Legal Requirements
Legal Requirements
During the past fifty years state and federal governments have enacted laws and regulations to protect the rights of language minority students. The following is a list of laws and regulations which have been instrumental in establishing federal, state, and district policies related to the education of ELLs.
Free and Equitable Education for All Students
Every public school in the United States is required to provide a free and equitable education to all eligible children who live within the boundaries of the school district. In the past there was some question as to whether or not school districts were required to educate children who were not legal residents of the United States. However, in 1982 the Supreme Court ruled in Plyler v. Doe that the Fourteenth Amendment to the United States Constitution prohibits states from denying a free public education to undocumented immigrant children regardless of their immigration status.
Furthermore, the Court stated that school systems are not agents for enforcing immigration law; thus schools should not request any information related to U.S.residency as this might discourage children from attending school. In keeping with this ruling, schools are advised not to request any information of students (immigrant or non-immigrant) which might be used to disclose undocumented status including Social Security numbers, passports, visas, etc. As a result of this ruling schools districts are only permitted to require two kinds of information for enrollment: proof of residency in the district (i.e. two bills with an address that is in the district) and proof of required vaccinations. As long as students can provide this information they must be allowed to enroll in school.
Should the school, for whatever reason, come across information regarding the immigration status of immigrant students or their parents, it is prohibited under the Family Educational Rights and Privacy Act (FERPA) from providing any outside agency, including the Immigration and Naturalization Services (INS) with such personally identifiable information without first getting permission from the student’s parents or a valid court order.
School administrators should make it clear to all school personnel that their primary responsibility is to provide all students living in the district with a quality education. As educators they should not be involved in any policing activities for the INS, nor are they under any legal obligation to do so.
1964 – Civil Rights Act, Title VI
The 1964 Civil Rights Act stated that: “No person in the United States shall, on the grounds of race, color, or national origin…be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” As a result of this and subsequent related acts, the Office for Civil Rights (OCR) requires school districts to:
1. take affirmative action to rectify any language deficiency,
2. avoid improper assignment of ELLs to remedial classes or denial of opportunities to participate in college preparatory classes,
3. avoid special tracking that operates as an educational “dead-end,”
4. notify parents of ELLs of the same information that all other parents receive, if necessary in a language other than English.
1970 – May 25 Memorandum
The 1970 Department of HEW, May 25 Memorandum, Federal Regulation 11595 stated that: “The district must take affirmative steps to rectify the language deficiency of LEP Students.” This document reiterated the responsibility school districts have in terms of the education of LEP students.
1974 – Lau v. Nichols
In this unanimous decision, the Supreme Court decided that equality of educational opportunity is not achieved merely by providing all students with “the same facilities, textbooks, teachers, and curriculum… Students who do not understand English are effectively foreclosed from any meaningful education.”
In addition, the Supreme Court stated that: “Imposition of a requirement that, before a child can effectively participate in the educational program, he must have already acquired those basic skills is to make a mockery of public education.”
As a result, schools must make necessary accommodations and modifications to their curriculum to make it both accessible and meaningful for all students. In some cases this might necessitate the use of textbooks in the student’s native language, the employment of bilingual tutors, or modifications due to the student’s lack of educational background.
1974 – Equal Educational Opportunities Act (EEOA)
The EEOA stated that: “No state shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by … failure of an educational agency to take appropriate action to overcome language barriers that impede equal participation by students in its instructional programs.”
While this act did not specify the rights of ELLs, the impact of this act on educational programs for ELLs has been derived from judicial interpretation which has focused on the phrase “appropriate action.” The standards for complying with this legislation have evolved from federal court cases including: Castenada v. Pickard, 1981; Keyes v. SchoolDistrict No. 1, 1983; and Gomez v. Illinois State Board of Education, 1987.
According to the rulings in these cases, appropriate action includes:
1. programs must be based on sound educational theory,
2. programs must allocate trained personnel and material resources necessary to implement the program,
3. programs must provide for evaluation of effectiveness and must implement appropriate changes when needed.
Summary of the Office for Civil Rights’ Policy on ELLsThe Office for Civil Rights (OCR) is responsible for enforcing Title VI of the Civil RightsAct of 1964, which prohibits discrimination based on race, color or national origin. In Lau v. Nichols, the Supreme Court affirmed the Department of Education’s May 25, 1970, Memorandum that directed school districts to take steps to help ELLs overcome language barriers and to ensure that they can participate meaningfully in the district’s educational programs.