came a series of mandates that directly affected classroom experiences for English Learners statewide, mainly, placing English instruction as the top priority in programs for English Learners.

The provisions set forth by Proposition 227 mandated a “structured English immersion” or “sheltered English immersion” program in which “nearly all classroom instruction is in English but with the curriculum and presentation designed for children who are learning the language.” The new law specified that children must be placed “for a period of not less than 30 days during that school year in an English-only language classroom before a parental waiver would be able to move the child into an alternative program.” Under this law, parents have the option to complete a waiver, directing the district to place their child in an alternate program.

Proposition 227 did not eliminate bilingual education or the requirements for CLAD/BCLAD teacher certification. The law maintains that if there are 20 families of the same language at the same grade level that request bilingual education classes at a school, the school is required to set up a program.

Enforcement Policy

The Office for Civil Rights (OCR) of the U.S. Department of Education is charged with monitoring school districts’ compliance with the Civil Rights Act of 1964.

The Office for Civil Rights (OCR) does not prescribe a specific educational program that will provide adequate learning opportunity for English Learners. Rather, each school district must choose a proven approach, or an approach that promises to be successful, and is most appropriate to its own needs, conditions, and resources. The OCR, however, requires that all programs carry out certain basic functions by which schools will:

  • properly identify students who need language services
  • develop programs that are effective in promoting learning
  • provide adequate teachers, educational materials, and physical space
  • adequately evaluate students’ progress
  • evaluate the whole program on an ongoing basis and implement changes when and where they are found to be needed.

OCR investigates complaints that allege a district’s failure to comply with these requirements or with the Civil Rights Act of 1964. According to the May 25, 1970, Memorandum of the Office for Civil Rights, school districts must meet four fundamental responsibilities, which are:

  1. To take affirmative steps and employ adequate resources to ensure that students acquire proficiency in the language of instruction.
  2. To refrain from placing students in classes for the developmentally disabled on the basis of criteria which essentially measure English language skills, or to deny access to college preparatory courses as a result of the school’s failure to impart necessary English language skills.
  3. To employ no grouping or tracking systems which impede national origin students’ educational development, or that operate as dead-end or permanent tracks, but to stimulate learning and the mastery of English as quickly as possible.
  4. To ensure that parents with limited English proficiency receive information about school activities in a language that they understand.

In addition, every four years, the California Department of Education conducts a Categorical Program Monitoring (formerly CCR) of programs to ensure that schools and districts are in compliance with the laws protecting language minority children and the services they receive.

The District bilingual programs and their services to English Learners were established according to SFUSD Board of Education Policy, which is based on the Lau requirements and statutes included in the California State Education Code Section 62002. These requirements are mandated for all districts that enroll English Learners.

The SFUSD Board Policy on Bilingual Education, which was adopted in 1974 and revised in 1998, mandates specific services and goals for English Learners. Among these are the following:

All English Learners will:

  • attain English proficiency and meet the same challenging academic content and achievement standards that all students are expected to meet
  • continue cognitive and academic development through native language instruction for which a waiver is granted for an alternative program (pursuant to the Lau Consent Decree)
  • develop and deepen their positive self-concept while respecting their own and other cultures
  • have access and participate fully in the variety of educational programs offered throughout the school district
  • maintain and/or develop proficiency and literacy skills in English, and, pursuant to the Lau Consent Decree, in their native language when needed by the student and/or desired by the parents/guardians in order to maximize learning potential and develop linguistic and cultural resources

The Board of Education also established policy on engaging and empowering the parents of linguistically and culturally diverse and lower socioeconomic status students.