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
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
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"
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,
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
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
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
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).
Copyright © 1996 by James Crawford. All rights reserved. Except where otherwise marked, material from this web site may not be republished in any form and for any purpose – including course use, electronic reserves, and Internet postings – except by permission of the author at this email address or via PayPal links on this site. SPECIAL NOTE TO STUDENTS: No permission is required to quote from or paraphrase articles from this site in term papers, dissertations, or other course work not intended for publication. Of course, appropriate bibliographical credit should be given to avoid plagiarism. For further information, see my permissions FAQ.