• by Paige Duggins-Clay, J.D. • IDRA Newsletter • April 2024 •
At IDRA, we believe that students should not have to abandon their authentic selves – including their home language – in order to succeed in school.
This year marks the 50th anniversary of the U.S. Supreme Court’s landmark decision in Lau v. Nichols, affirming the right of emergent bilingual students (English learners) to participate fully and meaningfully in the educational programs offered in public schools.
Rejecting false and harmful narratives that a student’s ability to speak languages other than English somehow leads to academic underachievement, the ruling mandated that public schools take affirmative steps toward meeting the language needs of their students.
This article highlights key insights from the historic opinion and discusses the array of student rights and remedies established by the decision.
Lau v. Nichols Case Background
More than 1,800 emergent bilingual students of Chinese descent were at the center of the Lau decision. They were enrolled in the San Francisco Unified School District and were not receiving instruction in their home language or meaningful assistance to help them become multilingual. Instead, the school district required all instruction to be delivered in English, relying on the erroneous and discriminatory assumption that schools should not have to support and adapt to the unique needs of diverse students and communities.
“There is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum, for students who do not understand English are effectively foreclosed from any meaningful education.”
– Justice William O. Douglas, Lau v. Nichols (1974)
The district’s actions violated the directives of the U.S. Department of Health, Education and Welfare (HEW) (now the Department of Education) stated in a 1970 memorandum that failure to provide language access resources and English language instruction to emergent bilingual children constituted discrimination under Title VI of the Civil Rights Act of 1964 (Pottinger, 1970).
IDRA founder Dr. José A. Cárdenas, who provided expert testimony during the case, argued that when the characteristics of students are incompatible with the characteristics of the instructional program, it is incumbent upon the school to adapt to be compatible with the students – not for the students to change their characteristics. The Supreme Court ultimately agreed (Cárdenas, 1976).
Dr. Cárdenas and IDRA’s Dr. Bambi Cárdenas also served as consultants to the Department of Justice’s Civil Rights Division in preparing a brief presented to the Supreme Court by J. Stanley Pottinger, who argued on behalf of the plaintiffs alongside Mr. Steinman during oral argument.
“In the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”
– Chief Justice Warren, Brown v. Board of Education (1954)
In assessing the legality of the district’s policy, Justice William O. Douglas (writing the majority opinion in Lau) built on the court’s previous reasoning in Brown v. Board of Education, observing that merely providing emergent bilingual students the same materials in similar but separate learning environments violated the Civil Rights Act of 1964. He famously noted that depriving emergent bilingual students of a full opportunity to learn makes “a mockery of public education” (Lau v. Nichols, 1974).
In concluding the court’s opinion finding that language access is critical to equal and nondiscriminatory educational opportunity, Justice Douglas quoted Senator Hubert Humphrey’s powerful remarks during the debate on the Civil Rights Act of 1964: “Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination” (U.S. Library of Congress, 1964).
These words continue to ring true today.
Lau Rights and Remedies
To punctuate the Lau decision seven months later, Congress passed the Equal Educational Opportunities Act. Section 1703(f) of the Act requires school districts to “take appropriate action to overcome language barriers that impede equal participation by [their] students in [their] instructional programs.”
Following the Lau decision, the Office for Civil Rights in 1975 established a Lau taskforce to develop guidelines for schools to follow in complying with the Lau ruling. Dr. José Cárdenas was appointed a member of this task force and helped develop guidelines commonly known as “Lau Remedies,” which were distributed by the department to state agencies and school districts across the country.
These remedies included:
• Identification: that schools systematically and validly ascertain which of their clients are linguistically different;
• Assessment: that schools systematically and validly ascertain the language characteristics of their clients;
• Achievement: that schools systematically ascertain the achievement characteristics of their clients; and
• Support: that schools match an instructional program to the characteristics as ascertained.
These remedies continue to serve as the foundation for emergent bilingual student rights in education today.
For the 40th anniversary of the Lau decision and the Equal Educational Opportunities Act, the U.S. Departments of Education and Justice issued comprehensive joint guidance building on the Lau remedies (published in January 2015). This guidance underscores schools’ responsibilities to:
- identify emergent bilingual students in a timely, valid and reliable manner;
- offer all emergent bilingual students an educationally sound language assistance program;
- provide qualified staff and sufficient resources for instructing emergent bilingual students;
- ensure emergent bilingual students have equitable access to school programs and activities
- avoid unnecessary segregation of emergent bilingual students from other students;
- monitor students’ progress in learning English and doing grade-level classwork;
- remedy any academic deficits emergent bilingual students incurred while in a language assistance program;
- move students out of language assistance programs when they are proficient in English and monitor those students to ensure they were not prematurely removed;
- evaluate the effectiveness of emergent bilingual programs; and
- provide parents who speak languages other than English with information about school programs, services and activities in a language they understand.
Emergent bilingual students should have the same opportunities to succeed academically their English-speaking classmates. Fifty years after the Supreme Court affirmed this right in Lau, IDRA celebrates the brave students, families and advocates who helped enshrine these rights and create these remedies in law.
Resources
Cárdenas, J.A. (1976). Legal Basis of Bilingual Education – An Excerpt. In Multicultural Education: A Generation of Advocacy (1995) by Cárdenas, J.A., IDRA.
Lau v. Nichols, 414 U.S. 563 (1974).
Office of Public Affairs, U.S. Department of Justice. (January 7, 2015). United States Departments of Justice and Education Release Joint Guidance to Ensure English Learner Students Have Equal Access to a High-Quality Education, press release.
Pottinger, J.S. (May 25, 1970). Developing Programs for English Language Learners: HEW Memorandum. U.S. Department of Health, Education and Welfare Office of the Secretary.
U.S. Library of Congress. (March 18, 1964). The Civil Rights Act of 1964: A Long Struggle for Freedom – Senators Hubert Humphrey (D-MN) and Strom Thurmond (D-SC) Debate the Civil Rights Bill, video. CBS Reports: Filibuster – Birth Struggle of a Law.
Paige Duggins-Clay, J.D., is IDRA’s chief legal analyst. Comments and questions may be directed to her via email at paige.duggins-clay@idra.org.
[© 2024, IDRA. This article originally appeared in the April edition of the IDRA Newsletter. Permission to reproduce this article is granted provided the article is reprinted in its entirety and proper credit is given to IDRA and the author.]
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