In addition to students attending magnet schools and receiving permits, LAUSD has a large population of students who are involved in a variety of bilingual education programs. These programs are operated by the District. A prospective LAUSD break-up or break-off will inevitably impact the District's large percentage of students who are only beginning to learn English. Recent figures indicate that these English Language Learners constitute (46%) of the District as a whole, and over (50%) of all incoming students. As with magnet schools and PTP, bilingual education will be affected by a reorganization of the District. Therefore, the context of bilingual education in the District must be understood and questions and concerns relating to bilingual education and any new configuration of the District must be raised.
Currently, LAUSD remains committed to bilingual education. It must be recognized, however, that in 1997 this commitment is actually based on District policy, not on relevant federal or state law.
Federal Law
Lau v. Nichols
In Lau v. Nichols, 414 U.S. 563 (1974), parents of Chinese-speaking students argued that the San Francisco Unified School District's failure to provide equal educational opportunities for children who did not speak English amounted to a violation of the Fourteenth Amendment. There were in fact two groups of children who brought this action: (1) 1,790 Chinese-American school children who spoke no English and were taught none, and (2) 1,066 Chinese-American school children who spoke no English but received some remedial instruction in English. According to Ninth Circuit Judge (Shirley) Hufstedler, plaintiffs did not seek to have their classes taught in both English and Chinese. "All they ask is that they receive instruction in the English language."
Judge Hufstedler went on to paraphrase the plaintiffs' argument as follows: "Access to education offered by the public schools is completely foreclosed to these children who cannot comprehend any of it. They are functionally deaf and mute...These Chinese children are not separated from their English speaking classmates by state-erected walls of brick and mortar (Cf. Brown v. Board of Education (1954) 347 U.S. 483), but the language barrier, which the state helps to maintain, insulates the children from their classmates as effectively as any physical bulwarks. Indeed, these children are more isolated from equal educational opportunity than were those physically segregated African Americans in Brown; because these children cannot communicate at all with their classmates or their teachers. 483 F.2d 791, 805-806 (9th Cir. 1973) (, J., dissenting).
In the end, the Supreme Court ruled in favor of the parents, but relying solely on Title VI of the Civil Rights Act of 1964.61 Writing for the Court, Justice William O. Douglas explained that no specific remedy would be granted because none had been requested.62 He did identify some possible "choices" in this regard: "Teaching English to the students,...[G]iving instructions in Chinese,...[T]here may be others."63 In the end, however, Douglas made it clear that any remedy designed by local district officials would have to be consistent with the Office of Civil Rights' (OCR) interpretation of Title VI, and particularly with the following:
Key words and phrases in this passage have triggered an ongoing debate and remain subject to varying interpretations. Educators and policy makers have focused particularly on the relative nature of the following terms: "effective participation," "affirmative steps," "rectify the language deficiency," and "open its instructional program."65
By providing school districts with little more than these general guiding principles, Lau left unresolved from a legal perspective a volatile dispute regarding the proper approach to educating language minority students and English language learners. In the aftermath of Lau, the Office of Civil Rights set forth additional guidelines to enforce the decision under Title VI.66 The Lau Guidelines, as they would come to be known, outlined procedures to be followed by school districts that enrolled 20 or more LEP students.67 Topics included the determination of a student's primary language, the classification of students, and the establishment of programs for each classification. After much controversy, it became apparent that the Lau Guidelines did not have the force of law.68
The Equal Educational Opportunity Act
In late 1974, Congress passed the Equal Educational Opportunity Act (EEOA) and included a key provision that appears to have explicitly adopted the Lau decision's approach.69 Section 204 of the Act provides:
The broad, general mandate of the EEOA has generated an ongoing controversy concerning what groups are reached, what kinds of programs are called for, and whether "equal participation" is synonymous with "effective participation." While the Lau guidelines attempted to address many of these issues, it was the 1981 case of Castaneda v. Pickard71 that ultimately determined the Act's current applicability and scope.
In Castaneda, a group of Mexican American children and their parents challenged the practices of a Texas school district that allegedly resulted in a deprivation of equal educational opportunity. Among plaintiffs' allegations was the charge that the district failed "to implement adequate bilingual education to overcome the linguistic barriers that impede the plaintiffs' equal participation in the educational program of the district."72 In addition to the bilingual education component of the lawsuit, plaintiffs also charged that the district "unlawfully discriminated against them by using an ability grouping system for classroom assignments...based on racially and ethnically discriminatory criteria and resulted in impermissible classroom segregation."
Judge Randall began by considering the meaning of appropriate action in the EEOA, and concluded that the phrase was not intended to be synonymous with "bilingual education." "Congress did not specify that a state must provide a program of bilingual education," Randall declared. "We think Congress' use of the less specific term, 'appropriate action,' rather than 'bilingual education,' indicates that Congress intended to leave state and local educational authorities a substantial amount of latitude in choosing the programs and techniques they would use to meet their obligations under the EEOA."73
By relying on the EEOA to decide the bilingual education issue in favor of the plaintiffs, the Fifth Circuit Court of Appeals set forth a three part test that federal courts continue to follow today when evaluating a school district's language remediation program. First, a court must determine whether the district is pursuing a program "informed by an educational theory recognized as sound by some experts in the field or, at least, deemed a legitimate experimental strategy." Second, the court must establish whether "the programs and practices actually used...are reasonably calculated to implement effectively the educational theory adopted by the school." Finally, the court must determine whether the school's program, even if premised on sound educational theory and effectively implemented, "produces results indicating that the language barriers confronting students are actually being overcome."74
Today, most language remediation litigation continues to be decided under the EEOA and the Castaneda three part test.75
California State Law
The Chacon-Moscone Act and the Sunset Statutes
Two years after Lau v. Nichols was decided and the Equal Educational Opportunity Act was passed by Congress, the California Legislature passed the Chacon-Moscone Bilingual-Bicultural Education Act of 1976. This aggressive, far-reaching Act mandated bilingual education in California and established the state as a leader in this controversial area.
The Chacon-Moscone Act declared that a lack of English language communication skills presented "an obstacle" to the equal educational opportunity rights of LEP and NEP students which could be "removed by instruction and training in the pupils' primary languages while...[these students were]...learning English."76 The legislative declarations also found "that the dropout rate is excessive among limited English speaking pupils," and that "this represents a tremendous loss in human resources."
In its central provision, the Chacon Moscone Act required that "[e]ach limited English speaking pupil enrolled in the California public school system in kindergarten through grade 12...receive instruction in a language understandable to the pupil which recognizes the pupil's primary language and teaches the pupil English."77 In grades K 6, school districts with at least 10 NEP students or 15 LEP students speaking the same primary language in the same grade level had to "offer" these students "full bilingual instruction" and "bilingual bicultural education."78 At the junior high and high school levels, districts were required to individually evaluate all LEP students not receiving at least "partial bilingual education" and provide educational services "in a manner consistent with...Lau v. Nichols,...the [EEOA]...and... [applicable]...federal regulations..."79
(a) "Partial bilingual instruction" means listening, speaking, reading and writing skills developed in both languages. Material related to culture and history is taught in the language the pupil understands better.
(b) "Full bilingual instruction" means basic language skills developed and maintained in both languages. Instruction in required subject matter or classes is provided in both languages in addition to culture and history.
(c) "Bilingual-bicultural education" is a system of instruction which uses two languages, one of which is English, as a means of instruction. It is a means of instruction which builds upon and expands the existing language skills of each participating pupil, which will enable the pupil to achieve competency in both languages.
In 1987, legislation was enacted to continue the Chacon-Moscone Act,80 but the legislation was soon vetoed by then Governor George Deukmejian, who declared that local school districts should be free to "fashion" their own programs."81 Pursuant to Education Code sections 62000 62002.5, the mandatory bilingual education program ceased to be operative and the "Sunset Statutes" became applicable.
The Sunset Statutes of the California Education Code provide continuing funds for specific programs that may cease to be mandatory. If a program is not "renewed," school districts may still choose to continue offering the specialized services to their students, and money will remain available from the state for the purpose of providing these services.82 The statutes designate the State Department of Education as the government body in charge of disbursing these funds.83
Thus, in 1987, the State Department of Education was faced with an important decision: what sort of "bilingual education" programs should be required for school districts to remain in compliance? Education Code section 62002 provides, in pertinent part:
The key question facing then Superintendent of Public Instruction Bill Honig was how to interpret the "general purposes" language of section 62002. Under a broad interpretation, phrases such as "general purpose" would be deemed to include all the basic bilingual education requirements of the former Chacon-Moscone Act. Under a narrow view, however, "general purpose" would simply refer to the providing some sort of language remediation, not necessarily including any instruction in bilingual education. And under a literal reading of section 62000, former section 52161 of the Chacon-Moscone Act would be read to discern what general purposes were present in the Act.
Determining that a literal interpretation of section 62000 was correct, Honig ended up taking a position which favored bilingual education.84 In a program advisory distributed to all the school districts in the state, Honig explained that California school districts were no longer required to comply with the specifics of the Chacon Moscone Act, but they had to continue providing services that were consistent with the eight general purposes of the old bilingual bicultural requirements.85
AB 2310
By the mid-1990's, criticism of bilingual education programs had become widespread. A prominent statewide report released in 1993 by the Little Hoover Commission, for example, found that bilingual education programs have been as much a problem as a solution" for the education of children who come to school speaking little or no English."86 A school boycott organized by Latino parents who wanted their sons and daughters removed from LAUSD bilingual education classes received nationwide media attention in early 1996.87 And a recent editorial in the N.Y. Times was highly critical of the late exit transitional approach, labeling it "a system that dragoons children into bilingual programs[,]...reinforce[s] the students' dependency on their native language and...makes escape impossible."88
The Little Hoover Commission report reached the following findings:
2. The State Department of Education's emphasis on native-language instruction is inappropriate, unwarranted, not feasible, and counterproductive.
3. There is a severe shortage of teachers with the expertise in language acquisition, the training in cultural diversity and the skills to enhance the classroom learning environment that are vital for meeting student needs in today's schools.89
In response to these findings, the commission recommended -- among other things -- changes in the funding structure to provide incentives for schools to help students learn English rapidly,90 the establishment of a state framework for local control of educational methods for non English fluent students, and a focus on improving teaching techniques generally rather than on creating a cadre of bilingual teachers.91
Based largely on the recommendations and findings of the Little Hoover Commission Report, the Alpert Firestone Bilingual Education Reform Act of 1996 (AB 2310) was introduced in the California State Assembly by Assembly Members Brooks Firestone and Dede Alpert. The Act would have formally repealed the Chacon-Moscone Act of 1976 and would have removed any link between the Sunset Statutes and bilingual education. In addition, the Act would have arguably provided an entirely new framework for addressing language remediation in the California public schools.92
Proposed Education Code Section 52160.1 contained findings and declarations that would have set the tone for this new Act. If the bill had become law, the primary goal of all language remediation programs under the Act would have been, "as effectively and efficiently as possible, to develop fluency in English in each child, as well as his or her academic skills in the core curriculum."93
However, after many amendments aimed at crafting a compromise between bilingual education advocates and critics, the bill died in the Senate Appropriations Committee in September 1996.94 While it became the sixth such reform bill in nine years to fail, Senators Alpert and Firestone have not given up, saying they want to tackle the issue again next year. And there are good reasons for their optimism: 61 members of the Assembly -- well over a two-thirds majority -- had voted for the final version of the bill, which also had support from the California Teachers Association, the California School Boards Association, and most statewide education groups.95
While the California Association for Bilingual Education (CABE) and the Mexican-American Legal Defense and Educational Fund (MALDEF) opposed AB 2310, division is growing among the Latino community over whether Second Language Learners should be taught in English or in Spanish. A large number of Latino parents continue to be dissatisfied with bilingual instruction, and the Washington-based Center for Equal Opportunity found in a recent nationwide poll this month that "70% of Latino parents said teaching children to read and write in English should be the schools' top priority."96
Thus the language of AB 2310 cannot be discarded, since it may soon form the basis of a new statewide statutory scheme for language remediation programs. And, under AB 2310, such programs "may include, but not be limited to, bilingual late exit instruction in the primary language of the English learner, bilingual early exit instruction in the primary language of the English learner, double immersion, and specially designed academic instruction in English.97 Indeed, the Alpert-Firestone Act explicitly moved away from the Chacon-Moscone Act's mandate that -- to the extent possible -- instruction for Second Language Learners take place initially in the student's primary language. Districts would have had much greater freedom under California law than they currently have to fashion language remediation programs of their own choosing. And funding for these programs would have apparently been available even if no bilingual education at all was taking place.98
The Hayden Bill (SB 699)
The prospective impact of three specific Hayden Bill provisions on LAUSD bilingual education programs in the event of a break-up or break-off is unclear.
Under Education Code Section 35730.1 (e), "policies used by magnet schools, charter schools, site-based management initiatives, and the LEARN program" must be preserved. Thus it can be argued that if bilingual education existed in magnet schools and charter schools as a matter of policy before a break-up or break-off, they must continue to exist afterward. It might even be argued that this would also be true for all LEARN schools based on the language of the statutes. On the other hand, it can also be argued that the purpose of the statute did not extend to the preservation of bilingual education programs. If it did, then arguably the legislature would have said so explicitly.
Education Code Section 35730.1 (h) states that "[t]he formation of the new school districts" shall "not result in the diminution of minority protections." The Mexican-American Legal Defense and Educational Fund (MALDEF) has argued in a recent document that this statute should be interpreted as imposing "additional requirements on new school districts" in the event of a break-up or break-off. "Simply put," the document states, "the new districts must provide LEP students with at least the same quality of educational service they currently receive from LAUSD -- even if the quality, type or scope of the service currently available goes beyond state and federal minimum mandates."99
Finally, under Education Code Section 35730.1(I), "the conditions of all collective bargaining agreements" must be maintained "until their expirations." The LAUSD-UTLA Collective Bargaining Agreement includes a section addressing "Participation in the District's Bilingual Master Plan Program, and includes a discussion of teacher qualifications and salary differentials in this regard. It does not appear, however, that the document addresses any programmatic or curricular issues pertaining to bilingual education.100
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