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In a major victory for language-minority parents and communities, the Supreme Court struck down the states' restrictive legislation, ruling, in essence, that whereas state governments can legislate the language used for instruction in schools, states may not pass laws that attempt to prevent communities from offering private language classes outside of the regular school system.

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Meyer v.  Nebraska (1923) | An Introduction to Constitutional Law

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1931 - The Mexican American struggle to end segregation

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1931 - The Mexican American struggle to end segregation

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Article: Looking to end segregation 23 years before Brown vs Board of Ed.

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1954 - Brown vs Topeka, Kansas Board of Education 

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1954 - Brown vs Topeka, Kansas Board of Education 

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Landmark case calling for an end to segregation in U.S. Schools.

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Brown v. Board of Education | BRI's Homework Help Series

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1972 - Mills vs Board of Education for the District of Columbia 

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1972 - Mills vs Board of Education for the District of Columbia 

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The Mills class action lawsuit was brought on behalf of seven school-age children who had been denied placement in a public educational program because of alleged disabilities.

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United States District Court, District of Columbia.

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MEMORANDUM OPINION, JUDGMENT AND DECREE WADDY, District Judge. This is a civil action brought on behalf of seven children of school age by their next friends in which they seek a declaration of rights and to enjoin the defendants from excluding them from the District of Columbia Public Schools and/or denying them publicly supported education and to compel the defendants to provide them with immediate and adequate education and educational facilities in the public schools or alternative placement at public expense.

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In Lau v. Nichols, the U.S. Supreme Court affirmed the Department of Education's May 25, 1970, Memorandum, that directed school districts to take steps to help ELL students overcome language barriers and to ensure that they can participate meaningfully in the districts' educational programs.

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Resource Materials for Planning and Self-Assessments

Legal Background

School districts in many parts of the country are experiencing a substantial increase in the enrollment of national-origin-minority students who cannot speak, read, or write English well enough to participate meaningfully in educational programs without appropriate support services. In the absence of specific steps to address the language-related limitations experienced by such students, these students are at risk of losing the educational opportunities provided to students generally.

The Office for Civil Rights (OCR) is responsible for enforcing Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin. In Lau v. Nichols, the U.S. Supreme Court affirmed the Department of Education's May 25, 1970, Memorandum, that directed school districts to take steps to help ELL students overcome language barriers and to ensure that they can participate meaningfully in the districts' educational programs.

Department of Education policies regarding ELL children are reflected in three OCR policy documents. The May 1970 memorandum to school districts entitled "Identification of Discrimination and Denial of Services on the Basis of National Origin" clarifies OCR policy under Title VI on the responsibility of school districts to provide equal educational opportunity to language minority students. The December 3, 1985, guidance document entitled "The Office for Civil Rights' Title VI Language Minority Compliance Procedures" outlines the procedures OCR follows in applying the May 1970 memorandum and the Lau legal standard on a case-by-case basis. The September 27, 1991, memorandum entitled "Policy Update on Schools' Obligations Toward National Origin Minority Students with Limited-English Proficiency (LEP)" is a policy update to be read in conjunction with the May 1970 and December 1985 memoranda. It provides additional guidance for applying the May 1970 and December 1985 memoranda in the context of staffing, transition and/or exit criteria, and program evaluation, as well as to special education programs, gifted and talented, and other special programs.

OCR does not require or advocate a particular program of instruction for ELL students and nothing in federal law requires one form of instruction over another. Under federal law, programs to educate children with limited proficiency in English must be: (1) based on a sound educational theory; (2) adequately supported so that the program has a realistic chance of success; and (3) periodically evaluated and revised, if necessary. These three fundamental principles of federal law are discussed below.

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civil rights; english (second language);

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Developing ELL Programs: Legal Background

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Legal background regarding OCR's role in the development and implementation of a program of services for ELL students.

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Listing of landmark Supreme Court cases involving Special Education

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U.S. Supreme Court Decisions

Cases decided by the United States Supreme Court are binding on courts all across the country. As a result, when the Supreme Court interprets a statute or makes a determination in a particular case, all lower courts must use that determination when deciding cases. In some instances, however, the Supreme Court leaves room in a decision that allows individual states to make their own determination - for example, in 2005 the Supreme Court decided that the party requesting a due process hearing under the IDEA has the burden of persuasion to establish his or her claims, but the Court expressly declined to determine whether states may legislate the burden of proof. In 2008, New Jersey enacted a law placing the burden of proof and production in all requests for a due process hearing, whether filed by the parent or the school district, on the school district.

Brown v. Board of Education, 347 U. S. 483 (1954) - In this landmark civil rights decision, the U.S. Supreme Court determined that a separate education for African-American children was not an equal education, concluding that "in the field of public education the doctrine of 'separate but equal' has no place and that 'separate educational facilities are inherently unequal.'" This decision provided parents of children with disabilities and disability rights activists the constitutional foundation to press for equal educational opportunities for all children, including those with developmental and other disabilities.

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982) - This was the first special education case decided by the Supreme Court. In this case, the Court held that an IEP must be reasonably calculated for a child to receive educational benefit, but the school district is not required to provide every service necessary to maximize a child's potential.

Irving Independent Sch. Dist. v. Amber Tatro, 468 U.S. 883 (1984) - The Court held that provision of clean intermittent catheterization was a "related service" under the IDEA and not a "medical service," because the service was necessary for the student to attend school. The services requested did not fall within the medical exclusion because they need not be performed by a physician. The Court noted that "Congress sought primarily to make public education available to handicapped children and to make such access meaningful."

Burlington Sch. Committee v. Mass. Bd. of Ed., 471 U. S. 359 (1985) - The Court established, for the first time, the right of parents to be reimbursed for their expenditures for private special education. This decision (together with the Court's decision in Florence v. Carter) generally stands for the proposition that a school district may be required to reimburse parents for tuition and other expenses related to a private school placement when (1) the IEP and placement offered by the school district were inadequate or inappropriate (in other words, where the school district failed to offer FAPE) (2) the parents' private placement was appropriate for their child's needs, and (3) the balance of the equities favors reimbursement. The Court also explained that in an IDEA dispute, a court has broad authority to fashion appropriate relief considering equitable factors, which will effectuate the purposes underlying the Act, and that the IDEA provides "procedural safeguards to ensure the full participation of the parents and proper resolution of substantive disagreements."

Honig v. Doe, 484 U.S. 305 (1988) - The Court addressed the IDEA's "stay put" provision, explaining that in enacting "stay put", Congress intended "to strip schools of the unilateral authority they had traditionally employed to exclude disabled students ... from school." The Court also noted that the IEP is the "centerpiece of the [IDEA's] education delivery system" and explained that "Congress repeatedly emphasized throughout the Act the importance and indeed the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness."

Florence County School District Four v. Shannon Carter, 510 U.S. 7 (1993) - The Court discussed the standards pursuant to which a parent may obtain reimbursement for a private educational placement. Importantly, the Court determined that reimbursement does not necessarily require that the private school meet the IDEA's definition of free appropriate public education; the private school does not necessarily have to meet the state education standards.

Buckhannon v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835 (2001) - The Court ruled that in order to obtain attorney fees as a "prevailing party," the party must secure either a judgment on the merits or a court-ordered consent decree.

Schaffer v. Weast, 546 U.S. 49 (2005) - The Court held that, absent a state statute to the contrary, the party seeking relief bears the burden of proof in an administrative due process proceeding.

Arlington v. Murphy, 548 U.S. 291 (2006) - The Court held that a provision of the IDEA authorizing "reasonable attorneys' fees for prevailing parents does not authorize the recovery of fees for expert's services.

Jacob Winkelman v. Parma City School District, 550 U.S. 516 (2007) - Here, the Court determined that parents may pursue claims under the Individuals with Disabilities Education Act (IDEA) on their own behalf, as the rights conferred to parents under the Act exist independently from the rights of their child.

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Landmark Cases in Special Education Law - Special Education Lawyer

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In the United States legal system, judicial decisions play an important role in determining what a particular law means. This type of law is known as "case law" and is developed when courts are asked to resolve disputes that are occurring between two or more parties and must interpret what the law means in a given situation.

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Class action to correct the injury to many thousands of public school children who speak Spanish and little or no English and were alleged to suffer discriminatory and inadequate schooling because the instruction offered them was mainly or only in English.

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1982 -Board of Education of Hendrick Hudson Central School District v. Rowley

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1982 -Board of Education of Hendrick Hudson Central School District v. Rowley

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This was the first special education case decided by the Supreme Court. In this case, the Court held that an IEP must be reasonably calculated for a child to receive educational benefit, but the school district is not required to provide every service necessary to maximize a child’s potential.

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1983 - Lau remedies - Task Force Findings

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1983 - Lau remedies - Task Force Findings

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Lau Remedies are policy guidelines for the education of English language learners, based on the ruling in the Lau vs. Nichols suit, mandating school districts' compliance with the civil rights requirements of Title VII

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Task-Force Findings Specifying Remedies Available for Eliminating Past Educational Practices Ruled Unlawful under Lau v. Nichols
Office for Civil Rights

I. Identification of Student's Primary or Home Language

The first step to be included in a plan submitted by a district found to be in noncompliance with Title VI under Lau is the method by which the district will identify the student's primary or home language. A student's primary or home language, for the purpose of this report, is other than English if it meets at least one of the following descriptions:

A. The student's first acquired language is other than English.
B. The language most often spoken by the student is other than English.

C. The language most often spoken in the student's home is other than English, regardless of the language spoken by the student.

These assessments (A-C, above) must be made by persons who can speak and understand the necessary language(s). Then the district must assess the degree of linguistic function or ability of the student(s) so as to place the student(s) in one of the following categories by language.
A. Monolingual speaker of the language other than English (speaks the language other than English exclusively).
B. Predominantly speaks the language other than English (speaks mostly the language other than English, but speaks some English).

C. Bilingual (speaks both the language other than English and English with equal ease).

D. Predominantly speaks English (speaks mostly English, but some of the language other than English).

E. Monolingual speaker of English (speaks English exclusively).
In the event that the student is multilingual (is functional in more than two languages in addition to English), such assessment must be made in all the necessary languages.

In order to make the aforementioned assessments the district must, at a minimum, determine the language most often spoken in the student's home, regardless of the language spoken by the student, the language most often spoken by the student in the home and the language spoken by the student in the social setting (by observation).

These assessments must be made by persons who can speak and understand the necessary language(s). An example of the latter would be to determine by observation the language used by the student to communicate with peers between classes or in informal situations. These assessments must cross-validate one another (Example: student speaks Spanish at home and Spanish with classmates at lunch). Observers must estimate the frequency of use of each language spoken by the student in these situations.

In the event that the language determinations conflict (Example: student speaks Spanish at home, but English with classmates at lunch), an additional method must be employed by the district to make such a determination (for example the district may wish to employ a test of language dominance as a third criterion). In other words, two of the three criteria will cross-validate or the majority of criteria will cross-validate (yield the same language).

Due to staff limitations and priorities, we will require a plan under Lau during this initial stage of investigation when the district has 20 or more students of the same language group identified as having a primary or home language other than English. However, a district does have an obligation to serve any student whose primary or home language is other than English.

II. Diagnostic/Prescriptive Approach

The second part of a plan must describe the diagnostic/prescriptive measures to be used to identify the nature and extent of each student's educational needs and then prescribe an educational program utilizing the most effective teaching style to satisfy the diagnosed educational needs. The determination of which teaching style(s) are to be used will be based on a careful review of both the cognitive and affective domains and should include an assessment of the responsiveness of students to different types of cognitive learning styles and incentive motivational styles—e.g., competitive v. cooperative learning patterns. The diagnostic measures must include diagnoses of problems related to areas or subjects required of other students in the school program and prescriptive measures must serve to bring the linguistically/culturally different student(s) to the educational performance level that is expected by the Local Education Agency (LEA) and State of nonminority students. A program designed for students of limited English-speaking ability must not be operated in a manner so as to solely satisfy a set of objectives divorced or isolated from those educational objectives established for students in the regular school program.
III. Educational Program Selection

In the third step the district must implement the appropriate type(s) of educational program(s) listed in this Section (III, 1-5), dependent upon the degree of linguistic proficiency of the students in question. If none seem applicable check with your Lau coordinator for further action.1. In the case of the monolingual speaker of the language other than English (speaks the language other than English exclusively). A. At the Elementary and Intermediate Levels:
Any one or combination of the following programs is acceptable.

1. Transitional Bilingual Education Program (TBE).

2. Bilingual/Bicultural Program.

3. Multilingual/Multicultural Program.

In the case of a TBE, the district must provide predictive data which show that such student(s) are ready to make the transition into English and will succeed educationally in content areas and in the educational program(s) in which he/she is to be placed. This is necessary so the district will not prematurely place the linguistically/culturally different student who is not ready to participate effectively in an English language curriculum in the regular school program (conducted exclusively in English).
Because an ESL program does not consider the affective nor cognitive development of students in this category and time and maturation variables are different here than for students at the secondary level, an ESL program is not appropriate.

B. At the Secondary Level:

Option 1. Such students may receive instruction in subject matter (example: math, science) in the native language(s) and receive English as a Second Language (ESL) as a class component.

Option 2. Such students may receive required and elective subject matter (examples: math, science, industrial arts) in the native language(s) and bridge into English while combining English with the native language as appropriate (learning English as a first language, in a natural setting). Option 3. Such students may receive ESL or High Intensive Language Training (HILT) . . . in English until they are fully functional in English (can operate equally successfully in school in English) then bridge into the school program for all other students.

A district may wish to utilize a TBE, Bilingual/Bicultural or Multilingual/Multicultural program in lieu of the three options presented in this section (III.l.B.). This is permissible. However, if the necessary prerequisite skills in the native language(s) have not been taught to these students, some form of compensatory education in the native language must be provided.

In any case, students in this category (111.1.B.) must receive such instruction in a manner that is expeditiously carried out so that the student in question will be able to participate to the greatest extent possible in the regular school program as soon as possible. At no time can a program be selected in this category (III.l.B.) to place the students in situations where the method of instruction will result in a substantial delay in providing these students with the necessary English language skills needed by or required of other students at the time of graduation.

NOTE: You will generally find that students in this category are recent immigrants.
2. In the case of the predominant speaker of the language other than English (speaks mostly the language other than English, but speaks some English):

1. At the Elementary Level:

Any one or combination of the following programs is acceptable.

1. TBE

2. Bilingual/Bicultural Program

3. Multilingual/Multicultural Program

In the case of a TBE, the district must provide predictive data which show that such student(s) are ready to make the transition into English and will educationally succeed in content areas and the educational program in which he/she is to be placed.
Since an ESL program does not consider the affective nor cognitive development of the students in this category and the time and maturation variables are different here than for students at the secondary level, an ESL program is not appropriate.
B. At the Intermediate and High School Levels:
The district must provide data relative to the student's academic achievement and identify those students who have been in the school system for less than a year. If the student(s) who have been in the school system for less than a year are achieving at grade level or better, the district is not required to provide additional educational programs. If, however, the students who have been in the school system for a year or more are underachieving (not achieving at grade level) . . .the district must submit a plan to remedy the situation. This may include smaller class size, enrichment materials, etc. In either this case or the case of students who are underachieving and have been in the school system for less than a year, the remedy must include any one or combination of the following (1) an ESL, (2) a TBE, (3) a Bilingual/Bicultural Program (4) a Multilingual/Multicultural Program. such students may not be placed in situations where all instruction is conducted in the native language as may be prescribed for the monolingual speaker of a language other than English, if the necessary prerequisite skills in the native language have not been taught. In this case some form of compensatory education in the native language must be provided.

NOTE: You will generally find that students in this category are not recent immigrants.
3. In the case of the bilingual speaker (speaks both the language other than English and English with equal ease) the district must provide data relative to the student(s) academic achievement.
In this case the treatment is the same at the elementary, intermediate and secondary levels and differs only in terms of underachievers and those students achieving at grade level or better.
A. For the students in this category who are underachieving, treatment corresponds to the regular program requirements for all racially/ethnically identifiable classes or tracks composed of students who are underachieving, regardless of their language background.
B. For the students in this category who are achieving at grade level or better, the district is not required to provide additional educational programs.
4. In the case of the predominant speaker of English (speaks mostly English, but some of a language other than English) treatment for these students is the same as 111, 3 above.
5.In the case of the monolingual speaker of English (speaks English exclusively) treat the same as III, 3 above.
NOTE: ESL is a necessary component of. all the aforementioned programs. However, an ESL program may not be sufficient as theonly program operated by a district to respond to the educational needs of all the types of students described in this document.

IV. Required and Elective Courses

In the fourth step of such plan the district must show that the required and elective courses are not designed to have a discriminatory effect

A. Required courses. Required courses (example: American History) must not be designed to exclude pertinent minority developments which have contributed to or influenced such subjects.

B. Elective Courses and Co-curricular Activities. Where a district has been found out of compliance and operates racially/ethnically identifiable elective courses or co-curricular activities, the plan must address this area by either educationally justifying the racial/ethnic identifiability of these courses or activities, eliminating them, or guaranteeing that these courses or co-curricular activities will not remain racially/ethnically identifiable.

There is a prima facie case of discrimination if courses are racially/ ethnically identifiable.

Schools must develop strong incentives and encouragement for minority students to enroll in electives where minorities have not traditionally enrolled. In this regard, counselors, principals and teachers have a most important role. Title VI compliance questions are raised by any analysis of counseling practices which indicates that minorities are being advised in a manner which results in their being disproportionately channeled into certain subject areas or courses. The school district must see that all of its students are encouraged to fully participate and take advantage of all educational benefits.

Close monitoring is necessary to evaluate to what degree minorities are in essence being discouraged from taking certain electives and encouraged to take other elective courses and insist that to eliminate discrimination and to provide equal educational opportunities, districts must take affirmative duties to see that minority students are not excluded from any elective courses and over included in others.

All newly established elective courses cannot be designed to have a discriminatory effect. This means that a district cannot, for example, initiate a course in Spanish literature designed exclusively for Spanish-speaking students so that enrollment in that subject is designed to result in the exclusion of students whose native language is English but who could equally benefit from such a course and/or be designed to result in the removal of the minority students in question from a general literature course which should be designed to be relevant for all the students served by the district.

V. Instructional Personnel Requirements

Instructional personnel teaching the students in question must be linguistically/culturally familiar with the background of the students to be affected.

The student/teacher ratio for such programs should equal or be less than (fewer students per teacher) the student/teacher ratio for the district. However, we will not require corrective action by the district if the number of students in such programs are no more than five greater per teacher than the student/teacher ratio for the district.

If instructional staffing is inadequate to implement program requirements, in-service training, directly related to improving student performance is acceptable as an immediate and temporary response. Plans for providing this training must include at least the following:
1. Objectives of training (must be directly related to ultimately improving student performance)
2. Methods by which the objective(s) will be achieved

3. Method for selection of teachers to receive training

4. Names of personnel doing the training and location of training

5. Content of training

6. Evaluation design of training and performance criteria for individuals receiving the training
This temporary in-service training must continue until staff performance criteria has been met.
Another temporary alternative is utilizing para-professional persons with the necessary language(s) and cultural background(s). Specific instructional roles of such personnel must be included in the plan. Such plan must show that this personnel will aid in teaching and not be restricted to those areas unrelated to the teaching process (checking roll, issuing tardy cards, etc.)

In addition, the district must include a plan for securing the number of qualified teachers necessary to fully implement the instructional program. Development and training of para-professionals may be an important source for the development of bilingual/bicultural teachers.

VI. Racial/Ethnic Isolation and/or Identifiability of Schools and Classes

Racially/Ethnically Isolated and/or Identifiable Schools—

It is not educationally necessary nor legally permissible to create racially/ethnically identifiable schools in order to respond to student language characteristics as specified in the programs described herein.
Racially/Ethnically Isolated and/or Identifiable Classes—

The implementation of the aforementioned educational models do not justify the existence of racially/ethnically isolated or identifiable classes, per se. Since there is no conflict in this area as related to the application of the Emergency School Aid Act (ESAA) and existing Title VI regulations, standard application of those regulations is effective. VII. Notification to Parents of Students Whose Primary or Home Language Is Other Than English
School districts have the responsibility to effectively notify the parents of the students identified as having a primary or home language other than English of all school activities or notices which are called to the attention of other parents. Such notice, in order to be adequate, must be provided in English and 19 the necessary language(s) comprehensively paralleling the exact content in English. Be aware that a literal translation may not be sufficient.

The district must inform all minority and nonminority parents of all aspects of the programs designed for students of limited English-speaking ability and that these programs constitute an integral part of the total school program.
VIII. Evaluation
A "Product and Process" evaluation is to be submitted in the plan. This type of evaluation, in addition to stating the "product" (end result), must include "process evaluation" (periodic evaluation throughout the implementation stage). A description of the evaluation design is required. Time-lines (target for completion of steps) is an essential component.

For the first three years, following the implementation of a plan, the district must submit to the OCR Regional Office at the close of sixty days after school starts, a "progress report" which will show the steps which have been completed. For those steps which have not been completed, a narrative from the district is necessary to explain why the targeted completion dates were not met. Another "progress report" is also due at the close of 30 days after the last day of the school year in question.

IX. Definition of Terms:

Bilingual/Bicultural Program

A program which utilizes the student's native language (example: Navajo) and cultural factors in instructing, maintaining and further developing all the necessary skills in the student's native language and culture while introducing, maintaining, and developing all the necessary skills in the second language and culture (example: English). The end result is a student who can function, totally, in both language and cultures.
English as a Second Language (ESL)

A structured language acquisition program designed to teach English to students whose native language is not English.
High Intensive Language Training (HILT)

A total immersion program designed to teach students a new language.
Multilingual/Multicultural Program

A program operated under the same principles as a Bilingual/Bicultural Program (X, 1)except that more than one language and culture, in addition to English language and culture is treated. The end result is a student who can function, totally, in more than two languages and cultures.
Transitional Bilingual Education Program (TBE)

A program operated in the same manner as a Bilingual/Bicultural Program, except that once the student is fully functional in the second language (English), further instruction in the native language is no longer required.
Underachievement

Underachievement is defined as performance in each subject area (e.g. reading, problem solving) at one or more standard deviations below district norms as determined by some objective measures for nonethnic/racial minority students. Mental ability scores cannot be utilized for determining grade expectancy.
Instructional Personnel

Persons involved in teaching activities. Such personnel includes, but is not limited to, certified, credentialized teachers, para-professionals, teacher aides, parents, community volunteers, youth tutors, etc.

Source:

Baker, K.A. & de Kanter, A.A. (1983). Bilingual Education: A Reappraisal of Federal Policy. Lexington, MA: D.C. Heath.

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Task-Force Findings Specifying Remedies Available for Eliminating Past Educational Practices Ruled Unlawful under Lau v. Nichols Office for Civil Rights I. Identification of Student's Primary or Home Language The first step to be included in a plan submitted by a district found to be in noncompliance with Title VI under Lau is the method by which the district will identify the student's primary or home language.

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Plaintiffs alleged that handicapped Hispanic children required bilingual-bicultural special education programs and were not being promptly evaluated and placed.

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Jose P. v. Ambach, 557 F. Supp. 1230 (E.D.N.Y. 1983) case opinion from the U.S. District Court for the Eastern District of New York

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This case looks at the rights of special needs students to receive an education and to have an IEP. Take a look at this quick video lesson and try the quiz.

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1993 - U.S. Court of Appeals Oberti v. Board of Educ.,

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1993 - U.S. Court of Appeals Oberti v. Board of Educ.,

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Children with disabilities are entitled to be educated in the Least Restrictive Environment (LRE) that is appropriate to meet their needs. In this case, the Court adopted a two part test to determine whether a child has been placed in the least restrictive environment. Take a look at the explanation on the LRE from Vanderbilt University.

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2006 - IDEA & ELLs - Part B - Issue Brief

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2006 - IDEA & ELLs - Part B - Issue Brief

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The current IDEA Part B final regulations, released in 2006, continue to support appropriate service delivery to culturally and linguistically diverse (CLD) populations.

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This decision mandated schools in Texas to create programs that would help new Americans adjust to the culture and learn English. The decision relied on José Cardenas and his theory of incompatibilities, which blames the educational failure of students on the inadequacies of school programs rather than on students themselves.

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United States vs. State of Texas, Case 5281, Records, 1971

In the court case United States v. Texas, known by its docket number Civil Order 5281, resulted in the largest series of desegregation orders in legal history. In 1970, the ruling gave Chief Judge William Wayne Justice the authority to order the Texas Education Agency to assume responsibility for overseeing desegregation in Texas public schools and institutions. The case originated in the Johnson administration in the 1960s when the United States Department of Health, Education, and Welfare investigated allegations of discrimination in several small Texas school districts. Judge Justice used this case to issue a series of orders to end discrimination in public schools by means of specific orders, guidelines, and mandatory annual reviews.

The United States Court of Appeals for the Fifth Circuit confirmed Justice's ruling, but removed his authority to issue orders to districts that were or would be under the jurisdiction of other federal courts in Texas. Justice attempted to expand this order in 1982 to alleged discrimination against Mexican Americans in Gregory-Portland Independent School District. Enforcement of these orders became sporadic at best by the early 1990s.

Source:

Kemerer, Frank R. "United States v. Texas." Handbook of Texas Online.
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The United States vs. State of Texas, Case #5281 Records, 1971, is comprised of an exhibits photograph album, suits, briefs, and opinions filed in other courts that affected the case. The collection also includes exhibits of the plaintiff, defendant, and government.
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United States vs. State of Texas, Case 5281, Records, 1971, Dolph Briscoe Center for American History, The University of Texas at Austin.

Basic processing and cataloging of this collection was supported with funds from the National Historical Publications and Records Commission (NHPRC) for the Briscoe Center's "History Revealed: Bringing Collections to Light project," 2009-2011.

Subsequent processing by Colleen Hobbs, October 2020.
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United States vs. State of Texas, Case 5281, Records, 1971

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In the court case United States v. Texas, known by its docket number Civil Order 5281, resulted in the largest series of desegregation orders in legal history. In 1970, the ruling gave Chief Judge William Wayne Justice the authority to order the Texas Education Agency to assume responsibility for overseeing desegregation in Texas public schools and institutions.

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English Learners with Disabilities: Shining a Light on Dual-Identified Students

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English Learners with Disabilities: Shining a Light on Dual-Identified Students

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Without a thoughtful plan of action and adequate funding, ELLs will most likely not be identified appropriately.

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To understand the current structures impacting dual-identified students, it is critical to understand the intersecting federal education policies that apply. Even as there is huge variation in the details of implementation, federal parameters represent the starting point and minimum standard for what state and localities must do to serve dual-identified students.

Federal policy addresses the education of EL students and those with disabilities in parallel yet distinct ways. Legislation and civil rights rulings separately protect both groups, requiring that schools accurately identify students for each category and provide extra instructional supports and services.1 In both cases, federal policy calls on education leaders to determine how to serve children in ways that meet their targeted or individualized needs but do not segregate and inadvertently restrict their potential.2

Under IDEA's "Child Find" mandate, states must actively identify all children, birth to age 21, who may qualify for services.6 Child Find obligates states to search and account for all children who may need special education services, including children who are homeless, migrant, or in private education settings. Child Find systems rely on referrals from caretakers, primary care physicians, local media campaigns, public notices, and connections with other community partners.7

Within public schools, IDEA specifies that any student with a suspected disability should receive an evaluation at school to determine if he or she qualifies for special education services. Parents have the right to request an evaluation at any time (or withhold their consent for a school to administer one).8 While there is considerable variation in how evaluations are carried out, the law requires an evaluation by a multidisciplinary team, which can include observation and formal or informal assessment.9 After an evaluation, a school will typically hold an eligibility meeting with parents, the child's general classroom teacher, a special educator, school administrators, and others. At the meeting, the team reviews data from the evaluation and other sources, such as from parents, classroom teachers, student work samples, and other records. Once all the information has been reviewed, the team determines whether a student qualifies for special education services.

To qualify under IDEA, a student's school performance must be "adversely affected" by a disability in one of the 13 categories, including autism, specific learning disability, speech or language impairment, intellectual disabilities, emotional disturbance, and other health impairment (such as attention and executive functioning disorders).10

Once a student qualifies for special education services, the team develops an Individualized Education Plan (IEP), a legal document that details the specialized instruction and services a school will provide.14

Federal policy related to English learners primarily involves Titles I and III of the Elementary and Secondary Education Act.15 Congress most recently reauthorized this law in 2015 as the Every Student Succeeds Act (ESSA). Title I of ESSA provides additional funds for low-income schools and includes accountability provisions related to EL achievement and growth in English language proficiency. Title III focuses exclusively on EL services and funding.

Under Title III of ESSA, states must follow a process for identifying K-12 ELs. Similar to IDEA's process for identifying students with disabilities, Title III allows states considerable variation within this process.16 Typically, however, the process begins with a home language survey that schools send home with all incoming students (kindergarteners and other students enrolling for the first time) to identify the pool of students who speak a language other than English at home. Next, students in this pool participate in a screening assessment of their English language skills. Students who score below a state's benchmark are formally classified as ELs and are eligible for a language instructional educational program, such as English as a second language (ESL) or bilingual models.17

EL students are tested annually in their English language development. Once they meet the state's proficiency benchmark, they are reclassified as fluent English proficient, and additional language services are phased out.18 After exiting EL status, these former ELs must be monitored by the district for at least two years to ensure they are progressing comparably to their never-EL peers.

IDEA and Title III: The Intersection of Chronic Underfunding

These two pieces of federal legislation-IDEA and ESSA-provide an important backdrop for dual-identified learners, defining who these students are and shaping what services they are eligible to receive. To execute federal requirements under IDEA and ESSA's Title III, schools need adequate financial resources. Congress, however, has chronically underfunded both policies, impacting ELs with disabilities in a compounded way.

When Congress first passed IDEA in 1975, it promised to pay for 40 percent of the overall average cost of educating students with disabilities. It has never come remotely close to this amount: in the last eight years, federal funding has hovered around 16 percent, less than half of the original goal.22 This trend exists in the context of escalating special education costs, as the number of children with disabilities rises and the legal standard for special education benefits increases.23

Although federal dollars must supplement and not supplant local spending, Congress's failure to provide sufficient resources has strained state and district compliance with IDEA. The lack of sufficient federal support can lead state and local leaders to cut special or general education services, limit the hiring of necessary teachers and personnel, and even cap special education identification rates.24 States and districts looking to cut costs may find a vulnerable target in EL students and their families, and disproportionately deny their access to special education when scaling back on services.

Texas offers a case in point. According to a Houston Chronicle investigation, state officials devised a system to keep tens of thousands of children out of special education. Motivated to lower costs, leaders set an arbitrary target in 2004 that no more than 8.5 percent of students should be identified for services-despite a state and national average of around 13 percent.25 English learners seem to have been hit the hardest. While overall EL enrollment rose, EL enrollment in special education dropped by 5 percent. By 2016, just over 7 percent of ELs in Texas (compared to 9 percent of non-ELs) were identified for special education.26

The Federal Policy and Funding Landscape

Table of Contents

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The Federal Policy and Funding Landscape

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To understand the current structures impacting dual-identified students, it is critical to understand the intersecting federal education policies that apply. Even as there is huge variation in the details of implementation, federal parameters represent the starting point and minimum standard for what state and localities must do to serve dual-identified students.

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Diana vs. State Board of Education - 1968

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Diana vs. State Board of Education - 1968

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"A suit brought on behalf of Mexican American, Spanish-speaking children who had been placed in special education classes based on IQ tests in English, the U.S. Supreme Court ruled that testing for eligibility for special education services must be done in the dominant language of the student.