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This case ruled that ‘no state shall deny any person within its jurisdiction the equal protection of the laws.’ It led to the limitation of discriminatory practices against students based on aspects such as language, race, ethnicity, disability, and culture.

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1970 - Diana v. State Board of Education/1972 - Guadalupe Organization v. Tempe Elementary School District

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1970 - Diana v. State Board of Education/1972 - Guadalupe Organization v. Tempe Elementary School District

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In the case of Diana v. State Board of Education, Diana, a Spanish-speaking student, was diagnosed with mental retardation (MR) due to her low score on an IQ test given to her in English. When given the test again from a bilingual psychologist, Diana no longer qualiﬁed for special education. In the case of Guadalupe Organization v. Tempe Elementary School District, the plaintiff requested that it be a requirement to provide bilingual/bicultural services to non-English-speaking Mexican American and Yaqui Indian students.

Previously, in 1969, Chandler and Plakos designed a study to explore how intelligence (IQ) tests were being used with Spanish-dominant Mexican-American children. After testing these students, who had been placed in special education classes prior to the study, in both English and Spanish, they found that the decision to classify them as educable mentally retarded (EMR) was based on an invalid use of the English IQ test scores. Ultimately, they concluded that many children of Mexican descent were not appropriately placed in special education classes.

The consent decrees that resulted from both of these cases specified that a student's IQ test could not be the sole criteria or primary basis for diagnosis. This is an important aspect of history in bilingual education because it ensures that students are given a fair chance to qualify for general education classes and are not inappropriately placed in special education classes.

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On behalf of Chinese-speaking students who were not given equal access to instruction in the English language, a court case was filed against the San Francisco School District in 1970. The case was brought in regards to the concern of whether or not non-English-speaking students received equal educational opportunities when instructed in a language they could not comprehend. Due to the district's failure to provide a program that addressed the students' linguistic needs and provide them with instruction in the English language to make sure that they received an equal education, the students filed a lawsuit. The lawsuit claimed that the San Francisco School District violated both the equal protections clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964. Although rejected by the federal district court and court of appeals at first, the case was accepted by the US Supreme Court in 1974. The verdict outlawed English mainstreaming programs for students who had yet to be proficient in English. The US Supreme Court ruled that language programs are necessary to provide equal educational opportunities.

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The intent of this act was to provide every child in the US with a good education so that ‘no child is left behind’. Yet it defined a good education as a high score on standardized tests in English and mathematics. If a student did well on the tests, it was decided that they had received a good education. In order to be considered a school that provides a good education, schools needed to make adequate yearly progress (AYP).

The act called for more accountability in the form of attaching ultra-high stakes to the performance of Emergent Bilinguals (EBs) on standardized tests in English. The issue, however, was that there was less validity in the assessments that were being given. There was a struggle to find valid assessment methods that accurately gathered information on what EBs knew. This issue became controversial as educators wanted to find a balance between accountability and validity. There has also been debate on whether the act actively tested the skills that students need.

Despite the intention to close the differences in test scores and quality of schooling among subgroups within the US, high-stakes testing widened the gap for EBs.

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Signed into law in 2015 by President Barack Obama, the Every Student Succeeds Act (ESSA) brought NCLB to an end.  The Act recognized the failures of NCLB, such as its unrealistic achievement expectations and over-reliance on high-stakes standardized tests as the only measure of student achievement. Under the ESSA, states were able to be more flexible in setting goals and planning how they would intervene in low-performing schools. Students' levels of proficiency were taken into account when setting targets for achievement and interpreting their test scores. Other measurements to track and assess students' growth over time were implemented in addition to testing of content and English language proficiency.

States were still required, however, to utilize yearly English Language Proficiency (ELP) standards/assessments to track student progress and hold schools accountable for EB student achievement as well as track the progress of separate subgroups of students, including ELLs, rather than lump students together in a single super subgroup.

Despite its efforts to provide states flexibility states in how they choose to use/interpret these data for accountability purposes, ESSA was still rooted in test and consequence educational culture.