English as a Second Language - Education Law
Over the past four decades, numerous federal policy initiatives and judicial decisions have emerged to address the education of students with limited English language skills. Throughout this time period, students with limited English language skills have been referred to as English as Second Language (ESL) learners, English speakers of other languages (ESOL), English language learners (ELL), or limited-Englishproficient learners (LEP). LEP is frequently used in schools because of the federal reference to students who are LEP in Title III of the No Child Left Behind Act (NCLB) of 2002. For clarity purposes, this entry refers to students with limited English language skills as English language learners (ELLs), because ELL is preferred by advocacy groups, has less judgmental implications than LEP, and is a more accurate description of students than identifying them as ESLs.
Although non-English-speaking students are often referred to as ESLs, “English as a Second Language” is actually an instructional program for ELLs. In response to federal initiatives and to the increasing number of students whose native language is not English, public school systems have adopted various programs and services to address the needs of ELL students. One such program, ESL, focuses on providing specialized, and often intensive, instruction in English. ESL differs significantly from bilingual education programs because in ESL programs, instruction is focused on English comprehension. Bilingual education, on the other hand, is a program that provides dual-language instruction in major content areas.
Despite the instructional differences, both ESL and bilingual education programs emerged as methods to promote the educational and future success of ELLs. The Bilingual Education Act in 1968 initially addressed the rights of ELLs in public schools, mandating funding for bilingual education programs. However, this act did not provide clear guidelines to school systems. In 1970, the Office of Civil Rights (OCR) issued a memorandum concerning the rights of ELLs in public school systems.
As a regulatory body within the U.S. Department of Education, the OCR is charged with enforcement of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in programs and activities that receive federal financial assistance. During the late 1960s, the OCR became concerned about the lack of public school services being provided to students with insufficient English language skills. Prompted by these concerns, the OCR issued a memorandum, “Identification of Discrimination and Denial of Services on the Basis of National Origin,” to explain the requirements of Title VI of the Civil Rights Act of 1964 to school officials.
According to this memorandum, national origin minority group children who do not speak or understand the English language are denied an opportunity to effectively participate in schools’ educational programs. The memorandum requires school board officials to take positive steps to correct each child’s language deficiencies in order to provide access to the instructional programs. Pursuant to the memorandum, school board officials were alerted that they would have violated Title VI if students were (a) excluded from educational programs as a result of their limited English language skills, (b) identified inappropriately as mentally retarded based upon their limited English language skills, (c) placed in dead-end programs or in programs that fail to promote the development of English language skills, (d) or disadvantaged when school notices and other information are not provided to their parents in a language that the limited-Englishspeaking parent can understand. Although the memorandum did not identify specific steps that educators should take, several school systems responded by adopting ESL or bilingual education programs.
Non-English-speaking students and their parents have voiced their concerns over the adequacy and effectiveness of programs and services in federal courts. For example, in Lau v. Nichols (1974), non-English-speaking Chinese students sought to compel the San Francisco Unified School District to provide all non- English-speaking Chinese students with bilingual compensatory education in the English language. The U.S. Supreme Court held that the San Francisco School System was denying the non-English-speaking students’ rights to an equal education as required by the Civil Rights Act of 1964 § 601. Nonetheless, the Court failed to identify specific remedies to redress the school district’s discriminatory practices. As a result, there was no clear mandate to the San Francisco Unified School District or to other school systems regarding the provision of specific programs or services that would satisfy the obligation to educate non-English-speaking students in a nondiscriminatory fashion pursuant to of the Civil Rights Act of 1964 §601.
In Castaneda v. Pickard (1981), the Fifth Circuit reasoned that the provision of bilingual education by the Raymondville, Texas, Independent School District (RISD) did not violate Title VI of the Civil Rights Act of 1964. In so ruling, the court established a three-part test to guide the efforts of school officials to take “appropriate action” as required by the Equal Educational Opportunity Act of 1974 (EEOA) in seeking to meet the educational needs of ELLs. According to the test, school programs are to be judged using the following three guiding questions: Is the educational theory on which the program is based sound? Is the program being implemented effectively? Is the program achieving results in overcoming language barriers confronting ELLs? As evidenced by these standards of analysis, neither bilingual education nor ESL programs were specifically designated as preferred instructional methods to promote the educational rights of ELLs.
Immersion and English-only programs have gained favor in state and federal political arenas, as evidenced by state initiatives such as Proposition 227 in California and Proposition 203 in Arizona. In both states, voters supported these propositions, initiating a change in educational programming for non-Englishspeaking students. Thus, English-only and immersion programs replaced bilingual education and ESL programs in many school districts throughout California and Arizona. When adopting ESL or bilingual education programs, schools are also guided by Title VI of the Civil Rights Act of 1964, by Lau and Castaneda, and by the Bilingual Education Act, which has been reauthorized as Title III of the NCLB and is now referred to as the “English Language Acquisition Act.”
Susan C. Bon
See also Bilingual Education; Brown v. Board of Education of Topeka; Civil Rights Act of 1964; Lau v. Nichols; Limited English Proficiency
- Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981).
- Lau v. Nichols, 483 F.2d 791 (9th Cir. 1973); 414 U.S. 563 (1974).
- No Child Left Behind Act, 20 U.S.C. §§ 6301 et seq. (2002).
- Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.