Summing up the Lau Decision:
Justice Is Never Simple 

By James Crawford 

With Lau v. Nichols the U.S. Supreme Court guaranteed children an opportunity to a "meaningful education" regardless of their language background. No longer would limited-English-proficient (LEP) students be left to sink or swim, offered no help in understanding their lessons, and shunted onto dead-end tracks for slow learners. Henceforth the schools would have to assume responsibility for overcoming language barriers. The Lau decision did not prescribe a pedagogical means to this end; "affirmative steps" might involve bilingual instruction, English as a second language (ESL) classes, or perhaps some other approach. But the mandate was clear: language-minority students must be ensured access to the same curriculum provided to their English-speaking peers. 

"Simple justice" dictated this ruling, the court said.<1> To require anything less to continue blaming the children for their "language deficiency," as the San Francisco school board had done would "make a mockery of public education." 

Two decades after Lau, the court's promise remains to be fulfilled. A child entering school without English today is still unlikely to receive a first-class education. While sink-or-swim is no longer officially tolerated, more subtle forms of neglect persist. Most LEP students are now being "served," in the evasive argot of bureaucrats, but the quality of those "services" is another matter. 

Naturally, much has changed since 1974. Research has advanced, practitioners have been trained, pedagogies have improved, supervision has increased. Yet well-designed programs staffed by qualified teachers are available to only a fortunate fraction of LEP students. For the majority, underachievement remains the norm. Insufficient resources and staff, inadequate materials and assessment tools, indifferent administrators, inconsistent support by policymakers, and ideological attacks on bilingual education are among the factors impeding efforts to close the equity gap. 

What has become of the nation's commitment to LEP children, so boldly stated in Lau? Has it been sacrificed to changing political fashions? Or was it flawed from the outset? Why are inequities allowed to persist? Who is, or should be, accountable? What remedies are in order? And how can they be achieved in a time of growing xenophobia? These were among the questions explored by the symposium "Revisiting the Lau Decision: 20 Years After," held in San Francisco, November 3-4, 1994. 

No event affecting the schooling of language-minority children has occurred in a social vacuum. The Lau ruling itself followed years of protests, organizing, and litigation by language-minority communities seeking a better deal for their children. Feeling that pressure, in 1970 federal officials directed school districts to respond to LEP students' needs, issuing a memorandum that laid the groundwork for the Supreme Court's reasoning four years later. In the aftermath of Lau, a coalition of Asian, Latino, black, and white parents worked to ensure that San Francisco schools settled for more than minimal compliance. The result was a state-of-the-art bilingual education plan that stressed the maintenance of students' Chinese or Spanish skills after they learned English. 

On a broader scale, the decision prompted numerous states to enact laws authorizing and, in some cases, requiring bilingual instruction. Congress passed the Equal Educational Opportunity Act of 1974, which incorporated the Lau mandate. This led in turn to further precedents, such as Castañeda v. Pickard (5th Cir. 1981), which established a legal standard for "appropriate action" by schools: programs for LEP students must be sound in theory, provided with sufficient resources in practice, and monitored for effectiveness, with improvements made when necessary. 

Perhaps most significant, in 1975 the U.S. Department of Health, Education, and Welfare issued the Lau Remedies, a set of guidelines that translated schools' legal obligations into pedagogical directives. Resolving to prevent local districts from choosing the cheapest "band-aid" treatments, such as remedial English classes, federal officials required the use of bilingual instruction in elementary schools where enough LEP students spoke the same language to make it practical. The Office for Civil Rights (OCR) began an aggressive campaign to enforce the Lau Remedies, wielding the threat (never exercised) of withholding federal funds to resistant school districts. The outcome, over the next five years, was the adoption of bilingual programs by nearly 500 districts that had previously neglected children's language needs. Without this intervention by OCR, bilingual education might well have remained, in much of the country, a marginal and experimental pedagogy. At the same time, as the role of lawyers and educators grew, that of parents and community activists declined.

Federal policy shifted abruptly in the 1980s. First, the Reagan administration withdrew a proposal to formalize the Lau Remedies, which had been unpopular with local school boards. OCR's detailed and prescriptive policy on appropriate instruction for LEP children gave way to a "case by case" approach that is, to no clear approach at all and the agency virtually curtailed its Lau enforcement.<2>

Second, the federal government cut funding for Title VII, Bilingual Education Act grants to support instructional programs, training, and research. During a decade of rising immigration, in which the LEP school population increased by 40 percent nationwide, the Title VII budget declined by 40 percent in inflation-adjusted dollars. Third, the U.S. Department of Education became a headquarters for mobilizing opposition to native-language instruction. In 1985, Secretary William Bennett denounced federal support for bilingual education as a "failed path" that has distracted children from learning English. 

Research shows that such worries are misplaced, that if anything Title VII has put too much emphasis on a quick transition to English and too little on maintaining children's native tongue. Over the past 20 years, a great deal has been learned about second-language acquisition, for example, that it need not come at the expense of developing first language skills, and vice versa. Indeed, "additive bilingualism" has been proven beneficial to all-round academic achievement; "subtractive bilingualism," harmful.<3>

Such findings have guided the design of exemplary approaches, including "developmental" and "two-way" models, which enable English-speaking as well as non-English- speaking students to become bilingual. Sadly, there are but a handful of such programs in the United States; most bilingual education remains strictly transitional. Thus schools are allowing indeed, tacitly encouraging students to lose minority language skills that are potentially valuable to them and to the nation. Especially tragic is the rapid loss of indigenous Native American languages, most of which will soon be extinct unless action is taken.<4>

Researchers have been less successful in dispelling popular misconceptions; in particular, that children would learn English rapidly if only the "crutch" of bilingual instruction were removed. Several studies have shown the opposite: the second-language skills needed for cognitive and academic pursuits typically take five to seven years to acquire.<5>

While educators cannot speed up this process, for example, by making English instruction more intensive, they can slow it down with misguided approaches that deny children the native-language development they require. Numerous studies have shown there is no urgency to mainstream children from bilingual programs, because the academic knowledge and skills they learn in the first language will easily "transfer" to the second. Nevertheless, misunderstanding remains widespread among the public and the press. Often it is fostered by those with political motivations for opposing bilingual education, such as the proponents of "English only" legislation. 

Public concerns about bilingualism, sometimes mixed with anti-immigrant bias, have had a chilling effect on language-minority programs. Following the passage of a 1986 initiative designating English as California's sole official language, the state's bilingual education law expired. In the political climate that ensued, reauthorizing it has proved impossible and confusion lingers about districts' obligations. Since that time the number of LEP students has more than doubled in California schools, to 1,262,982, or 24 percent of total enrollment. Meanwhile, the estimated shortage of bilingual and ESL teachers has grown to 20,692 and 12,021, respectively. The staffing problem is especially acute in Asian languages; for example, California now has seven Hmong-certified teachers to instruct 30,345 Hmong-speaking students whose English is limited. Yet the legislature has provided meager funding for preservice and inservice training. And the state's institutions of higher education have done little, until recently, to adjust teacher preparation to changing demography. As a result, many new teachers are still unprepared for their first assignments, which tend to be in schools where bilingual or ESL credentials are needed. 

What has been the impact in the classroom? In 1994-95, less than 30 percent of California's LEP students were enrolled in truly bilingual programs, featuring English language development combined with native-language instruction in academic subjects; of these, only about half were being taught by certified teachers. Approximately 20 percent received "sheltered English" instruction, along with support from bilingual aides; 27 percent were taught only in English; and 23 percent nearly 300,000 students got no special help whatsoever. 

In fairness to California, it should be noted that the neglect of LEP students is probably less pervasive there than in many other states. It is simply easier to document; each year the California Department of Education gathers the nation's most detailed statistics on students' language abilities, a measure of its historic commitment to bilingual education.

Who, then, is to blame for Lau's unkept promises? School districts have varied in their response to language diversity. Some that once resisted OCR mandates now go to great lengths to develop innovative programs, secure adequate funding, and recruit qualified staff; others do none of these things. Similar variations in commitment can be found among state education agencies, although there has been a discouraging trend (e.g., in California and New York) toward dismantling divisions that once specialized in LEP issues. Finally, the U.S. Department of Education, rather than taking the lead in promoting exemplary pedagogies, has largely confined itself to disbursing grant money, and even that role appears to be shrinking. For fiscal 1996, House and Senate appropriators have voted deep cuts in Title VII spending, eliminating most funding for professional training, research, and support services. 

It is clear that today's patchwork of federal, state, and local policies is failing to protect the rights of language-minority students. Moreover, in a time of immigrant-bashing, those rights seem to have a low priority for many Americans. Proposition 187, passed by California voters in November 1994, would (among other things) deny schooling to the children of undocumented immigrants and require teachers to report their families for deportation.<6>

Responding to the public mood, Congress is seriously considering bills to make legal immigrants ineligible for most federal entitlements, impose English-only rules throughout government, and terminate support for bilingual education. For language-minority advocates, the question is no longer what education reforms should be adopted, but what reforms could be adopted under current political constraints and how can earlier gains be protected? 

Few would argue, in any case, for a return to the prescriptiveness of the Lau Remedies. A "one size fits all" approach would make little sense at a time of growing diversity among language-minority children, parent preferences, and community needs. Fewer still would claim that bilingual education is a panacea; language is just one variable among many that determine the success of an instructional program, and language can be integrated in various ways. Experimentation should be encouraged, not penalized. 

Nevertheless, recent experience shows that catchwords like "local flexibility" can mask policies of neglect, reluctance to provide resources, or ideological agendas that poorly serve the interests of LEP children. Now that research has isolated the elements of effective programs, these criteria should be embodied in clear standards that educators can implement. 

The current movement for "systemic reform," involving school governance at all levels, offers an opportunity to develop such standards and to use them to advance the cause of educational equity. Thus far, however, this movement has been slow to address the situation of LEP students (or, indeed, of any group of students whose needs differ from the norm). While stressing "content" and "performance" standards, it has paid limited attention to what are euphemistically called "opportunity to learn" standards that is, to ways of coping with the denial of adequate finances, facilities, textbooks, equipment, personnel, and programs to schools serving racial and cultural minorities, notwithstanding a generation of civil-rights laws and court decisions like Lau v. Nichols.

Truly systemic reform would start by tackling this systemic injustice. Instead, the federal Goals 2000 legislation stresses the worthwhile but problematic approach of raising academic expectations and holding schools accountable for meeting them. Since valid and reliable assessment tools are currently lacking in languages other than English, this creates a Hobson's choice: either exclude LEP children from accountability mechanisms or penalize them through biased testing. For the new standards and goals to be fair as well as challenging to these students, knowledgeable professionals must be involved in setting them, especially in the crucial area of assessments. But not only professionals. 

Language-minority parents must be brought back into the struggle, and that means bringing them back into the schools. Bilingual education cannot prosper, or even hold its own against attacks, as long as it remains disconnected from the communities it is designed to serve. As educational decision-making becomes less centralized, no doubt it will also become more politicized. Without the involvement and empowerment of those most affected, school reform is likely to do little good for LEP students, and it could do them tangible harm. 

It is worth remembering that the Lau decision grew out of a social protest movement. Finally making good on its promise may require another. 

1. Justice Douglas, author of the unanimous Supreme Court opinion in Lau, was quoting Senator Hubert Humphrey during floor debate on Title VI of the 1964 Civil Rights Act: "Simple justice requires that all public funds, to which all tax payers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination."

2. Between 1981 and 1986, school districts were nine times less likely to be the subject of Lau compliance reviews or monitoring visits than between 1975 and 1980, according to an Education Week analysis of OCR statistics. The declining trend continued until the early 1990s. Beginning in 1993, the Clinton administration substantially increased Lau enforcement, but has retained the "case-by-case" policy on appropriate instruction.

3. E.g., the 1991 Ramírez report, the largest federally funded study of its kind in the past decade, found that LEP children's achievement in English reading, language, and mathematics rose steadily in "late-exit" developmental bilingual programs (in which native-language instruction continued through the 6th grade) and promised to overtake the scores of English-proficient children. By contrast, in "early-exit" transitional bilingual programs and English-only "immersion" programs, growth curves leveled off and remained far below national norms.

4. Michael Krauss of the Alaska Native Language Center projects that, if current trends continue, all but 20 of the 175 Native American languages now spoken will be extinct within the next three generations (i.e., by about 2050). As many as 45 could disappear by the end of this decade. 

5. Virginia Collier's "age on arrival" research among new immigrants found that children who started in an ESL-only program at ages 8-11 (i.e., after having learned to read in their home countries) soon outperformed children who had enrolled in the same program at ages 5-7. 

6. This and several other provisions of Proposition 187 have not yet taken effect. Initially stayed by a federal district court, they were ruled unconstitutional in October 1995. An appeal is expected.

This paper first appeared in Revisiting the Lau Decision 20 Years After: Proceedings of a National Commemorative Symposium Held on November 3-4, 1994, in San Francisco, California (Oakland, Calif.: ARC Associates, 1996). 

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