Limited English Proficiency - Education Law
All demographers have noted that the United States is clearly experiencing a high growth in students who are English language learners (ELLs). Moreover, almost all researchers predict this trend will continue and increase substantially. How school officials respond to the challenge to meet the needs of students who seek to learn English in an appropriate way will determine much of the future of American education. This entry describes how politics is influencing decisions that schools make in this area.
Unfortunately, this area of educational praxis is highly politicized and controversial. In American education law and politics, there is no more volatile mix of policy, research, folklore, myth, and xenophobia than in the various state and federal laws and regulations addressing the needs of language minority students attempting to learn English. As a result, even the term bilingual has become polemic.
Bilingual is monolithic neither in its meaning nor in the programs it describes. The term is generally used as a label to describe several programs and a group of theories and varied implementation practices to address the needs of ELLs in public education that to some extent utilize the abilities of students with their native languages to facilitate acquisition of the target languages. However, the term bilingual, and thus to some extent the methodology it employs, has become politicized. The administration of President George W. Bush has excised the term bilingual from almost all documents, and the word is almost nonexistent in the extensive No Child Left Behind Act (NCLB) (2002). The Office for Bilingual Education and Minority Language Affairs of the United States Department of Education has undergone a name and focus change, with the word bilingual being excised from its name and focus. Currently, it is called the Office of English Language Acquisition, Language Enhancement, and Academic Achievement for Limited English Proficient Students.
In such a policy environment, it is difficult to conduct, access, and utilize research in meeting the needs of language minority students. Some states have actually outlawed bilingual methods for meeting the needs of ELLs. The laws in these states have declared that immersion or sheltered immersion for a year by waiver, followed by immersion in the target language, is the only worthwhile and certainly the only legally allowable methodology. The first of these was passed by referendum, Proposition 227 in California, followed by similar but increasingly stringent referenda in Arizona and Massachusetts. Totalizing pronouncements in these referenda laws, such as the following from California, have replaced research on language acquisition: “Whereas, young immigrant children can easily acquire full fluency in a new language, such as English, if they are heavily exposed to that language in the classroom at an early age.” Such authoritative pronouncements do not necessarily reflect all or even most of the research in this area.
The results of research on bilingual methodologies have, in fact, often contradicted the reasoning behind current administration policy. For example, a recent meta-analytical study combining earlier research regarding the effectiveness of bilingual versus monolingual educational methods, conducted by a panel of researchers selected by the Bush administration, found small to modest gains from bilingual programs. The researchers also discovered that greater gains were revealed in those studies that used random assignment and other more rigorous and effective research designs. However, after seeing the findings, the Bush administration declined to release the report.
Current anti-intellectual or anti-research policy mandates notwithstanding, language minority students still have the bedrock right, based on the classic case of Lau v. Nichols (1974), to receive some type of language intervention or program that will enable them to benefit from public education. This seminal case was followed by legislation codifying its holdings in the form of the Equal Educational Opportunity Act. The act requires that equal educational opportunity must not be denied any individual as a result of “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.”
No Child Left Behind
Currently, the impact of the NCLB on ELLs is significant. Other than receiving exemptions for their first year of enrollment in the U.S. education system, such learners are generally required to take the same state assessments required of native-English-speaking students in the third and eighth grades. Officials in local school systems can make some accommodations for ELL students so long as they have not yet attended 3 years of public instruction in the United States. These accommodations may include options such as small-group administration of examinations, extra time to complete examinations, and simplified instructions. These accommodations may even include native language examinations for reading/language arts assessments for 3 to 5 years if states allow for such modifications. In addition, school officials must assess ELLs annually on their English proficiency in the areas of reading, writing, speaking, and listening in English.
NCLB is salutary because it provides information about the progress of ELLs through the provision of disaggregated data about their performance. Yet since school systems are assessed as failing or not based on how quickly and how many ELLs are moved into the status of “English proficient,” the statute forces schools to push students to quickly display minimal English proficiency for their own benefit under the NCLB. This approach ignores theories regarding practices that result in high-level acquisition of English. It is possible that rushing to show low-level proficiency by moving students quickly into Englishproficient status, and thus into immersion in English, causes school systems to tend to ignore programs and theories that may require more instructional time but may result in a higher-level acquisition by ELLs of English and academic content at the same time. Due to the NCLB’s mandates and the political climate, late transition bilingual and dual-immersion programs may not survive the current policy strife in most states. The net result is that studies of educational and linguistic gains or features of these programs may not be available as a laboratory to compare with the current penchant for short-term basic language proficiency.
Certainly, the coming decade will call for assessment of group outcomes of ELLs in terms of their access to higher education and full participation in the American economy under the current educational policies. It is one thing to be classified quickly as being “proficient” or making “adequate yearly progress” on an average level. It may be very different, and require different methodologies, to be prepared to continue in demanding college preparation and Advanced Placement courses that will enable ELLs to enter and succeed in higher education, and in our increasingly sophisticated economy. The challenge for the future will be whether American education will be allowed to assess and to adapt to achieve the latter long-range goal for ELLs.
Scott Ellis Ferrin
See also Bilingual Education; Lau v. Nichols
- Ellis, R. (1994). The study of second language acquisition. Oxford, UK: Oxford University Press.
- Gass, S., & Selinker, L. (2001) Second language acquisition: An introductory course. Mahwah, NJ: Lawrence Erlbaum.
- Krashen, S., & McField, G. (2005). What works? Reviewing the latest evidence on bilingual education. Language Learner, 1(2), 7–10, 34.
- Rossell, C. H., & Baker, K. (1996). The educational effectiveness of bilingual education. Research in the Teaching of English, 30, 7–74.
- Skutnabb-Kangas, T., & Toukomaa, P. (1976). Teaching migrant children’s mother tongue and learning the language of the host country in the context of the sociocultural situation of the migrant family. Tamprere, Finland: UNESCO.
- Tollefson, J. W. (2002). Language policies in education: Critical issues. Mahwah, NJ: Lawrence Erlbaum.
- Equal Educational Opportunity Act of 1974, 20 U.S.C. § 1703(f).
- 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).