# data[].attributes.headline
Educating EL in PA BEC from PA-includes list of legistation on the site

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Educating EL in PA BEC from PA-includes list of legistation on the site

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https://www.youtube.com/watch?v=R_yULJWwMVo

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

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We need understand the law and research before proceeding.

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1954 Brown V Topeka Kansas Board of Education

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1954 Brown V Topeka Kansas Board of Education

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https://www.youtube.com/watch?v=1siiQelPHbQ

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

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https://www2.ed.gov/about/offices/list/ocr/ell/lau.html

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LAU ET AL. v. NICHOLS ET AL.
No. 72-6520
SUPREME COURT OF THE UNITED STATES
414 U.S. 563
December 10, 1973, Argued
January 21, 1974, Decided

PRIOR HISTORY:

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

DISPOSITION:

483 F.2d 791, reversed and remanded.

SYLLABUS:

The failure of the San Francisco school system to provide English language instruction to approximately 1,800 students of Chinese ancestry who do not speak English, or to provide them with other adequate instructional procedures, denies them a meaningful opportunity to participate in the public educational program and thus violates ï¿½ 601 of the Civil Rights Act of 1964, which bans discrimination based "on the ground of race, color, or national origin," in "any program or activity receiving Federal financial assistance," and the implementing regulations of the Department of Health, Education, and Welfare. Pp. 565-569.

Douglas, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Rehnquist, JJ., joined. Stewart, J., filed an opinion concurring in the result, in which Burger, C. J., and Blackmun, J., joined, post, p. 569. White, J., concurred in the result. Blackmun, J., filed an opinion concurring in the result, in which Burger, C. J., joined, post, p. 571.

Opinions

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

The San Francisco, California, school system was integrated in 1971 as a result of a federal court decree, 339 F.Supp. 1315. See Lee v. Johnson, 404 U.S. 1215. The District Court found that there are 2,856 students of Chinese ancestry in the school system who do not speak English. Of those who have that language deficiency, about 1,000 are given supplemental courses in the English language. n1 About 1,800, however, do not receive that instruction.

note1 A report adopted by the Human Rights Commission of San Francisco and submitted to the Court by respondents after oral argument shows that, as of April 1973, there were 3,457 Chinese students in the school system who spoke little or no English. The document further showed 2,136 students enrolled in Chinese special instruction classes, but at least 429 of the enrollees were not Chinese but were included for ethnic balance. Thus, as of April 1973, no more than 1,707 of the 3,457 Chinese students needing special English instruction were receiving it.

This class suit brought by non-English-speaking Chinese students against officials responsible for the operation of the San Francisco Unified School District seeks relief against the unequal educational opportunities, which are alleged to violate, inter alia, the Fourteenth Amendment. No specific remedy is urged upon us. Teaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instructions to this group in Chinese is another. There may be others. Petitioners ask only that the Board of Education be directed to apply its expertise to the problem and rectify the situation. The District Court denied relief. The Court of Appeals affirmed, holding that there was no violation of the Equal Protection Clause of the Fourteenth Amendment or of ï¿½ 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. ï¿½ 2000d, which excludes from participation in federal financial assistance, recipients of aid which discriminate against racial groups, 483 F.2d 791. One judge dissented. A hearing en banc was denied, two judges dissenting. Id., at 805. We granted the petition for certiorari because of the public importance of the question presented, 412 U.S. 938.

The Court of Appeals reasoned that "every student brings to the starting line of his educational career different advantages and disadvantages caused in part by social, economic and cultural background, created and continued completely apart from any contribution by the school system," 483 F.2d, at 797. Yet in our view the case may not be so easily decided. This is a public school system of California and ï¿½ 71 of the California Education Code states that "English shall be the basic language of instruction in all schools." That section permits a school district to determine "when and under what circumstances instruction may be given bilingually." That section also states as "the policy of the state" to insure "the mastery of English by all pupils in the schools." And bilingual instruction is authorized "to the extent that it does not interfere with the systematic, sequential, and regular instruction of all pupils in the English language."

Moreover, ï¿½ 8573 of the Education Code provides that no pupil shall receive a diploma of graduation from grade 12 who has not met the standards of proficiency in "English," as well as other prescribed subjects. Moreover, by ï¿½ 12101 of the Education Code (Supp. 1973) children between the ages of six and 16 years are (with exceptions not material here) "subject to compulsory full-time education."

Under these state-imposed standards 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.

Basic English skills are at the very core of what these public schools teach. Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired those basic skills is to make a mockery of public education. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful. We do not reach the Equal Protection Clause argument which has been advanced but rely solely on ï¿½ 601 of the Civil Rights Act of 1964, 42 U. S. C. ï¿½ 2000d, to reverse the Court of Appeals.

That section bans discrimination based "on the ground of race, color, or national origin," in "any program or activity receiving Federal financial assistance." The school district involved in this litigation receives large amounts of federal financial assistance. The Department of Health, Education, and Welfare (HEW), which has authority to promulgate regulations prohibiting discrimination in federally assisted school systems, 42 U. S. C. ï¿½ 2000d-1, in 1968 issued one guideline that "school systems are responsible for assuring that students of a particular race, color, or national origin are not denied the opportunity to obtain the education generally obtained by other students in the system." 33 Fed. Reg. 4956. In 1970 HEW made the guidelines more specific, requiring school districts that were federally funded "to rectify the language deficiency in order to open" the instruction to students who had "linguistic deficiencies," 35 Fed. Reg. 11595.

By ï¿½ 602 of the Act HEW is authorized to issue rules, regulations, and orders n2 to make sure that recipients of federal aid under its jurisdiction conduct any federally financed projects consistently with ï¿½ 601. HEW's regulations, 45 CFR ï¿½ 80.3 (b)(1), specify that the recipients may not

"(ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;
. . . .
"(iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program."

note2 Section 602 provides:
"Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. . . ." 42 U. S. C. ï¿½ 2000d-1.

Discrimination among students on account of race or national origin that is prohibited includes "discrimination . . . in the availability or use of any academic . . . or other facilities of the grantee or other recipient." Id., ï¿½ 80.5 (b).

Discrimination is barred which has that effect even though no purposeful design is present: a recipient "may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination" or have "the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin." Id., ï¿½ 80.3 (b)(2).

It seems obvious that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from respondents' school system which denies them a meaningful opportunity to participate in the educational program -- all earmarks of the discrimination banned by the regulations. n3 In 1970 HEW issued clarifying guidelines, 35 Fed. Reg. 11595, which include the following:

note3 And see Report of the Human Rights Commission of San Francisco, Bilingual Education in the San Francisco Public Schools, Aug. 9, 1973.

"Where inability to speak and understand the English language excludes national origin-minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students."

"Any ability grouping or tracking system employed by the school system to deal with the special language skill needs of national origin-minority group children must be designed to meet such language skill needs as soon as possible and must not operate as an educational deadend or permanent track." Respondent school district contractually agreed to "comply with title VI of the Civil Rights Act of 1964 . . . and all requirements imposed by or pursuant to the Regulation" of HEW (45 CFR pt. 80) which are "issued pursuant to that title . . ." and also immediately to "take any measures necessary to effectuate this agreement." The Federal Government has power to fix the terms on which its money allotments to the States shall be disbursed. Oklahoma v. CSC, 330 U.S. 127, 142-143. Whatever may be the limits of that power, Steward Machine Co. v. Davis, 301 U.S. 548, 590 et seq., they have not been reached here. Senator Humphrey, during the floor debates on the Civil Rights Act of 1964, said: n4

note4 110 Cong. Rec. 6543 (Sen. Humphrey, quoting from President Kennedy's message to Congress, June 19, 1963).

"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." We accordingly reverse the judgment of the Court of Appeals and remand the case for the fashioning of appropriate relief.

Reversed and remanded.

MR. JUSTICE WHITE concurs in the result.

Concurring Opinions

MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in the result.

It is uncontested that more than 2,800 schoolchildren of Chinese ancestry attend school in the San Francisco Unified School District system even though they do not speak, understand, read, or write the English language, and that as to some 1,800 of these pupils the respondent school authorities have taken no significant steps to deal with this language deficiency. The petitioners do not contend, however, that the respondents have affirmatively or intentionally contributed to this inadequacy, but only that they have failed to act in the face of changing social and linguistic patterns. Because of this laissez-faire attitude on the part of the school administrators, it is not entirely clear that ï¿½ 601 of the Civil Rights Act of 1964, 42 U. S. C. ï¿½ 2000d, standing alone, would render illegal the expenditure of federal funds on these schools. For that section provides that "no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

On the other hand, the interpretive guidelines published by the Office for Civil Rights of the Department of Health, Education, and Welfare in 1970, 35 Fed. Reg. 11595, clearly indicate that affirmative efforts to give special training for non-English-speaking pupils are required by Tit. VI as a condition to receipt of federal aid to public schools:

"Where inability to speak and understand the English language excludes national origin-minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students." n1

note1 These guidelines were issued in further clarification of the Department's position as stated in its regulations issued to implement Tit. VI, 45 CFR pt. 80. The regulations provide in part that no recipient of federal financial assistance administered by HEW may "Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program; [or] "Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program." 45 CFR ï¿½ 80.3 (b)(1)(ii), (iv).

The critical question is, therefore, whether the regulations and guidelines promulgated by HEW go beyond the authority of ï¿½ 601. n2 Last Term, in Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, we held that the validity of a regulation promulgated under a general authorization provision such as ï¿½ 602 of Tit. VI n3 "will be sustained so long as it is 'reasonably related to the purposes of the enabling legislation.' Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 280-281 (1969)." I think the guidelines here fairly meet that test. Moreover, in assessing the purposes of remedial legislation we have found that departmental regulations and "consistent administrative construction" are "entitled to great weight." Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 210; Griggs v. Duke Power Co., 401 U.S. 424, 433-434; Udall v. Tallman, 380 U.S. 1. The Department has reasonably and consistently interpreted ï¿½ 601 to require affirmative remedial efforts to give special attention to linguistically deprived children.

note2 The respondents do not contest the standing of the petitioners to sue as beneficiaries of the federal funding contract between the Department of Health, Education,and Welfare and the San Francisco Unified School District.

note3 Section 602, 42 U. S. C. ï¿½ 2000d-1, provides in pertinent part:
"Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. . . ."

The United States as amicus curiae asserts in its brief, and the respondents appear to concede, that the guidelines were issued pursuant to ï¿½ 602.

For these reasons I concur in the result reached by the Court.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in the result.

I join MR. JUSTICE STEWART'S opinion and thus I, too, concur in the result. Against the possibility that the Court's judgment may be interpreted too broadly, I stress the fact that the children with whom we are concerned here number about 1,800. This is a very substantial group that is being deprived of any meaningful schooling because the children cannot understand the language of the classroom. We may only guess as to why they have had no exposure to English in their preschool years. Earlier generations of American ethnic groups have overcome the language barrier by earnest parental endeavor or by the hard fact of being pushed out of the family or community nest and into the realities of broader experience.

I merely wish to make plain that when, in another case, we are concerned with a very few youngsters, or with just a single child who speaks only German or Polish or Spanish or any language other than English, I would not regard today's decision, or the separate concurrence, as conclusive upon the issue whether the statute and the guidelines require the funded school district to provide special instruction. For me, numbers are at the heart of this case and my concurrence is to be understood accordingly.

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Overview of Lau v. Nichols decision of the United States Supreme Court.

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Castañeda vs. Pickard established basic principles for evaluating the effectiveness of English Language Development programs, which are that programs "must be:

based on 'a sound educational theory.'

'implemented effectively,' with adequate resources and personnel.

evaluated as effective in overcoming language [barriers]* after a trial period." (Source)

*Please note that the source text uses the term "handicaps" instead of barriers; given the year of this decision (and the publication of this information by Stanford), this outdated language does not reflect current recommended practices for using asset based language when referring to the skills and abilities of people who are multilingual. Please review PSESD's publication, "Labels or Limitations: Recommendations for Asset-Based Language" for more information.

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Castañeda v. Pickard: Are ELLs receiving the services they need?

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Lawsuit Is Filed Accusing State Of Overuse of Bilingual Classes (Published 1995)

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https://www.asha.org/Advocacy/federal/idea/IDEA-Part-B-Issue-Brief-Culturally-and-Linguistically-Diverse-Students/

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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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John, Jr. Collier, photographer. Ojo Sarco, New Mexico. One-room school in an isolated mountainous Spanish-American community, which has eight grades and two teachers. The teachers have little equipment with which to work and the ABCs, penmanship, and grammar are taught on the blackboard. 1943. Library of Congress Prints and Photographs Division.

Serna v. Portales Municipal Schools (1974) was a class-action lawsuit filed by a group of Mexican-American families against New Mexico's Portales school system for discriminatory practices that denied equal educational opportunities to Spanish-surnamed students.

Judy Serna was the lead plaintiff of Serna v. Portales (1974) and a student at Lindsey Elementary School, where a majority of students with Spanish surnames were enrolled during the 1972-1973 academic year. According to the plaintiffs, the Portales school district deprived ESL (English as a second language) students of a meaningful bilingual and multicultural education, violating their statutory and constitutional rights under the 14th Amendment and Title VI of the Civil Rights Act of 1965.

The plaintiffs demonstrated evidence that Lindsey school students were 1.3 years behind the national average level and that Spanish-surnamed students had higher dropout rates than their Anglo counterparts. Psychologists also testified on the harmful learning consequences Spanish language students may have after stepping into an unfamiliar English language setting.

In 1972, the U.S. Court for the District of New Mexico ruled in favor of the plaintiffs, finding evidence of inadequate bilingual school curriculum, educational disparities among Spanish-surnamed students, and violations of the 14th Amendment and Title VI by the Portales school system.

The court instructed the Portales school system to implement a meaningful education to all, including the recruitment of bilingual teachers and a curriculum that featured daily bilingual instruction to all Portales School District students. Following the court's decision, the defendants unsuccessfully appealed to the U.S. Tenth Circuit Court of Appeals, which upheld the lower court's ruling.

Timeline

1964

President Lyndon B. Johnson signs the Civil Rights Act of 1964, including Title VI which states that "No person 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".

1971

The United States Congress enacts the Bilingual Instruction Act, which recognizes the educational need of students with limited English proficiency and provides federal funds to schools to establish bilingual programs.

1972

The U.S. District Court of New Mexico rules in favor of Judy Serna, finds evidence of inadequate bilingual educational curriculum within the Portales School District, and instructs the public school system to implement a series of reforms. The Portales school system appeals to the U.S. Tenth Circuit Court of Appeals.

1974

In Lau v. Nichols (1974), the U.S. Supreme Court case rules on behalf of non-English speaking Chinese students, who had been deprived from a meaningful bilingual education in violation with Title VI of the Civil Rights Act of 1964. Following the Supreme Court ruling of Lau v. Nichols (1974), the U.S. Circuit Court of Appeals upholds the U.S. District Court of New Mexico's ruling on Serna v. Portales (1974).

Resources

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Research Guides: A Latinx Resource Guide: Civil Rights Cases and Events in the United States: 1974: Serna v. Portales

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This Hispanic Reading Room research guide focuses on 20th and 21st century American court cases, legislation, and events that had important impacts on civil rights in Chicana/o/x, Hispanic, Latina/o/x, Mexican-American and Puerto Rican communities

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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.”

Landmark Cases in Special Education Law - Special Education Lawyer (specialeducationlawyernj.com)

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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.

# data[].attributes.attachment_link.title
Landmark Cases in Special Education Law - Special Education Lawyer

# data[].attributes.attachment_link.description
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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Timeline of Special Education Law and policy shapers

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1982- A free public education is required for all children living in the United States, even if they are living there illegally.

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Plyler vs. Doe: A Landmark Supreme Court Case

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Washington State Dual Language Initiative

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Washington State Dual Language Initiative

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Moore v. British Columbia (Education) - SCC Cases

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This page contains a form to search the Supreme Court of Canada case information database. You can search by the SCC 5-digit case number, by name or word in the style of cause, or by file number from the appeal court.

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The Department of Homeland Security, et. al v. Regents of the University of California (2020)

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The Department of Homeland Security, et. al v. Regents of the University of California (2020)

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Allows status to be renewed and new undocumented immigrants to apply for status.  Read more here https://supreme.justia.com/cases/federal/us/591/18-587/

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Supreme Court DACA ruling analysis (What you need to know)

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https://openstates.org/or/bills/2021%20Regular%20Session/HB2056/

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Abstract

Expands high school diploma requirements related to completion of credits in English to allow completion of credits in language arts. Makes relevant related changes in statute to expand requirements for English to requirements for language arts. Eliminates requirement that instruction in all subjects must be conducted in English.

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HB 2056 - Oregon House (2021 Regular Session) - Open States

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Expands high school diploma requirements related to completion of credits in English to allow completion of credits in language arts. Makes relevant related changes in statute to expand requirements for English to requirements for language arts. Eliminates requirement that instruction in all subjects must be conducted in English.

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In this excerpt from Foundations for Teaching English Language Learners: Research, Theory, Policy, and Practice ( Caslon, 2010), Wayne Wright summarizes the landmark U.S. court cases that have had significant implications for ELLs. In particular, Wright focuses on cases relating to segregation, the right of communities to teach their native languages to children, and the linguistic and education needs of ELLs.

Wright also provides an overview of the No Child Left Behind legislation in No Child Left Behind and ELLs.

Note: For information about Plyler vs. Doe, which gives all children a right to a free, public education regardless of immigration status, see this related resource section.

Important Court Decisions and Legislation

Historical reluctance by many states throughout the country to provide equitable educational opportunities to ELL and other minority students and controversies over the use of languages other than English in public schools have sparked a large number of lawsuits that address these issues. The court decisions that grew out of these lawsuits have led to legislative changes that have helped to shape the policy climate of today. In this section we briefly review some of these cases and related legislation.

First, however, we must consider the 14th Amendment to the U.S. Constitution. This amendment, ratified in 1868 after the Civil War, declares in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Many of the cases discussed in this section are based on the due process and the equal protection clauses of the 14th Amendment.

Addressing Segregation

Plessy v. Ferguson and Brown v. Board of Education

In 1896 the U.S. Supreme Court issued its now infamous decision in Plessy v. Ferguson that "separate but equal" public facilities, including school systems, are constitutional. Although the decision was related to the segregation of African American students, in many parts of the country Native American, Asian, and Hispanic students were also routinely segregated. The Supreme Court unanimously reversed Plessy v. Ferguson 58 years later in 1954 in Brown v. Board of Education.

Independent School District v. Salvatierra, Alvarez v. Lemon Grove, and Méndez v. Westminster School District

A few lesser known lower-level cases concerning the segregation of Hispanic student predate Brown. In Independent School District v. Salvatierra (1930), Mexican American parents in the small border town of Rio, Texas, brought suit against the school district over segregation. The court sided with the school district that argued the segregation was necessary to teach the students English. This argument did not hold, however, for two similar cases in California: Alvarez v. Lemon Grove (1931) and Méndez v. Westminster School District (1947). The judge in Alvarez noted that segregation was not beneficial for the students' English language development (Trujillo, 2008), and the success of the Méndez case helped set the stage for Brown.

Like Plessy, Brown v. Board of Education focused on the segregation of African American students. But by ruling that states are responsible for providing "equal educational opportunities" for all students, Brown made bilingual education for ELLs more feasible.

Guey Heung Lee v. Johnson and Johnson v. San Francisco Unified School District

In some instances, however, desegregation efforts made it more difficult. In San Francisco, for example, Chinese Americans fought a desegregation order that would force students out of neighborhood schools that provided bilingual English-Chinese programs for newcomer Chinese ELL students. The Chinese community took the case to court in 1971 in G uey Heung Lee v. Johnson, and it was appealed to the 9th Circuit Court of Appeals in Johnson v. San Francisco Unified School District. In 1974, the court ruled against the Chinese community, declaring simply Brown applies to races.

Despite significant progress in the half century since Brown, the practice of segregation in public schools remains widespread (Kozol, 2005). School districts that provide bilingual education and ESL programs constantly struggle to balance the need for separate classes where the unique needs of ELL students can be addressed against the need to avoid prolonged segregation of ELLs from other students.

The Right of Communities to Teach Their Native Languages to Their Children

Meyers v. Nebraska

Three important cases have addressed the issue of private language-schooling for language-minority students. In the early 1900s, German communities typically ran their own private schools where students received instruction in both German and English. Then, in 1919, Nebraska passed the Siman Act, which made it illegal for any school, public or private, to provide any foreign language instruction to students below the 8th grade. Roman Catholic and Lutheran German parochial schools joined together to file suit against the act under the 14th Amendment.

The state court ruled that the act could not prevent schools from providing German language instruction outside of the hours of regular school study. In response, the parochial schools taught German during an extended recess period. Language restrictionist policymakers sought to close the loopholes in the law and fined Robert Meyers $25 fine for teaching Bible stories to 10-year-old children in German. The case, Meyers v. Nebraska (1923), went to Supreme Court, which consolidated this case with similar cases from Ohio and Idaho.

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.

Meyers is an important case because it makes clear that the 14th Amendment provides protection for language minorities. As the legal expert Sandra Del Valle (2003) points out, however, this decision did not give language minorities additional rights and privileges but simply ensured that "laws not be used as a rationale for denying them the same rights accorded others" (p. 39). Furthermore, because the focus of this case was on parochial schools, the decision was not an endorsement of bilingual education.

Farrington v. Tokushige

In a similar case handed down in Hawaii in 1927, Farrington v. Tokushige, the court offered further protections of after-school community language programs after attempts by education authorities to put restrictions on Japanese and Chinese heritage language programs.

In a similar case handed down in Hawaii in 1927, Farrington v. Tokushige, the court offered further protections of after-school community language programs after attempts by education authorities to put restrictions on Japanese and Chinese heritage language programs.

Despite these victories, as Del Valle observes, these cases were essentially about parents' rights rather than language rights. In addition, within the court's decision there were still signs of negative attitudes toward the "foreign population." Indeed, Hawaii tried yet again to limit private foreign language instruction. When the Chinese communities after World War II sought to restart their private language schools, the state passed the "Act Regulating the Teaching of Foreign Languages to Children." Part of the state's rationale was the need to "protect children from the harm of learning a foreign language" (Del Valle, 2003, p. 44).

Stainback v. Mo Hock Ke Kok Po

In Stainback v. Mo Hock Ke Kok Po (1947), the state court struck down the statute, rejecting the state's claim and arguing that, at least for "the brightest" students, study of a foreign language can be beneficial. The case was decided on the basis of Farrington and, once again, had more to do with parents' rights in directing the education of their children than with language rights.

Xenophobia toward German and Japanese Americans during World War I and World War II succeeded where attempts at language restrictive legislation failed. When Germany and later Japan became war enemies of the United States, the number of U.S. schools that provided instruction in these languages dropped dramatically, largely because of fears by members of these communities that such instruction would lead others to question their loyalty to the United States (Tamura, 1993; Wiley, 1998).

Nevertheless, the legacy of these cases, despite agreement in the courts about the need for states to Americanize minorities and their right to control the language used for instruction in public schools, is that minority communities have a clear right to offer private language classes in which their children can learn and maintain their home languages. Thus, the common practice of language-minority communities today in offering heritage language programs after school and on weekends is protected by the U.S. Constitution.

Addressing the Linguistic and Educational Needs of ELL Students

Case law concerning the linguistic and educational needs of ELL students has had a major impact on federal and state policy for ELL students, their families, and their communities. Since the early 1970s, conflict and controversy have surrounded the issue of what constitutes an appropriate education for ELLs. Some rulings provide support for bilingual education; others erode that support. Some cases involve suits filed against bilingual education; others involve suits filed against anti-bilingual education voter initiatives.

Equal Educational Opportunities for ELLs

Lau v. Nichols

The 1974 Supreme Court case Lau v. Nichols resulted in perhaps the most important court decision regarding the education of language-minority students. This case was brought forward by Chinese American students in the San Francisco Unified School District who were placed in mainstream classrooms despite their lack of proficiency in English, and left to "sink or swim." The district had argued that it had done nothing wrong, and that the Chinese American students received treatment equal to that of other students. Justice William Douglass, in writing the court's opinion, strongly disagreed, arguing:

Under these state-imposed standards 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.... We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful.

The influence of Lau on federal policy was substantial. After the court's decision, the U.S. Department of Education's Office of Civil Rights created the Lau Remedies. Whereas Title VII Bilingual Education Act regulations applied only to funded programs, the Lau Remedies applied to all school districts and functioned as de facto compliance standards.

The Office of Civil Rights used the Lau decision to go after districts that, like San Francisco, were essentially ignoring the needs of its LEP students. Even though the court decision does not mandate any particular instructional approach, the Lau Remedies essentially require districts to implement bilingual education programs for LEP students. James Lyons (1995), former president of the National Association for Bilingual Education, explains further:

The Lau Remedies specified proper approaches, methods and procedures for (1) identifying and evaluating national-origin-minority students' English-language skills; (2) determining appropriate instructional treatments; (3) deciding when LEP students were ready for mainstream classes; and (4) determining the professional standards to be met by teachers of language-minority children. Under the Lau Remedies, elementary schools were generally required to provide LEP students special English-as-a-second-language instruction as well as academic subject-matter instruction through the students' strongest language until the student achieved proficiency in English sufficient to learn effectively in a monolingual English classroom. (pp. 4-5)

The essence of Lau was codified into federal law though the Equal Educational Opportunities Act of 1974 (EEOA), soon after the case was decided. Section 1703(f) of this act declares: "No state shall deny educational opportunities to an individual on account of his or her race, color, sex, or national origin by ... (f) the failure of an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs."

At the time of its passage, this section of the EEOA was viewed as a declaration of the legal right for students to receive a bilingual education, under the assumption that this is what Lau essentially mandated (Del Valle, 2003). Although other legal actions have since made it clear that the Supreme Court never did mandate bilingual education, the EEOA remains in effect and several subsequent lawsuits have been based on this important legislation.

Rulings that Support Bilingual Education

United States v. Texas

United States v. Texas (1971, 1981) includes mandates that affect all Texas schools. The court ordered the district to create a plan and implement language programs that would help Mexican American students learn English and adjust to American culture and also help Anglo students learn Spanish. The court relied heavily on the testimony of 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. (For a complete discussion of the theory, see Cardenas & Cardenas, 1977.)

Serna v. Portales

Serna v. Portales (1974) was the first case to raise the issue of bilingual education outside of the context of desegregation (Del Valle, 2003). The case dealt with a White-majority school in New Mexico that failed to meet the unique needs of "Spanish-surnamed students." It was argued under Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of "race, color, or national origin" in any program that receives federal funding. The court found the school's program for these students to be inadequate. The judge declared, "It is incumbent on the school district to reassess and enlarge its program directed to the specialized needs of the Spanish-surnamed students" and to create bilingual programs at other schools where they are needed. This case was first decided in 1972. Later it was appealed to the 10th Circuit Court of Appeals and decided in 1974 just six months after Lau. Like Lau, it makes clear that schools cannot ignore the unique language and educational needs of ELL students.

Aspira v. New York

Legal action taken by Puerto Rican parents and children in New York in Aspira v. New York (1975) resulted in the Aspira Consent Decree, which mandates transitional bilingual programs for Spanish-surnamed students found to be more proficient in Spanish than English. The Aspira Consent Decree is still in effect and has been a model for school districts across the country, though it is frequently under attack by opponents of bilingual education.

Bilingual education in New York received a further boost a few years later in Rios v. Reed (1978). The case was argued under Title VI of the Civil Rights Act and the EEOA. Puerto Rican parents brought suit claiming that many so-called bilingual education programs were not bilingual but based mainly on ESL. The federal court found the district's bilingual programs to be woefully inadequate, pointing to the lack of trained bilingual teachers and the absence of a clearly defined curriculum, clear entrance and exit criteria, and firm guidelines about how much instruction should be in the native language of the students. Although the court issued no specific remedies, the federal Office of Civil Rights came in to ensure that the district made improvements. This case is significant because it made a strong case for offering bilingual education and for doing it right.

Rulings That Erode Support for Bilingual Education

San Antonio Independent School District v. Rodriguez

Another Texas case, San Antonio Independent School District v. Rodriguez (1973), although not directly related to bilingual education, had some serious implications for it. It dealt with inequalities in school funding, with the plaintiff charging that predominantly minority schools received less funding than schools that served predominantly White students. The case was argued under the Equal Protection Clause of the 14th Amendment, but the U.S. Supreme Court ruled that there is no fundamental right to an education guaranteed by the Constitution. Indeed, if there is no constitutional right to an education under the 14th Amendment, as Del Valle (2003) points out, "there is clearly no constitutional right to a bilingual education" (p. 234, emphasis in original).

Flores v. Arizona and Williams v. California

Because of this case, all subsequent cases over inadequacies in school funding have had to be argued under state constitutions. Some of these cases, such as Flores v. Arizona (2000) and Williams v. California (settled in 2004), include or specifically address inadequacies related to the education of ELL students. But despite court orders in Flores to increase funding for ELL students, state legislators and educational leaders have used a wide variety of stall tactics and legal maneuvering to avoid fully complying with the court's order.

In 2009 the Arizona legislature and the state superintendent of public instruction appealed the case to the U.S. Supreme Court. The high court essentially agreed with the state leaders that the situation in Arizona for ELLs had changed substantially since the original lower court ruling, and thus the lower courts must take these changes into consideration. Although the ruling was disappointing to the plaintiffs, it nonetheless keeps the legal battle alive, with the attorney and advocates in the state gathering new evidence of the harm caused by recent state policies and the underfunding of ELLs' education. This case demonstrates that even when courts issue decisions with specific mandates, changes do not happen immediately and are often resisted by political figures who disagree with the decision.

Otero v. Mesa County Valley School District

In the 1980s, in the wake of Lau, support for bilingual education was eroded by the courts. For example, a case in Colorado, Otero v. Mesa County Valley School District (1980), failed in the plaintiffs' attempt to obtain a court order for bilingual education. The plaintiffs wanted a plan for its Mexican American students like the one based on the testimony of Cardenas that was recommended by the court in United States v. Texas (1971) even though they made up a small number of students in the district, and less than 3% could even speak or understand Spanish. As in United States v. Texas, the court's decision made it clear that despite Lau, there is no constitutional right to bilingual or bicultural education (Del Valle, 2003).

Keyes v. School District No. 1

In another Colorado case, Keyes v. School District No. 1 (1983), the court also rejected a Cardenas-like plan on the basis that Lau did not mandate bilingual education and that according to the decision in Rodriguez there is no constitutional right to education. The bilingual education component was just one part of this complicated desegregation case. Del Valle suggests that the court seemed content that the district was simply offering a "number of programs" for ELLs, without examining the adequacy of these programs. This issue of program adequacy, however, was addressed in subsequent lawsuits.

Castañeda v. Pickard

The right to bilingual education suffered a further blow in 1981 in Castañeda v. Pickard. The case originated in Texas, where plaintiffs charged that the Raymondville Independent School District was failing to address the needs of ELL students as mandated by the EEOA. The federal court ignored the old assumption that Lau and the EEOA mandated bilingual education. Nevertheless, it did find that Raymondville fell far short of meeting the requirements of the EEOA. A major outcome of this case is a three-pronged test to determine whether schools are taking "appropriate action" to address the needs of ELLs as required by the EEOA.

The Castañeda standard mandates that programs for language-minority students must be (1) based on a sound educational theory, (2) implemented effectively with sufficient resources and personnel, and (3) evaluated to determine whether they are effective in helping students overcome language barriers (Del Valle, 2003). Since the U.S. Supreme Court decision in Lau, two other lawsuits have been decided in the high court that, while not related to bilingual education, nonetheless undermine the original legal argument of Lau. [These two cases are Regents of the University of California v. Bakke (1978) and Alexander v. Sandoval (2001).] Thus, the Castañeda standard, which encapsulates the central feature of Lau - that schools do something to meet the needs of ELL students - has essentially become the law of the land in determining the adequacy of programs for ELLs.

Del Valle (2003), however, points out the shortcomings of the Castañeda test. Referring to prongs 1 and 2, she notes that nearly any program can be justified by an educational theory and that some approaches require very little in the way of staff or funding. Of even greater concern is that, under prong 3, a certain amount of time must pass before a determination can be made about the adequacy of the programs. Thus, many students may be harmed before inadequate programs are identified and rectified.

Gomez v. Illinois State Board of Education

Despite these shortcomings, a case 6 years after Castañeda - Gomez v. Illinois State Board of Education (1987) - demonstrated the value of the Castañeda test in legal efforts to rectify inadequate programs. The U.S. Court of Appeals for the 7th Circuit relied heavily on Castañeda in its decision and gave state boards of education the power to enforce compliance with the EEOA. The court declared, in a ruling much like Lau, that school districts have a responsibility to serve ELL students and cannot allow children to just sit in classrooms where they cannot understand instruction. However, as in Lau, the court did not mandate any specific program models.

Recent Lawsuits

Between 1995 and 2001, opponents of bilingual education in a few communities filed lawsuits against their school districts (e.g., Bushwick Parents Organization v. Mills [1995] in New York). Del Valle (2003) suggests that through these cases opponents of bilingual education attempted to turn the original purpose of bilingual education on its head by charging that a program that was developed to ensure that ELL students have the same educational opportunities as all other students was actually preventing equal educational opportunities for ELL students.

These cases also illustrate that attacks on bilingual education are rarely grass-roots efforts by Latino parents but rather are orchestrated by powerful outsiders who mislead parents into joining their cause and in the process often create divisions within Latino communities. Although these legal attacks on bilingual education failed, opponents of bilingual education have scored major victories in the court of public opinion through the English for the Children voter initiatives described earlier.

These voter initiatives, however, have not gone uncontested. Five cases in California were based on challenges to Proposition 227: Quiroz v. State Board of Education (1997); Valerie G. v. Wilson (1998); McLaughlin v. State Board of Education (1999); Doe v. Los Angeles Unified School District (1999); California Teachers Association v. Davis (1999). At least two cases in Arizona were based on challenges to Proposition 203: Sotomayor and Gabaldon v. Burns (2000) and Morales v. Tucson Unified School District (2001). Although some of these resulted in small victories, none has succeeded in overturning the voter initiatives.

Summary

Case law has had a major impact on federal and state policy for ELL students and their families and communities. While the courts have been reluctant to mandate a particular educational model or approach or to give language minorities fundamental rights directly related to the use of their native languages, the courts have nonetheless made it clear that schools may not ignore the unique needs of ELL students.

Any program for ELLs, regardless of the language of instruction or the models used, must do two very important things: teach English and teach academic content. Schools must provide instruction in English for ELLs because they are not yet proficient in English, and because they need fluency in English to succeed in mainstream classrooms and to be successful in life in general in the United States. At the same time, schools cannot focus just on teaching English. Students must also learn the same academic content their English proficient peers are learning, in such subjects as language arts, math, science, social studies, music, art, and physical education. In Chapter 4 we review the different program models for ELL students and how these programs address the legal requirements for teaching English and the content areas.

Acknowledgements

Our policy section is made possible by a generous grant from the Carnegie Corporation. The statements and views expressed are solely the responsibility of the authors.

Wright, W. E. (2010). Foundations for Teaching English Language Learners: Research, Theory, Policy, and Practice. Excerpt from Chapter 3, "Language and Education Policy for ELLs." (pp. 70-76). © Caslon Publishing. Printed with permission, all rights reserved.

Cardenas, J. A., & Cardenas, B. (1977). The theory of incompatibilities: A conceptual framework for responding to the educational needs of Mexican American children. San Antonio, TX: Intercultural Development Research Association.

Del Valle, S. (2003). Language rights and the law in the United States: Finding our voices. Clevedon, UK: Multilingual Matters.

Kozol, J. (2005). The shame of the nation: The restoration of apartheid schooling in America. New York: Crown.

Lyons, J. (1995). The past and future directions of federal bilingual education policy. In O. García & C. Baker (Eds.), Policy and practice in bilingual education: Extending the foundations (pp. 1-15). Clevedon, UK: Multilingual Matters.

Tamura, E. H. (1993). The English-only effort, the anti-Japanese campaign, and language acquisition in the education of Japanese Americans in Hawaii, 1914-1940. History of Education Quarterly, 33(1), 37-58.

TESOL (Teachers of English to Speakers of Other Languages). (2006a). PreK-12 English language proficiency standards. Alexandria, VA: Author.

Trujillo, A. (2008). Latino civil rights movement. In J. M. González (Ed.), Encyclopedia of Bilingual Education (pp. 505-510). Thousand Oaks, CA: Sage.

U.S. Department of Education. (2003a). Non-regulatory guidance on the Title III State Formula Grant Program. Part II: Standards, assessments, and accountability. Washington, DC: Office of English Language Acquisition, Language Enhancement, and Academic Achievement for Limited English Proficient Students.

Wiley, T. G. (1998). The imposition of World War I era English-only policies and the fate of German in North America. In T. Ricento & B. Burnaby (Eds.), Language and politics in the United States and Canada: Myths and realities(pp. 211-241). Mahwah, NJ: Lawrence Erlbaum.

For any reprint requests, please contact the author or publisher listed.

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Landmark Court Rulings Regarding English Language Learners

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In this excerpt from Foundations for Teaching English Language Learners: Research, Theory, Policy, and Practice ( Caslon, 2010), Wayne Wright summarizes the landmark U.S. court cases that have had significant implications for ELLs. In particular, Wright focuses on cases relating to segregation, the right of communities to teach their native languages to children, and the linguistic and education needs of ELLs.

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Spring Branch Indep. Sch. Dist. v. O.W., 76 IDELR 234

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Spring Branch Indep. Sch. Dist. v. O.W., 76 IDELR 234

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ORDER

ALFRED H. BENNETT UNITED STATES DISTRICT JUDGE

Before the Court are the Fifth Circuit's August 7, 2020 Opinion (the "Opinion"), the Supplemental Briefing on Remedies filed by Plaintiff Spring Branch Independent School District ("SBISD") (Doc. #141), Defendant O.W's Response (Doc. #142), and SBISD's Reply (Doc. #142). Having reviewed the parties' arguments and applicable legal authority, the Court finds that SBISD denied O.W. a FAPE during the 2014-2015 school year and remands this case to the Special Education Hearing Officer ("SEHO") to determine an appropriate compensatory award.

I. Procedural History and Background

The Fifth Circuit remanded this case to address "the remedy question" in light of its Opinion, which affirmed in part and reversed in part this Court's March 28, 2018 Order. Spring Branch Indep. Sch. Dist. v. O.W. by Hannah W., 961 F.3d 781, 800 (5th Cir. 2020), cert, denied sub nom. Spring Branch Indep. Sch., Dist. v. O. W. By Next Friend Hannah W., 141 S.Ct. 1389, 209 L.Ed.2d 129 (2021); Doc. #90. This case stems from a dispute over the provision of a free appropriate public education ("FAPE") between O.W., a minor student, and SBISD, the school district O.W. enrolled in for fifth grade during the 2014-2015 school year. A detailed explanation of O.W.'s experience at SBISD can be found in the Court's March 2018 Order and the Fifth Circuit's August 2020 Opinion. Doc. #90; O. W. by Hannah W., 961 F.3d at 785. In relevant part, when O.W. began fifth grade, he immediately exhibited behavioral problems that eventually caused him to be removed from class on a daily basis. O. W. by Hannah W., 961 F.3d at 787. At an October 8, 2014 meeting, O.W.'s Section 504 Committee, which included O.W.'s parents and SBISD school officials, determined that O.W. was eligible for Section 504 accommodations and created an Individual Services and Accommodation Plan for him. AR 1838-40. After the accommodations proved ineffective, the Section 504 Committee met again on January 15, 2015. AR 1834. At this meeting, SBISD agreed to refer O.W. for a full individual and initial evaluation ("FIE" or "special education evaluation"). Id. The evaluation was completed on February 24, 2015 and concluded that O.W. was eligible for special education. AR 1609.

An Admission, Review, and Dismissal Committee ("ARDC") meeting was held on March 11, 2015, where an Individualized Education Program ("IEP") was developed for O.W. AR 1630. O.W.'s IEP went into effect on March 23, 2015. Id. Once the IEP was in place, SBISD employees used timeouts, physical restraints, and even police intervention to address O.W.'s behavioral problems. AR 2754, 52-56. O.W.'s difficulties continued and in May, O.W.'s school day was shortened to three hours per day. O. W. by Hannah W., 961 F.3d at 789. By the end of the school year, O.W. had "so regressed in his therapy that it was really difficult for him to . . . even go to school, " and O.W.'s parents ultimately withdrew him from school three days before the school year ended. Id.; AR 44, 2193-94.

When an SBISD teacher suggested that O.W. rccieve math tutoring over the summer, O.W's parents signed him up for tutoring at Fusion Academy, a private school. AR 71. O.W. "was happy and doing well at Fusion, " so his parents unilaterally decided to enroll him there for the 2015-2016 school year. AR 97. O.W.'s mother did not inform SBISD that he would not be re-enrolling for the 2015-2016 school year until August 14, 2015, less than 10 days before the school year began. O.W. by Hannah W., 961 F.3d at 789; AR 1522. O.W. attended Fusion Academy for the 2015-2016 school year. O. W. by Hannah W., 961 F.3d at 789.

O.W. also began the 2016-2017 school year at Fusion Academy but was removed from the school in February of 2017 and enrolled in an out-of-state residential school. O. W. by Hannah W., 961 F.3d at 789.

O.W.'s parents filed an administrative complaint against SBISD on October 28, 2015, approximately two months into the 2015-2016 school year. Id. The parties appeared for an administrative hearing on May 24, 2016. Id. The SEHO issued a decision in O.W.'s favor on August 5, 2016, finding that SBISD (1) violated its Child-Find duty by unreasonably delaying its referral of O.W. for a special education evaluation, (2) failed to implement O.W.'s IEP, and (3) denied O.W. a FAPE during the 2014-2015 school year. Id. Based on these findings, the SEHO found that O.W. was entitled to reimbursement for tuition and tutoring at Fusion for the 2015 -2016 school year and to a compensatory education award of tuition at Fusion for the 2016-2017 school year. Id. SBISD appealed that decision to this Court, who granted summary judgment for O.W. and affirmed the SEHO's findings and decision on March 29, 2018. Id. at 789-90. SBISD appealed this Court's decision to the Fifth Circuit. Id. at 790.

The Fifth Circuit affirmed that SBISD violated its Child-Find duty by unreasonably waiting 99 days from October 8, 2014 to January 15, 2015 to refer O.W. for a special education evaluation. Id. at 793. It also affirmed that SBISD failed to implement O.W.'s IEP by using timeouts and shortening O.W.'s school day to three hours per day. Id. at 797, 799. However, the Fifth Circuit reversed the SEHO and this Court's findings that the use of physical restraints, police interventions, and a delayed start of O.W.'s school day violated O.W.'s IEP. Id. at 797 -99. In light of these findings, the Fifth Circuit remanded this case to determine the appropriate remedies. Id. at 800. SBISD then filed a petition for writ of certiorari to appeal the Fifth Circuit's decision to the Supreme Court and the Court stayed this case pending a ruling on the petition. Doc. #148. The Supreme Court denied SBISD's petition. Doc. #150. Accordingly, the stay is hereby LIFTED and the parties' supplemental briefing on remedies is ripe for review.

IL Legal Standard

Under the Individuals with Disabilities Education Act ("IDEA"), a party aggrieved by a SEHO's findings and decision may bring suit in district court. 20 U.S.C. § 1415(i). A district court reviewing a SEHO's decision "shall grant such relief as [it] determines is appropriate." 20 U.S.C. § 1415(i)(2)(C)(iii). "The ordinary meaning of these words confers broad discretion on the court" and "equitable considerations arc relevant in fashioning relief." Sch. Comm, of Town of Burlington, Mass. v. Dep '1 of'Educ. of Mass., 471 U.S. 359, 369, 374 (1985). "The district court's review is virtually de novo" and "the court must ultimately reach an independent decision based on a preponderance of the evidence." Dallas Indep. Sch. Dist. v. Woody, 865 F.3d 303, 308-09 (5th Cir. 2017) (quotation omitted). However, "| a]n issue of law or fact decided on appeal may not be reexamined [] by the district court on remand." Lindquist v. City of Pasadena, Tex., 656 F.Supp.2d 662, 677 (S.D. Tex. 2009), aff'd, 669 F.3d 225 (5th Cir. 2012).

III. Analysis

a. Actionable Violations

The Fifth Circuit affirmed that SBISD violated its Child-Find duty when it unreasonably delayed referring O.W. for a special education evaluation "between October 8, 2014 and January 15, 2015, " totaling "99 days, or three months and seven days." O. W. by Hannah W., 961 F.3d at 793, 795. The Child-Find duty imposed by the IDEA requires school districts to "identify, locate, and evaluate students with suspected disabilities within a reasonable time after the school district is on notice of facts or behavior likely to indicate a disability." Id. at 791. Here, the Fifth Circuit found that by October 8, 2014, SBISD "was more than reasonably on notice of acts or behavior likely to indicate a disability before implementing § 504 accommodations, and it was, therefore, required to evaluate O.W." Id. at 794 (quotation omitted).

SBISD argues that this delay was a harmless procedural error because Texas "safe harbor" provisions give school districts 45 school days to evaluate a child once a parent consents to the evaluation and 30 calendar days to implement an IEP after the evaluation is completed, thus covering much of the 99-day delay. Doc. #141 at 4-5. But the 99-day delay the Fifth Circuit found to be unreasonable was SBISD's delay in referring O.W. for a special education evaluation-not a delay in evaluating O.W. once the referral was made or in implementing an IEP once the evaluation was completed. See O.W. by Hannah W., 961 F.3d at 795. Texas law offers no such "safe harbor" for referring a child for a special education evaluation and this Court is bound by the Fifth Circuit's determination that the 99-day delay in referring O.W. for a special education evaluation violated SBISD's Child-Find duty. See id.-, Lindquist, 656 F.Supp.2d at 677.

Thus, the only question is whether this violation is actionable. For a procedural violation of the IDEA, such as an unreasonable delay in complying with the Child-Find duty, a child is entitled to relief "only if the procedural inadequacies-(I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a free public education to the parents' child; or (III) caused a deprivation of education benefits." O. W. by Hannah W., 961 F.3d at 800 nl9 (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)). In this case, there are numerous indications that O.W. was deprived of education benefits during the 99-day delay. For example, despite being identified as gifted and talented, O.W. failed his math and science benchmarks. AR 1658. After a few months of participating in SPIRAL, SBISD's gift and talented program, O.W.'s parents pulled him from the program due to his poor grades, difficulties with transitions, and challenges on the bus ride to the program. AR 24, 1865. By January 2015, O.W. had failing grades, multiple in-school and out-of-school suspensions due to behavioral problems, and excessive absences due to his resistance to attending school. AR 38. As such, the Court finds that SBISD's Child-Find violation "caused a deprivation of education benefits" for O.W. and thus entitled O.W. to relief. 20 U.S.C. § 1415(f)(3)(E)(ii); O.W. by Hannah W, 961 F.3d at 800 nl9.

The Fifth Circuit also found that SBISD denied O.W. a FAPE by failing to implement his IEP. O. W. by Hannah W., 961 F.3d at 797, 799. The IDEA "requires states and local educational agencies receiving federal IDEA funds to make a FAPE available to children with certain disabilities." Id. at 795. "Schools provide students a FAPE based on IEPs, " which "must be both adequate in design and properly implemented." Id. If a school's failure to implement an IEP is "substantial or significant" and the child is denied an education benefit, that child has been denied a FAPE and the IDEA violation is actionable. Id. at 795 -96; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000). In this case, the Fifth Circuit found that SBISD's use of timeouts "was a significant or substantial departure from O.W.'s IEP" and that "[d]uring the time period [in which] this departure occurred, O.W. regressed both educationally and behaviorally." O. W. by Hannah W., 961 F.3d at 797. Additionally, the May 6, 2015 modification, "which approximately halved O.W.'s school day, was a substantial and significant deviation from the IEP which indisputably resulted in a loss of academic benefits" for O.W. Id. at 799.

As such, the Court finds that O.W. is entitled to an equitable remedy for SBISD's Child Find violation and failures to implement his IEP.

b. Remedy

In light of SBISD's actionable IDEA violations, the Court must determine the appropriate remedy. Relief authorized by the IDEA includes "reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate." Id. at 789 (quoting Woody, 865 F.3d at 314-15). However, such reimbursement "may not extend to periods when no FAPE violation occurred." Id. The right to private school reimbursement only exists "while the school district is noncompliant (or acknowledges its inability to comply) with its obligation to provide a free appropriate public education." Id. (citation omitted). Conversely, "compensatory awards, which may include tuition reimbursement, arc designed to provide services prospectively to compensate for a past deficient program. Such awards should place children in the position they would have been in but for the violation of the Act." Id. at 800 (citation omitted). Unlike the temporal requirement for the right to tuition reimbursement, a compensatory award only requires a corresponding finding of an IDEA violation. P.P. v. Nw. Indep. Sch. Dist., 839 Fed.Appx. 848, 857 (5th Cir. 2020).

O.W. interprets the Fifth Circuit's Opinion as "precluding tuition reimbursement for the 2015-2016 school year." Doc. #142 at 11. The Court agrees. The SEHO found that O.W.'s parents' unilateral decision to withdraw O.W. from SBISD and place him at Fusion precluded the SEHO from finding that SBISD deprived O.W. of a FAPE during the 2015-2016 school year. AR 97. This is consistent with the fact that the two FAPE denials found for the 2014-2015 school year cannot be characterized as extending to the subsequent year. First, SBISD's Child-Find obligation was satisfied when O.W. was referred for a special education evaluation. O.W. by Hannah W., 96\ F.3d at 793.

Second, though SBISD failed to implement O.W.'s IEP in the spring of 2015, it is undisputed that the IEP itself "was adequate in design." Id. at 795. Had O.W. enrolled in SBISD for the 2015-2016 school year, he would have moved from the elementary school he attended for fifth grade to a new middle school with new teachers and staff implementing the undisputedly "adequate" IEP. Id.; AR 1625, 99; c.f Florence County School District Four v. Carter by and through Carter, 510 U.S. 7, 12 (1993) (quotation omitted) (recognizing that the "IDEA'S grant of equitable authority empowers a court to order school authorities to reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act"). O.W. never enrolled in the SBISD middle school, precluding a finding that the middle school failed to implement his undisputedly "adequate" IEP for the 2015-2016 school year. As such, the Court finds that O.W. has failed to show by a preponderance of the evidence that FAPE violations would have continued beyond the 2014 -2015 school year or that SBISD was "noncompliant (or acknowledge[d] its inability to comply) with its obligation to provide a" FAPE for the 2015-2016 school year. See O.W. by Hannah W., 961 F.3d at 789 (citation omitted). As such, O.W. did not have a right to tuition reimbursement for the 2015-2016 school year.

However, O.W. was denied a FAPE during the 2014-2015 school year and is therefore eligible for a compensatory award to remedy the "deficient program." O. W. by Hannah W., 961 F.3d at 800. Unlike IEPs, compensatory awards "must do more" than provide some education benefit; "they must compensate'" for the educational deficit and "undo[] damage done by" the education agency's previous violation. Reid ex ret. Reid v. D.C., 401 F.3d 516, 525, 523 (D.C. Cir. 2005) (emphasis in original); D.A. v. Houston Indep. Sch. Dist., 716 F.Supp.2d 603, 613 (S.D. Tex. 2009), aff'd, 629 F.3d 450 (5th Cir. 2010). Courts use either a quantitative or qualitative approach for calculating compensatory education under the IDEA. See e.g. M.C. on Behalf of J. C. v. Cent. Reg'lSch. Dist., 81 F.3d 389, 397 (3d Cir. 1996) (holding that "a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem"); Reid ex rel. Reid, 401 F.3d at 524 25 (requiring "individualized" compensatory awards that "remedy ... an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student" and arc "reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"); Perry A. Zirkel, Ph.D., J.D., LL.M., The Two Competing Approaches for Calculating Compensatory Education Under the Idea, 339 Ed. Law Rep. 10, 11 (2017). Though the Fifth Circuit has not explicitly adopted one approach over the other, the Court applies the qualitative approach endorsed by Reid in light of the Fifth Circuit's reliance on the case in the Opinion. See O.W. by Hannah W., 961 F.3d at 800.

Here, SBISD's "obligations under the Act accrued" on October 8, 2014, when it violated the IDEA by failing to evaluate O.W. despite being "more than reasonably on notice of acts or behavior likely to indicate a disability." Woody, 865 F.3d at 322; O. W. by Hannah W., 961 F.3d at 794 (quotation omitted). But as was true in Reid, the previous award of compensatory education did not analyze "evidence regarding [O.W.'s] specific educational deficits resulting from his loss of FAPE" during the 2014 -2015 school year or, more importantly, "the specific compensatory measures needed to best correct those deficits." See Reid, 401 F.3d at 526. Rather, in the single paragraph addressing compensatory education, the SEHO stated

In the 2014-2015 school year, the District did not timely fulfill its Child Find obligation and did not fully implement Student's IEP, denying Student a FAPE. As such, Student is entitled to a school year of compensatory education. Some courts have held that compensatory education may be provided in the form of private placement. For example, the Eleventh Circuit Court of Appeals held that nothing in the IDEA precludes an award of compensatory education in the form of placement in a private school. Accordingly, the hearing officer finds that Student should be awarded one school year of compensatory education at Fusion, to be fulfilled in the 2016-2017 school year.
Doc. #11, Ex. 3 at 99. The SEHO's decision did not address what, if any, specific educational deficits resulted from O.W.'s denial of FAPE during the 2014-2015 school year, nor did it explain how one year of private school was necessary "to best correct those deficits." See id.; Reid, 401 F.3d at 526. The SEHO's use of "cookie-cutter formula" to award one year of compensatory education for one year of a FAPE denial without any other considerations was not consistent with the IDEA'S "aim [] to guarantee disabled students 'specialized education and related services designed to meet their unique needs." See Reid, 401 F.3d at 527, 524 (quoting 20 U.S.C. § 1400(d)(1)(A)) (emphasis in original). Contrary to SBISD's assertion, however, the absence of a "fact-specific inquiry" does not mean that O.W. is not entitled any relief. See id. at 526. Rather, O.W. is entitled to "an informed and reasonable exercise of discretion regarding what services[, if any, ] he needs to elevate him to the position he would have occupied absent the school district's failures." Id. at 527; O. W. by Hannah W., 961 F.3d at 800.

SBISD also argues that Fusion is not a reimbursable private placement under the IDEA. Doc. #141 at 12. To the extent such an argument is applicable for compensatory education awards, the Fifth Circuit's Opinion docs not address or alter the Court's conclusion that Fusion was an appropriate placement for O.W. See Doc. #90 at 18-19.

As such, the Court finds that the appropriate remedy is to remand this matter to the SEHO to determine in the first instance whether O.W. had "specific educational deficits resulting from his loss of FAPE" and if so, "the specific compensatory measures needed to best correct those deficits." See Reid, 401 F.3d at 526; Z.Z v. Bd. of Educ. of the City of Chicago, Dist. No. 299, 344 F.Supp.3d 988, 1002 (N.D. Ill. 2018) (noting that "remand is appropriate where, as here, the record does not supply the Court with enough information to determine how much compensatory education -if any-is necessary to restore the student to the position she would have occupied, had the school district provided her with a FAPE during the periods in which she was deprived of one") (cleaned up) (collecting cases); Seth B. ex rel. Donald B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 980 (5th Cir. 2016) (remanding to "the court below (or, upon further remand, the administrative hearing officer)" to determine an unaddressed "factually specific question"); Washington ex rel. J.W. v. Katy Indep. Sch. Dist., 447 F.Supp.3d 583, 594 (S.D. Tex. 2020) (remanding to the hearing officer to "make a fact-specific determination").

IV. Conclusion

In conclusion, the stay imposed by this Court is hereby LIFTED. The Court finds that SBISD's Child-Find violation deprived O.W. of educational benefits and therefore amounted to an actionable IDEA violation. SBISD's multiple failures to implement O.W.'s IEP similarly amounted to actionable IDEA violations. The Court REMANDS this matter to the SEHO to determine in the first instance whether SBISD's failure to provide a FAPE during these periods resulted in specific educational deficits for O.W., and if so, what specific compensatory measures were needed to best correct those deficits. Furthermore, the Court orders that this case be ADMINISTRATIVELY CLOSED. If either party decides to appeal the SEHO's determination, that party may move to reinstate the case on the court's active docket. A copy of this order shall be attached as an exhibit to any motion to reinstate.

In light of the Court's decision, SBISD's Motion to Lift Stay, Order Remedies, and Award Defendants Attorneys' Fees (Doc. #152) and SBISD's Motion to Dismiss (Doc. #154) are both DENIED as moot. Until a remedy has been awarded, any motion for attorney's fees is premature. See Gary G. v. El Paso Ind Sch. Dist., 632 F.3d 201, 207 (5th Cir. 2011) (internal quotations omitted) ("[T]o achieve prevailing party status, a party must attain both: a remedy that alters the legal relationship between the parties and fosters the IDEA'S purposes; and some judicial imprimatur on a material alteration of the legal relationship.").

It is so ORDERED.

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Spring Branch Indep. Sch. Dist. v. O.W., Civil Action 4:16-CV-2643 | Casetext Search + Citator

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ORDER ALFRED H. BENNETT UNITED STATES DISTRICT JUDGE Before the Court are the Fifth Circuit's August 7, 2020 Opinion (the "Opinion"), the Supplemental Briefing on Remedies filed by Plaintiff Spring Branch Independent School District ("SBISD") (Doc. #141), Defendant O.W's Response (Doc. #142), and SBISD's Reply (Doc. #142).

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Spring Branch Indep. Sch. Dist. v. O.W., 76 IDELR 234

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Spring Branch Indep. Sch. Dist. v. O.W., 76 IDELR 234

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ORDER

ALFRED H. BENNETT UNITED STATES DISTRICT JUDGE

Before the Court are the Fifth Circuit's August 7, 2020 Opinion (the "Opinion"), the Supplemental Briefing on Remedies filed by Plaintiff Spring Branch Independent School District ("SBISD") (Doc. #141), Defendant O.W's Response (Doc. #142), and SBISD's Reply (Doc. #142). Having reviewed the parties' arguments and applicable legal authority, the Court finds that SBISD denied O.W. a FAPE during the 2014-2015 school year and remands this case to the Special Education Hearing Officer ("SEHO") to determine an appropriate compensatory award.

I. Procedural History and Background

The Fifth Circuit remanded this case to address "the remedy question" in light of its Opinion, which affirmed in part and reversed in part this Court's March 28, 2018 Order. Spring Branch Indep. Sch. Dist. v. O.W. by Hannah W., 961 F.3d 781, 800 (5th Cir. 2020), cert, denied sub nom. Spring Branch Indep. Sch., Dist. v. O. W. By Next Friend Hannah W., 141 S.Ct. 1389, 209 L.Ed.2d 129 (2021); Doc. #90. This case stems from a dispute over the provision of a free appropriate public education ("FAPE") between O.W., a minor student, and SBISD, the school district O.W. enrolled in for fifth grade during the 2014-2015 school year. A detailed explanation of O.W.'s experience at SBISD can be found in the Court's March 2018 Order and the Fifth Circuit's August 2020 Opinion. Doc. #90; O. W. by Hannah W., 961 F.3d at 785. In relevant part, when O.W. began fifth grade, he immediately exhibited behavioral problems that eventually caused him to be removed from class on a daily basis. O. W. by Hannah W., 961 F.3d at 787. At an October 8, 2014 meeting, O.W.'s Section 504 Committee, which included O.W.'s parents and SBISD school officials, determined that O.W. was eligible for Section 504 accommodations and created an Individual Services and Accommodation Plan for him. AR 1838-40. After the accommodations proved ineffective, the Section 504 Committee met again on January 15, 2015. AR 1834. At this meeting, SBISD agreed to refer O.W. for a full individual and initial evaluation ("FIE" or "special education evaluation"). Id. The evaluation was completed on February 24, 2015 and concluded that O.W. was eligible for special education. AR 1609.

An Admission, Review, and Dismissal Committee ("ARDC") meeting was held on March 11, 2015, where an Individualized Education Program ("IEP") was developed for O.W. AR 1630. O.W.'s IEP went into effect on March 23, 2015. Id. Once the IEP was in place, SBISD employees used timeouts, physical restraints, and even police intervention to address O.W.'s behavioral problems. AR 2754, 52-56. O.W.'s difficulties continued and in May, O.W.'s school day was shortened to three hours per day. O. W. by Hannah W., 961 F.3d at 789. By the end of the school year, O.W. had "so regressed in his therapy that it was really difficult for him to . . . even go to school, " and O.W.'s parents ultimately withdrew him from school three days before the school year ended. Id.; AR 44, 2193-94.

When an SBISD teacher suggested that O.W. rccieve math tutoring over the summer, O.W's parents signed him up for tutoring at Fusion Academy, a private school. AR 71. O.W. "was happy and doing well at Fusion, " so his parents unilaterally decided to enroll him there for the 2015-2016 school year. AR 97. O.W.'s mother did not inform SBISD that he would not be re-enrolling for the 2015-2016 school year until August 14, 2015, less than 10 days before the school year began. O.W. by Hannah W., 961 F.3d at 789; AR 1522. O.W. attended Fusion Academy for the 2015-2016 school year. O. W. by Hannah W., 961 F.3d at 789.

O.W. also began the 2016-2017 school year at Fusion Academy but was removed from the school in February of 2017 and enrolled in an out-of-state residential school. O. W. by Hannah W., 961 F.3d at 789.

O.W.'s parents filed an administrative complaint against SBISD on October 28, 2015, approximately two months into the 2015-2016 school year. Id. The parties appeared for an administrative hearing on May 24, 2016. Id. The SEHO issued a decision in O.W.'s favor on August 5, 2016, finding that SBISD (1) violated its Child-Find duty by unreasonably delaying its referral of O.W. for a special education evaluation, (2) failed to implement O.W.'s IEP, and (3) denied O.W. a FAPE during the 2014-2015 school year. Id. Based on these findings, the SEHO found that O.W. was entitled to reimbursement for tuition and tutoring at Fusion for the 2015 -2016 school year and to a compensatory education award of tuition at Fusion for the 2016-2017 school year. Id. SBISD appealed that decision to this Court, who granted summary judgment for O.W. and affirmed the SEHO's findings and decision on March 29, 2018. Id. at 789-90. SBISD appealed this Court's decision to the Fifth Circuit. Id. at 790.

The Fifth Circuit affirmed that SBISD violated its Child-Find duty by unreasonably waiting 99 days from October 8, 2014 to January 15, 2015 to refer O.W. for a special education evaluation. Id. at 793. It also affirmed that SBISD failed to implement O.W.'s IEP by using timeouts and shortening O.W.'s school day to three hours per day. Id. at 797, 799. However, the Fifth Circuit reversed the SEHO and this Court's findings that the use of physical restraints, police interventions, and a delayed start of O.W.'s school day violated O.W.'s IEP. Id. at 797 -99. In light of these findings, the Fifth Circuit remanded this case to determine the appropriate remedies. Id. at 800. SBISD then filed a petition for writ of certiorari to appeal the Fifth Circuit's decision to the Supreme Court and the Court stayed this case pending a ruling on the petition. Doc. #148. The Supreme Court denied SBISD's petition. Doc. #150. Accordingly, the stay is hereby LIFTED and the parties' supplemental briefing on remedies is ripe for review.

IL Legal Standard

Under the Individuals with Disabilities Education Act ("IDEA"), a party aggrieved by a SEHO's findings and decision may bring suit in district court. 20 U.S.C. § 1415(i). A district court reviewing a SEHO's decision "shall grant such relief as [it] determines is appropriate." 20 U.S.C. § 1415(i)(2)(C)(iii). "The ordinary meaning of these words confers broad discretion on the court" and "equitable considerations arc relevant in fashioning relief." Sch. Comm, of Town of Burlington, Mass. v. Dep '1 of'Educ. of Mass., 471 U.S. 359, 369, 374 (1985). "The district court's review is virtually de novo" and "the court must ultimately reach an independent decision based on a preponderance of the evidence." Dallas Indep. Sch. Dist. v. Woody, 865 F.3d 303, 308-09 (5th Cir. 2017) (quotation omitted). However, "| a]n issue of law or fact decided on appeal may not be reexamined [] by the district court on remand." Lindquist v. City of Pasadena, Tex., 656 F.Supp.2d 662, 677 (S.D. Tex. 2009), aff'd, 669 F.3d 225 (5th Cir. 2012).

III. Analysis

a. Actionable Violations

The Fifth Circuit affirmed that SBISD violated its Child-Find duty when it unreasonably delayed referring O.W. for a special education evaluation "between October 8, 2014 and January 15, 2015, " totaling "99 days, or three months and seven days." O. W. by Hannah W., 961 F.3d at 793, 795. The Child-Find duty imposed by the IDEA requires school districts to "identify, locate, and evaluate students with suspected disabilities within a reasonable time after the school district is on notice of facts or behavior likely to indicate a disability." Id. at 791. Here, the Fifth Circuit found that by October 8, 2014, SBISD "was more than reasonably on notice of acts or behavior likely to indicate a disability before implementing § 504 accommodations, and it was, therefore, required to evaluate O.W." Id. at 794 (quotation omitted).

SBISD argues that this delay was a harmless procedural error because Texas "safe harbor" provisions give school districts 45 school days to evaluate a child once a parent consents to the evaluation and 30 calendar days to implement an IEP after the evaluation is completed, thus covering much of the 99-day delay. Doc. #141 at 4-5. But the 99-day delay the Fifth Circuit found to be unreasonable was SBISD's delay in referring O.W. for a special education evaluation-not a delay in evaluating O.W. once the referral was made or in implementing an IEP once the evaluation was completed. See O.W. by Hannah W., 961 F.3d at 795. Texas law offers no such "safe harbor" for referring a child for a special education evaluation and this Court is bound by the Fifth Circuit's determination that the 99-day delay in referring O.W. for a special education evaluation violated SBISD's Child-Find duty. See id.-, Lindquist, 656 F.Supp.2d at 677.

Thus, the only question is whether this violation is actionable. For a procedural violation of the IDEA, such as an unreasonable delay in complying with the Child-Find duty, a child is entitled to relief "only if the procedural inadequacies-(I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a free public education to the parents' child; or (III) caused a deprivation of education benefits." O. W. by Hannah W., 961 F.3d at 800 nl9 (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)). In this case, there are numerous indications that O.W. was deprived of education benefits during the 99-day delay. For example, despite being identified as gifted and talented, O.W. failed his math and science benchmarks. AR 1658. After a few months of participating in SPIRAL, SBISD's gift and talented program, O.W.'s parents pulled him from the program due to his poor grades, difficulties with transitions, and challenges on the bus ride to the program. AR 24, 1865. By January 2015, O.W. had failing grades, multiple in-school and out-of-school suspensions due to behavioral problems, and excessive absences due to his resistance to attending school. AR 38. As such, the Court finds that SBISD's Child-Find violation "caused a deprivation of education benefits" for O.W. and thus entitled O.W. to relief. 20 U.S.C. § 1415(f)(3)(E)(ii); O.W. by Hannah W, 961 F.3d at 800 nl9.

The Fifth Circuit also found that SBISD denied O.W. a FAPE by failing to implement his IEP. O. W. by Hannah W., 961 F.3d at 797, 799. The IDEA "requires states and local educational agencies receiving federal IDEA funds to make a FAPE available to children with certain disabilities." Id. at 795. "Schools provide students a FAPE based on IEPs, " which "must be both adequate in design and properly implemented." Id. If a school's failure to implement an IEP is "substantial or significant" and the child is denied an education benefit, that child has been denied a FAPE and the IDEA violation is actionable. Id. at 795 -96; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000). In this case, the Fifth Circuit found that SBISD's use of timeouts "was a significant or substantial departure from O.W.'s IEP" and that "[d]uring the time period [in which] this departure occurred, O.W. regressed both educationally and behaviorally." O. W. by Hannah W., 961 F.3d at 797. Additionally, the May 6, 2015 modification, "which approximately halved O.W.'s school day, was a substantial and significant deviation from the IEP which indisputably resulted in a loss of academic benefits" for O.W. Id. at 799.

As such, the Court finds that O.W. is entitled to an equitable remedy for SBISD's Child Find violation and failures to implement his IEP.

b. Remedy

In light of SBISD's actionable IDEA violations, the Court must determine the appropriate remedy. Relief authorized by the IDEA includes "reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate." Id. at 789 (quoting Woody, 865 F.3d at 314-15). However, such reimbursement "may not extend to periods when no FAPE violation occurred." Id. The right to private school reimbursement only exists "while the school district is noncompliant (or acknowledges its inability to comply) with its obligation to provide a free appropriate public education." Id. (citation omitted). Conversely, "compensatory awards, which may include tuition reimbursement, arc designed to provide services prospectively to compensate for a past deficient program. Such awards should place children in the position they would have been in but for the violation of the Act." Id. at 800 (citation omitted). Unlike the temporal requirement for the right to tuition reimbursement, a compensatory award only requires a corresponding finding of an IDEA violation. P.P. v. Nw. Indep. Sch. Dist., 839 Fed.Appx. 848, 857 (5th Cir. 2020).

O.W. interprets the Fifth Circuit's Opinion as "precluding tuition reimbursement for the 2015-2016 school year." Doc. #142 at 11. The Court agrees. The SEHO found that O.W.'s parents' unilateral decision to withdraw O.W. from SBISD and place him at Fusion precluded the SEHO from finding that SBISD deprived O.W. of a FAPE during the 2015-2016 school year. AR 97. This is consistent with the fact that the two FAPE denials found for the 2014-2015 school year cannot be characterized as extending to the subsequent year. First, SBISD's Child-Find obligation was satisfied when O.W. was referred for a special education evaluation. O.W. by Hannah W., 96\ F.3d at 793.

Second, though SBISD failed to implement O.W.'s IEP in the spring of 2015, it is undisputed that the IEP itself "was adequate in design." Id. at 795. Had O.W. enrolled in SBISD for the 2015-2016 school year, he would have moved from the elementary school he attended for fifth grade to a new middle school with new teachers and staff implementing the undisputedly "adequate" IEP. Id.; AR 1625, 99; c.f Florence County School District Four v. Carter by and through Carter, 510 U.S. 7, 12 (1993) (quotation omitted) (recognizing that the "IDEA'S grant of equitable authority empowers a court to order school authorities to reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act"). O.W. never enrolled in the SBISD middle school, precluding a finding that the middle school failed to implement his undisputedly "adequate" IEP for the 2015-2016 school year. As such, the Court finds that O.W. has failed to show by a preponderance of the evidence that FAPE violations would have continued beyond the 2014 -2015 school year or that SBISD was "noncompliant (or acknowledge[d] its inability to comply) with its obligation to provide a" FAPE for the 2015-2016 school year. See O.W. by Hannah W., 961 F.3d at 789 (citation omitted). As such, O.W. did not have a right to tuition reimbursement for the 2015-2016 school year.

However, O.W. was denied a FAPE during the 2014-2015 school year and is therefore eligible for a compensatory award to remedy the "deficient program." O. W. by Hannah W., 961 F.3d at 800. Unlike IEPs, compensatory awards "must do more" than provide some education benefit; "they must compensate'" for the educational deficit and "undo[] damage done by" the education agency's previous violation. Reid ex ret. Reid v. D.C., 401 F.3d 516, 525, 523 (D.C. Cir. 2005) (emphasis in original); D.A. v. Houston Indep. Sch. Dist., 716 F.Supp.2d 603, 613 (S.D. Tex. 2009), aff'd, 629 F.3d 450 (5th Cir. 2010). Courts use either a quantitative or qualitative approach for calculating compensatory education under the IDEA. See e.g. M.C. on Behalf of J. C. v. Cent. Reg'lSch. Dist., 81 F.3d 389, 397 (3d Cir. 1996) (holding that "a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem"); Reid ex rel. Reid, 401 F.3d at 524 25 (requiring "individualized" compensatory awards that "remedy ... an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student" and arc "reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"); Perry A. Zirkel, Ph.D., J.D., LL.M., The Two Competing Approaches for Calculating Compensatory Education Under the Idea, 339 Ed. Law Rep. 10, 11 (2017). Though the Fifth Circuit has not explicitly adopted one approach over the other, the Court applies the qualitative approach endorsed by Reid in light of the Fifth Circuit's reliance on the case in the Opinion. See O.W. by Hannah W., 961 F.3d at 800.

Here, SBISD's "obligations under the Act accrued" on October 8, 2014, when it violated the IDEA by failing to evaluate O.W. despite being "more than reasonably on notice of acts or behavior likely to indicate a disability." Woody, 865 F.3d at 322; O. W. by Hannah W., 961 F.3d at 794 (quotation omitted). But as was true in Reid, the previous award of compensatory education did not analyze "evidence regarding [O.W.'s] specific educational deficits resulting from his loss of FAPE" during the 2014 -2015 school year or, more importantly, "the specific compensatory measures needed to best correct those deficits." See Reid, 401 F.3d at 526. Rather, in the single paragraph addressing compensatory education, the SEHO stated

In the 2014-2015 school year, the District did not timely fulfill its Child Find obligation and did not fully implement Student's IEP, denying Student a FAPE. As such, Student is entitled to a school year of compensatory education. Some courts have held that compensatory education may be provided in the form of private placement. For example, the Eleventh Circuit Court of Appeals held that nothing in the IDEA precludes an award of compensatory education in the form of placement in a private school. Accordingly, the hearing officer finds that Student should be awarded one school year of compensatory education at Fusion, to be fulfilled in the 2016-2017 school year.
Doc. #11, Ex. 3 at 99. The SEHO's decision did not address what, if any, specific educational deficits resulted from O.W.'s denial of FAPE during the 2014-2015 school year, nor did it explain how one year of private school was necessary "to best correct those deficits." See id.; Reid, 401 F.3d at 526. The SEHO's use of "cookie-cutter formula" to award one year of compensatory education for one year of a FAPE denial without any other considerations was not consistent with the IDEA'S "aim [] to guarantee disabled students 'specialized education and related services designed to meet their unique needs." See Reid, 401 F.3d at 527, 524 (quoting 20 U.S.C. § 1400(d)(1)(A)) (emphasis in original). Contrary to SBISD's assertion, however, the absence of a "fact-specific inquiry" does not mean that O.W. is not entitled any relief. See id. at 526. Rather, O.W. is entitled to "an informed and reasonable exercise of discretion regarding what services[, if any, ] he needs to elevate him to the position he would have occupied absent the school district's failures." Id. at 527; O. W. by Hannah W., 961 F.3d at 800.

SBISD also argues that Fusion is not a reimbursable private placement under the IDEA. Doc. #141 at 12. To the extent such an argument is applicable for compensatory education awards, the Fifth Circuit's Opinion docs not address or alter the Court's conclusion that Fusion was an appropriate placement for O.W. See Doc. #90 at 18-19.

As such, the Court finds that the appropriate remedy is to remand this matter to the SEHO to determine in the first instance whether O.W. had "specific educational deficits resulting from his loss of FAPE" and if so, "the specific compensatory measures needed to best correct those deficits." See Reid, 401 F.3d at 526; Z.Z v. Bd. of Educ. of the City of Chicago, Dist. No. 299, 344 F.Supp.3d 988, 1002 (N.D. Ill. 2018) (noting that "remand is appropriate where, as here, the record does not supply the Court with enough information to determine how much compensatory education -if any-is necessary to restore the student to the position she would have occupied, had the school district provided her with a FAPE during the periods in which she was deprived of one") (cleaned up) (collecting cases); Seth B. ex rel. Donald B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 980 (5th Cir. 2016) (remanding to "the court below (or, upon further remand, the administrative hearing officer)" to determine an unaddressed "factually specific question"); Washington ex rel. J.W. v. Katy Indep. Sch. Dist., 447 F.Supp.3d 583, 594 (S.D. Tex. 2020) (remanding to the hearing officer to "make a fact-specific determination").

IV. Conclusion

In conclusion, the stay imposed by this Court is hereby LIFTED. The Court finds that SBISD's Child-Find violation deprived O.W. of educational benefits and therefore amounted to an actionable IDEA violation. SBISD's multiple failures to implement O.W.'s IEP similarly amounted to actionable IDEA violations. The Court REMANDS this matter to the SEHO to determine in the first instance whether SBISD's failure to provide a FAPE during these periods resulted in specific educational deficits for O.W., and if so, what specific compensatory measures were needed to best correct those deficits. Furthermore, the Court orders that this case be ADMINISTRATIVELY CLOSED. If either party decides to appeal the SEHO's determination, that party may move to reinstate the case on the court's active docket. A copy of this order shall be attached as an exhibit to any motion to reinstate.

In light of the Court's decision, SBISD's Motion to Lift Stay, Order Remedies, and Award Defendants Attorneys' Fees (Doc. #152) and SBISD's Motion to Dismiss (Doc. #154) are both DENIED as moot. Until a remedy has been awarded, any motion for attorney's fees is premature. See Gary G. v. El Paso Ind Sch. Dist., 632 F.3d 201, 207 (5th Cir. 2011) (internal quotations omitted) ("[T]o achieve prevailing party status, a party must attain both: a remedy that alters the legal relationship between the parties and fosters the IDEA'S purposes; and some judicial imprimatur on a material alteration of the legal relationship.").

It is so ORDERED.

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Spring Branch Indep. Sch. Dist. v. O.W., Civil Action 4:16-CV-2643 | Casetext Search + Citator

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ORDER ALFRED H. BENNETT UNITED STATES DISTRICT JUDGE Before the Court are the Fifth Circuit's August 7, 2020 Opinion (the "Opinion"), the Supplemental Briefing on Remedies filed by Plaintiff Spring Branch Independent School District ("SBISD") (Doc. #141), Defendant O.W's Response (Doc. #142), and SBISD's Reply (Doc. #142).

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(Khrys King)

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The following chronology compiled by the Texas Education Agency offers an overview of landmark legislation and court cases impacting the education of English language learners.

Federal Policy: Timeline

1920s-1960s - English immersion or "sink-or-swim" policies are the dominant method of instruction of language minority students. Few or no remedial services are available, and students are generally held at the same grade level until enough English is mastered to advance in subject areas.

1963 - Success of a two-way bilingual program for Cuban refugee children in Dade County, Florida, inspires the implementation of similar programs elsewhere.

1964 - Civil Rights Act: Title VI prohibits discrimination on the basis of race, color, or national origin in the operation of all federally assisted programs.

The Bilingual Education Act, Title VII

1968 - The Bilingual Education Act, Title VII of the Elementary and Secondary Education Act of 1968: Establishes federal policy for bilingual education for economically disadvantaged language minority students, allocates funds for innovative programs, and recognizes the unique educational disadvantages faced by non-English speaking students.

1978 - Amendments to Title VII emphasize the strictly transitional nature of native language instruction, expand eligibility to students who are limited English proficient (LEP), and permit enrollment of English-speaking students in bilingual programs.

1982 - Amendments to Title VII allow for some native language maintenance, provide program funding for LEP students with special needs, support family English literacy programs, and emphasize importance of teacher training.

1988 - Amendments to Title VII include increased funding to state education agencies, expanded funding for "special alternative" programs where only English is used, established a three-year limit on participation in most Title VII, and created fellowship programs for professional training.

1994 - Comprehensive educational reforms entail reconfiguration of Title VII programs. New provisions reinforce professional development programs, increase attention to language maintenance and foreign language instruction, improve research and evaluation at state and local level, supply additional funds for immigrant education, and allow participation of some private school students. Texas Education Agency Bilingual/ESL Unit 2011-2012 11

No Child Left Behind

2001 - No Child Left Behind Act of 2001 (NCLB): The reauthorization of the Elementary and Secondary Education Act of 1965 appropriates funds to states to improve the education of limited English proficient students by assisting children to learn English and meet challenging state academic content and student academic achievement standards. Legislation for limited English proficient students is found under Title III of NCLB.

Court Rulings

Supreme Court

This suit by Chinese parents in San Francisco leads to the ruling that identical education does not constitute equal education under Title VI of the Civil Rights Act of 1964. School districts must take affirmative steps to overcome educational barriers faced by non-English speakers. This ruling established that the Office for Civil Rights, under the former Department of Health, Education, and Welfare, has the authority to establish regulations for Title VI enforcement.

Under the Fourteenth Amendment of the U.S. Constitution, the state does not have the right to deny a free public education to undocumented immigrant children.

Federal Court

1971 - United States of America v. State of Texas, et al.

This desegregation case centered on the issue of discrimination and whether the San Felipe and Del Rio school districts were providing Mexican American students an equal educational opportunity. On August 6, 1971, Judge William Wayne Justice ordered the consolidation of the two districts. As a result of the lawsuit, the federal court came down with a court order, Civil Action 5281, which eliminates discrimination on grounds of race, color, or national origin in Texas public and charter schools.

The 10th Circuit Court of Appeals found that Spanish surnamed students' achievement levels were below those of their Anglo counterparts. The court ordered Portales Municipal Schools to implement a bilingual/bicultural curriculum, revise procedures for assessing achievement, and hire bilingual school personnel.

1978 - Cintron v. Brentwood

The Federal District Court for the Eastern District of New York rejected the Brentwood School District's proposed bilingual program on the grounds that it would violate "Lau Guidelines" by unnecessarily segregating Spanish-speaking students from their English-speaking peers in music and art. The court also objected to the program's failure to provide for exiting students whose English language proficiency was sufficient for them to understand mainstream English instruction.

The Federal District Court for the Eastern District of New York found that the Pastchogue-Medford School District's transitional bilingual program was basically a course in English and that students were denied an equal educational opportunity by not receiving academic instruction in Spanish. The court wrote: "A denial of educational opportunities to a child in the first years of schooling is not justified by demonstrating that the educational program employed will teach the child English sooner than a program comprised of more extensive Spanish instruction."

1981 - Castañeda v. Pickard

Reputed to be the most significant court decision affecting language minority students after Lau. In responding to the plaintiffs' claim that Raymondville, Texas Independent School District's language remediation programs violated the Equal Educational Opportunities Act (EEOA) of 1974, the Fifth Circuit Court of Appeals formulated a set of basic standards to determine school district compliance with EEOA.

The "Castañeda test" includes the following criteria:

1. Theory: The school must pursue a program based on an educational theory recognized as sound or, at least, as a legitimate experimental strategy

2. Practice: The school must actually implement the program with instructional practices, resources, and personnel necessary to transfer theory to reality

3. Results: The school must not persist in a program that fails to produce results.

1981 - United States v. State of Texas et al., January 12, 1981
The U.S. District Court for the eastern district of Texas, Tyler division, instructs TEA to phase in mandatory bilingual education in grades K-12. This decision outlined specific requirements including: three year monitoring cycles, identification of LEP students, and a language survey for students entering school. It also established the need for exit criteria.

1982 - United States v. State of Texas et al., July 12, 1982

The U.S. Court of Appeals, Fifth Circuit reverses the previous judgment of U.S. v. State of Texas et al., January 12, 1981 because of state legislation enacted in 1981.

1983 - Keyes v. School District #1

A U.S. District Court found that a Denver public school district had failed to adequately implement a plan for language minority students, which is the second element of the "Castañeda Test."

The Seventh Circuit Court of Appeals ruled that State Education Agencies are also required under EEOA to ensure that language minority student's educational needs are met.

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A Chronology of Federal Law and Policy Impacting Language Minority Students

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The following chronology compiled by the Texas Education Agency offers an overview of landmark legislation and court cases impacting the education of English language learners. 1920s-1960s - English immersion or "sink-or-swim" policies are the dominant method of instruction of language minority students.

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State Legislation

The federal government does not recognize an official language, but roughly 30 states have passed laws designating English as the official language. A few of these require their public schools to teach only in English. As a result, ELs are instructed through one of a variety of education models.

Bilingual Mandates

Several states have begun to require bilingual instruction in their public schools. While these requirements vary greatly from state to state, in five states (Connecticut, Illinois, New Jersey, New York, and Texas) require that districts with more than 20 or more ELs in the same grade level from the same language background provide bilingual education. Dual language programs can meet this requirement.

Alaska

Alaska’s education statute requires local education agencies to provide a “bilingual-bicultural education program” for schools that enroll at least eight ELs. It also requires local school boards to create a local Native language curriculum advisory board for each district where a majority of students are Alaska Natives. The advisory board has the power to recommend schools to create a Native language education curriculum for enrolled K-12 students, which should include the Native languages traditionally spoken in the community.

Connecticut

Connecticut has a Bilingual Education Statute that requires school districts to provide bilingual education programs to ELs in grades K–12, in schools where there are 20 or more ELs that speak the same home language. The original law was passed in 1977 but was changed in 1999 to require schools to teach ELs in English for more than half of the school day by the end of their first year in the bilingual program, and to move ELs to regular classes after three school years (30 months). For high school students who are eligible for EL services but who will graduate within 30 months, the district must offer students participation in an English as a Second Language (ESL) program.

Illinois

In 2010, Illinois passed legislation that requires public schools to mandate bilingual education programs for preschool students ages 3–5, making it the first state to extend a bilingual education mandate to the preschool years. Effective July 2014, Illinois’ Title 23, Administrative Code Part 228 requires school districts with preschools that serve 20 or more ELs who speak the same home language, to create a transitional bilingual education (TBE) program for every foreign language spoken. In schools with fewer than 20 ELs, districts must offer students with instruction or services in their home language (such as ESL services).The same requirements have been in place since 1973 for students in grades K–12, when Illinois first passed legislation mandating transitional bilingual education for ELs.

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New York State Commissioner's Regulation 154

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New York State Commissioner's Regulation 154

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NYS Commissioners Regulation Part 154 that outlines standards for educational services to ELLs in New York State.

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According to Representative Joe Gallegos, "In Oregon, 34 school districts have a student body population composed of at least 15% English Language Learners (ELL). In many of these school districts, there is a significant achievement gap between English-speaking students and ELL students. Under current Oregon law, school districts receive a 0.5 additional weight per ELL student. However, other than the additional funding weight, little consistency in accountability, curriculum, benchmarks and programmatic standards exist among ELL programs. HB 3499 (-2) addresses three main capacities of ELL policy: Uniform coding & budget transparency, a system of supports & interventions, and long-term strategic development."

House Bill: https://www.oregon.gov/ode/studentwills-and-family/equity/EngLearners/Documents/ELHouseBill3499.pdf

The benchmarks that will be set can dramatically impact districts, schools, classrooms, teachers and students. It is important to be informed, to speak into best practices for English language learners and advocate for appropriate steps to improve education in Oregon.
Who was involved in the new EL Advisory Group?
The Oregon Department of Education's website states that, "Having a diverse group of community and district stakeholders is an important part of the Oregon Department of Education's (ODE) decision-making process and effective implementation of the EL Strategic State Plan. This new group is comprised of district and school administration, teachers, students, parents, and community members." (2017)
To represent Oregon teachers, ORTESOL Refugee SIG Chair, Susan Kaller was a representative in this important group.
Since joining the ORTESOL board in 2016 she began to attend some state meetings and was asked to continue her work with ODE (Oregon Department of Education) on the EL Strategic Plan. The EL Advisory Group prepared a presentation for the COSA (Confederation of Oregon School Administrators) EL Alliance conference on February 8th, 2018. Susan attended the conference March 7th-9th in Eugene and presented on March 8th.

Kaller reflected, "The EL Alliance conference was extremely well attended with many sessions, so much so it will likely require a different venue next year. For K-12 ESL teachers and administrators, it has become the big "go to" conference in Oregon. The focus of the conference was on SPED/ESL coordination and newcomers in the classroom. There were 13 sessions per breakout covering everything from instructional strategies, program set up, licensure, professional development, recent legislation and regulation, trauma, understanding and accessing information ODE makes available, and research. Jeff Zwiers of Stanford gave the keynote on 'authentic communication.'"

Participating in and advocating for English language learners has been a significant part of my role on the board explained Kaller. Throughout the process, the group has made an effort gather feedback from as many as possible in state board of education for approval.
What can you do to advocate for English language learners and teachers?
Educate yourself and clarify the issue.

2) Attend a public meeting.

3) Continue to understand rights and policies for ELLs.

4) Identify who your allies are.

5) Organize and educate others.

6) Identify your outlets for change. Consider asking the following questions:

a) What can I do in my classroom?

b) What can I do in my school?

c) What can I do in my district?

d) What can I do in my community?

e) How can I collaborate with other non-school-based communities?

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According to Representative Joe Gallegos, "In Oregon, 34 school districts have a student body population composed of at least 15% English Language Learners (ELL). In many of these school districts, there is a significant achievement gap between English-speaking students and ELL students. Under current Oregon law, school districts receive a 0.5 additional weight per ELL student.

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Legal Provisions Affecting Bilingual English Language Learners (B-ELs )With and Without Special Needs

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Legal Provisions Affecting Bilingual English Language Learners (B-ELs )With and Without Special Needs

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Even though Brown v board of education dealt with allowing Linda Brown a fair education in the 1950's, I feel today we need to be cognizant of allowing our ELL students a quality education. We need to make sure they are receiving opportunities to further their education as well.

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What Legal Obligations Do Schools Have To English Language Learners (ELLs)?

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What Legal Obligations Do Schools Have To English Language Learners (ELLs)?

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Q: What legal obligations do schools have to English language learners (ELLs)? | NCELA

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In Plyler vs Doe, even a undocumented student is entitled to a free public education. The Privacy Act of 1974 said you can request a Social Security number but it is understood that you have to tell the parent immediately that it is not required but only requested for school admission. A student will not be denied education due to not having a social security number.

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Plyler v. Doe

Brown v. Board of Education

Plyler v. Doe

Summary of a Fourteenth Amendment Landmark case:
Plyler v. Doe 457 U.S. 202 (1982)

Facts

In 1975, the Texas Legislature revised its education laws to deny enrollment in their public schools to and withhold any state funds for the education of children who were not "legally admitted" to the country.

A class action was filed on behalf of certain school-age children of Mexican origin residing in Texas who could not establish that they had been legally admitted into the United States. The class filed a motion for permanent injunctive relief, asking the district court to prevent defendants from denying a free public education to members of the class.

In deciding the motion, the district court found that neither the revised law nor its implementation had "either the purpose or effect of keeping illegal aliens out of the State of Texas." The district court also found that the increase in enrollment in Texas public schools was primarily attributable to the admission of children who were legal residents. Finally, the district court found that while barring undocumented children would save money, it would not necessarily improve the quality of the education. The court then concluded that illegal aliens were entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment and that the Texas legislation violated it.

The Court of Appeals affirmed, and the Supreme Court agreed to hear the case.

Issue

Whether denying undocumented children of illegal immigrants the right to attend public school constitutes discrimination based on alienage that violates the Equal Protection Clause of the Fourteenth Amendment?

Ruling

Yes.

Reasoning

(Brennan, J.) By a 5-4 vote, the Court concluded that the Texas legislation violated the Equal Protection Clause. The Court explained that "education has a fundamental role in maintaining the fabric of our society" and "provides the basic tools by which individuals might lead economically productive lives to the benefit of us all." Further, while persuasive arguments support the view that a state may withhold benefits from people whose presence within the country is a result of unlawful conduct, the children of such illegal entrants "can affect neither their parents' conduct nor their own status," and "legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice."

While the state has a legitimate interest in protecting itself from an influx of illegal immigrants, there was no evidence to suggest that any immigrants came to the country to avail themselves of a free education. Similarly, while the state has an interest in removing burdens on the state's ability to provide high-quality public education, there was no evidence that the exclusion of undocumented children was likely to improve the overall quality of education in Texas.

Accordingly, the majority affirmed the lower court's ruling.

Concurrence

(Marshall, J.) Justice Marshall emphasized that he believed an individual's interest in education is fundamental and that this belief "is amply supported by the unique status accorded public education by our society, and by the close relationship between education and some of our most basic constitutional values."

(Blackmun, J.) Justice Blackmun noted that "when a state provides an education to some and denies it to others, it immediately and inevitably creates class distinctions of a type fundamentally inconsistent with" the purposes of the Equal Protection Clause because "an uneducated child is denied even the opportunity to achieve." When those children are members of an identifiable class, the state has created a separable and identifiable underclass.

(Powell, J.) Justice Powell emphasized the unique character of the case. He noted that under the Texas law, a group of children is deprived of the opportunity for education because of a violation of law by their parents. "A legislative classification that threatens the creation of an underclass of future citizens and residents cannot be reconciled with one of the fundamental purposes of the Fourteenth Amendment."

Dissent

(Burger, C.J.) The dissent asserted that any issues concerning whether or not to admit children of undocumented immigrants into public schools should be dealt with by the legislature as opposed to the judiciary. The dissenting Justices agreed that "it would be folly-and wrong-to tolerate creation of a segment of society made up of illiterate persons." However, they concluded that such a decision should be made by the political branches because it is a policy issue inappropriate for the Court to undertake.

Brown v. Board of Education

Summary of a Fourteenth Amendment Landmark case:
Brown v. Board of Education 347 U.S. 483 (1954)

Facts

In cases brought in Kansas, South Carolina, Virginia, and Delaware, African American children sought admission to the public schools in their community on a nonsegregated basis. In each state, they were denied admissions to schools attended by white children under laws requiring or permitting segregation on the basis of race. In each of the cases other than the Delaware case, federal courts denied relief to plaintiffs on the "separate but equal" doctrine set forth by the Court in Plessy v. Ferguson. Under that doctrine, treatment is equal when races are provided substantially equal facilities, even if they are separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that plaintiffs be admitted to the white schools because of their superiority to the other schools. The plaintiffs appealed to the Supreme Court, arguing that segregated schools are not equal and cannot be made equal.

Issue

Whether requiring or permitting racial segregation in public schools violates the Equal Protection Clause of the Fourteenth Amendment?

Ruling

Yes.

Reasoning

(Warren, J.) The Court concluded that separate educational facilities are inherently unequal. The Court noted that education is perhaps the most important function of state and local governments and the foundation of good citizenship. Education includes intangible considerations, such as the ability to study, to engage in discussions with other students, and in general, to learn a profession. To separate students on the basis of race creates "a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." Therefore, the Court concluded that the doctrine of "separate but equal" has no place in public education.

Cooper v. Aaron

Summary of a Fourteenth Amendment Landmark case:
Cooper v. Aaron 358 U.S. 1 (1978)

Facts

Following its decision in Brown v. Board of Education, the Court formulated a decree to affect the decision. Specifically, the Court required that the defendants "make a prompt and reasonable start toward full compliance" with the Court's order and to end segregation in the public schools "with all deliberate speed."

Three days after the Court's opinion in Brown, the Little Rock District School Board in Little Rock, Arkansas, began preparing a comprehensive plan for the complete desegregation of the school system.

At the same time, however, various state authorities, including the state legislature and governor, were actively pursuing means to perpetuate racial segregation in the Arkansas public school system. For example, in 1957, the School Board and the Superintendent of Schools continued with preparations to carry out the first stage of the desegregation program with the admission of nine African American students to Central High School. The day before the students were to enter the school, the Governor of Arkansas dispatched units of the Arkansas National Guard to the school and placed it "off limits" to African American students. When the nine African American students attempted to enter the high school two days later, the Arkansas National Guard forcibly prevented them from entering the building. The Arkansas National Guard continued to do so every day for the next three weeks.

The federal government, through the United States Attorney and the Attorney General, filed a motion in federal court to stop the governor and the Arkansas National Guard from interfering with the nine students' attendance. A federal district court granted the motion, and the Arkansas National Guard was withdrawn from the school. Subsequently, the President of the United States dispatched federal troops to Central High School to ensure that the nine students would be admitted safely to school.

Because of the hostility, caused in large part by the acts of state authorities, the School Board and Superintendent sought postponement of the desegregation plan for two-and-a-half years. The district court granted their motion. The Court of Appeals reversed.

Issue

Whether the Court should uphold a suspension of a desegregation plan until state laws and efforts to challenge Brown v. Board of Education have been challenged and tested in the courts?

Ruling

No

Reasoning

(Chief Justice Warren) The Court unanimously held that law and order cannot be preserved by depriving African American children of their constitutional rights. "The constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, not nullified indirectly by them through evasive schemes for segregation." Because the Supreme Court has the ultimate authority in determining what the Constitution means and because it concluded that segregation in public schools violated the Equal Protection Clause, no state authority or state law may require or allow for racial segregation in public education. Accordingly, the desegregation plan could not be suspended.

Concurrence

(Frankfurter, J.) Justice Frankfurter noted that while the State of Arkansas was not a formal party in the proceedings, it was legally and morally a party before the Court as a result of its use of armed force to thwart the law. Violent resistance to law, even if used by a state, cannot be used as a legal reason for the law's suspension. As such, Justice Frankfurter found that Arkansas' actions were "subversive not only of our constitutional system but of the presuppositions of democracy." He also noted that it is the responsibility of those who exercise power in a democratic government to help form the public's understanding and support the supreme law of the land, the Constitution.

What is Your Opinion?

1. Why might it be important for courts to decide cases that tend to have an adverse impact on children?

2. Why should the government have a role in education?

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Plyler v. Doe Brown v. Board of Education Summary of a Fourteenth Amendment Landmark case: Plyler v. Doe 457 U.S. 202 (1982) In 1975, the Texas Legislature revised its education laws to deny enrollment in their public schools to and withhold any state funds for the education of children who were not "legally admitted" to the country.

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Oregon Department of Education : Guidance and Research for Title III : Title III English Learners : State of Oregon

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Title III English Learners - Guidance and Research

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Independent School District v. Salvatierra, Alvarez v. Lemon Grove, and Méndez v. Westminster School District

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Independent School District v. Salvatierra, Alvarez v. Lemon Grove, and Méndez v. Westminster School District

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A few lesser known lower-level cases concerning the segregation of Hispanic student predate Brown. In Independent School District v. Salvatierra (1930), Mexican American parents in the small border town of Rio, Texas, brought suit against the school district over segregation. The court sided with the school district that argued the segregation was necessary to teach the students English. This argument did not hold, however, for two similar cases in California: Alvarez v. Lemon Grove (1931) and Méndez v. Westminster School District (1947). The judge in Alvarez noted that segregation was not beneficial for the students' English language development (Trujillo, 2008), and the success of the Méndez case helped set the stage for Brown.

Like Plessy, Brown v. Board of Education focused on the segregation of African American students. But by ruling that states are responsible for providing "equal educational opportunities" for all students, Brown made bilingual education for ELLs more feasible

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In this excerpt from Foundations for Teaching English Language Learners: Research, Theory, Policy, and Practice ( Caslon, 2010), Wayne Wright summarizes the landmark U.S. court cases that have had significant implications for ELLs. In particular, Wright focuses on cases relating to segregation, the right of communities to teach their native languages to children, and the linguistic and education needs of ELLs.

Wright also provides an overview of the No Child Left Behind legislation in No Child Left Behind and ELLs.

Note: For information about Plyler vs. Doe, which gives all children a right to a free, public education regardless of immigration status, see this related resource section.

Important Court Decisions and Legislation

Historical reluctance by many states throughout the country to provide equitable educational opportunities to ELL and other minority students and controversies over the use of languages other than English in public schools have sparked a large number of lawsuits that address these issues. The court decisions that grew out of these lawsuits have led to legislative changes that have helped to shape the policy climate of today. In this section we briefly review some of these cases and related legislation.

First, however, we must consider the 14th Amendment to the U.S. Constitution. This amendment, ratified in 1868 after the Civil War, declares in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Many of the cases discussed in this section are based on the due process and the equal protection clauses of the 14th Amendment.

Addressing Segregation

Plessy v. Ferguson and Brown v. Board of Education

In 1896 the U.S. Supreme Court issued its now infamous decision in Plessy v. Ferguson that "separate but equal" public facilities, including school systems, are constitutional. Although the decision was related to the segregation of African American students, in many parts of the country Native American, Asian, and Hispanic students were also routinely segregated. The Supreme Court unanimously reversed Plessy v. Ferguson 58 years later in 1954 in Brown v. Board of Education.

Independent School District v. Salvatierra, Alvarez v. Lemon Grove, and Méndez v. Westminster School District

A few lesser known lower-level cases concerning the segregation of Hispanic student predate Brown. In Independent School District v. Salvatierra (1930), Mexican American parents in the small border town of Rio, Texas, brought suit against the school district over segregation. The court sided with the school district that argued the segregation was necessary to teach the students English. This argument did not hold, however, for two similar cases in California: Alvarez v. Lemon Grove (1931) and Méndez v. Westminster School District (1947). The judge in Alvarez noted that segregation was not beneficial for the students' English language development (Trujillo, 2008), and the success of the Méndez case helped set the stage for Brown.

Like Plessy, Brown v. Board of Education focused on the segregation of African American students. But by ruling that states are responsible for providing "equal educational opportunities" for all students, Brown made bilingual education for ELLs more feasible.

Guey Heung Lee v. Johnson and Johnson v. San Francisco Unified School District

In some instances, however, desegregation efforts made it more difficult. In San Francisco, for example, Chinese Americans fought a desegregation order that would force students out of neighborhood schools that provided bilingual English-Chinese programs for newcomer Chinese ELL students. The Chinese community took the case to court in 1971 in G uey Heung Lee v. Johnson, and it was appealed to the 9th Circuit Court of Appeals in Johnson v. San Francisco Unified School District. In 1974, the court ruled against the Chinese community, declaring simply Brown applies to races.

Despite significant progress in the half century since Brown, the practice of segregation in public schools remains widespread (Kozol, 2005). School districts that provide bilingual education and ESL programs constantly struggle to balance the need for separate classes where the unique needs of ELL students can be addressed against the need to avoid prolonged segregation of ELLs from other students.

The Right of Communities to Teach Their Native Languages to Their Children

Meyers v. Nebraska

Three important cases have addressed the issue of private language-schooling for language-minority students. In the early 1900s, German communities typically ran their own private schools where students received instruction in both German and English. Then, in 1919, Nebraska passed the Siman Act, which made it illegal for any school, public or private, to provide any foreign language instruction to students below the 8th grade. Roman Catholic and Lutheran German parochial schools joined together to file suit against the act under the 14th Amendment.

The state court ruled that the act could not prevent schools from providing German language instruction outside of the hours of regular school study. In response, the parochial schools taught German during an extended recess period. Language restrictionist policymakers sought to close the loopholes in the law and fined Robert Meyers $25 fine for teaching Bible stories to 10-year-old children in German. The case, Meyers v. Nebraska (1923), went to Supreme Court, which consolidated this case with similar cases from Ohio and Idaho.

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.

Meyers is an important case because it makes clear that the 14th Amendment provides protection for language minorities. As the legal expert Sandra Del Valle (2003) points out, however, this decision did not give language minorities additional rights and privileges but simply ensured that "laws not be used as a rationale for denying them the same rights accorded others" (p. 39). Furthermore, because the focus of this case was on parochial schools, the decision was not an endorsement of bilingual education.

Farrington v. Tokushige

In a similar case handed down in Hawaii in 1927, Farrington v. Tokushige, the court offered further protections of after-school community language programs after attempts by education authorities to put restrictions on Japanese and Chinese heritage language programs.

In a similar case handed down in Hawaii in 1927, Farrington v. Tokushige, the court offered further protections of after-school community language programs after attempts by education authorities to put restrictions on Japanese and Chinese heritage language programs.

Despite these victories, as Del Valle observes, these cases were essentially about parents' rights rather than language rights. In addition, within the court's decision there were still signs of negative attitudes toward the "foreign population." Indeed, Hawaii tried yet again to limit private foreign language instruction. When the Chinese communities after World War II sought to restart their private language schools, the state passed the "Act Regulating the Teaching of Foreign Languages to Children." Part of the state's rationale was the need to "protect children from the harm of learning a foreign language" (Del Valle, 2003, p. 44).

Stainback v. Mo Hock Ke Kok Po

In Stainback v. Mo Hock Ke Kok Po (1947), the state court struck down the statute, rejecting the state's claim and arguing that, at least for "the brightest" students, study of a foreign language can be beneficial. The case was decided on the basis of Farrington and, once again, had more to do with parents' rights in directing the education of their children than with language rights.

Xenophobia toward German and Japanese Americans during World War I and World War II succeeded where attempts at language restrictive legislation failed. When Germany and later Japan became war enemies of the United States, the number of U.S. schools that provided instruction in these languages dropped dramatically, largely because of fears by members of these communities that such instruction would lead others to question their loyalty to the United States (Tamura, 1993; Wiley, 1998).

Nevertheless, the legacy of these cases, despite agreement in the courts about the need for states to Americanize minorities and their right to control the language used for instruction in public schools, is that minority communities have a clear right to offer private language classes in which their children can learn and maintain their home languages. Thus, the common practice of language-minority communities today in offering heritage language programs after school and on weekends is protected by the U.S. Constitution.

Addressing the Linguistic and Educational Needs of ELL Students

Case law concerning the linguistic and educational needs of ELL students has had a major impact on federal and state policy for ELL students, their families, and their communities. Since the early 1970s, conflict and controversy have surrounded the issue of what constitutes an appropriate education for ELLs. Some rulings provide support for bilingual education; others erode that support. Some cases involve suits filed against bilingual education; others involve suits filed against anti-bilingual education voter initiatives.

Equal Educational Opportunities for ELLs

Lau v. Nichols

The 1974 Supreme Court case Lau v. Nichols resulted in perhaps the most important court decision regarding the education of language-minority students. This case was brought forward by Chinese American students in the San Francisco Unified School District who were placed in mainstream classrooms despite their lack of proficiency in English, and left to "sink or swim." The district had argued that it had done nothing wrong, and that the Chinese American students received treatment equal to that of other students. Justice William Douglass, in writing the court's opinion, strongly disagreed, arguing:

Under these state-imposed standards 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.... We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful.

The influence of Lau on federal policy was substantial. After the court's decision, the U.S. Department of Education's Office of Civil Rights created the Lau Remedies. Whereas Title VII Bilingual Education Act regulations applied only to funded programs, the Lau Remedies applied to all school districts and functioned as de facto compliance standards.

The Office of Civil Rights used the Lau decision to go after districts that, like San Francisco, were essentially ignoring the needs of its LEP students. Even though the court decision does not mandate any particular instructional approach, the Lau Remedies essentially require districts to implement bilingual education programs for LEP students. James Lyons (1995), former president of the National Association for Bilingual Education, explains further:

The Lau Remedies specified proper approaches, methods and procedures for (1) identifying and evaluating national-origin-minority students' English-language skills; (2) determining appropriate instructional treatments; (3) deciding when LEP students were ready for mainstream classes; and (4) determining the professional standards to be met by teachers of language-minority children. Under the Lau Remedies, elementary schools were generally required to provide LEP students special English-as-a-second-language instruction as well as academic subject-matter instruction through the students' strongest language until the student achieved proficiency in English sufficient to learn effectively in a monolingual English classroom. (pp. 4-5)

The essence of Lau was codified into federal law though the Equal Educational Opportunities Act of 1974 (EEOA), soon after the case was decided. Section 1703(f) of this act declares: "No state shall deny educational opportunities to an individual on account of his or her race, color, sex, or national origin by ... (f) the failure of an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs."

At the time of its passage, this section of the EEOA was viewed as a declaration of the legal right for students to receive a bilingual education, under the assumption that this is what Lau essentially mandated (Del Valle, 2003). Although other legal actions have since made it clear that the Supreme Court never did mandate bilingual education, the EEOA remains in effect and several subsequent lawsuits have been based on this important legislation.

Rulings that Support Bilingual Education

United States v. Texas

United States v. Texas (1971, 1981) includes mandates that affect all Texas schools. The court ordered the district to create a plan and implement language programs that would help Mexican American students learn English and adjust to American culture and also help Anglo students learn Spanish. The court relied heavily on the testimony of 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. (For a complete discussion of the theory, see Cardenas & Cardenas, 1977.)

Serna v. Portales

Serna v. Portales (1974) was the first case to raise the issue of bilingual education outside of the context of desegregation (Del Valle, 2003). The case dealt with a White-majority school in New Mexico that failed to meet the unique needs of "Spanish-surnamed students." It was argued under Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of "race, color, or national origin" in any program that receives federal funding. The court found the school's program for these students to be inadequate. The judge declared, "It is incumbent on the school district to reassess and enlarge its program directed to the specialized needs of the Spanish-surnamed students" and to create bilingual programs at other schools where they are needed. This case was first decided in 1972. Later it was appealed to the 10th Circuit Court of Appeals and decided in 1974 just six months after Lau. Like Lau, it makes clear that schools cannot ignore the unique language and educational needs of ELL students.

Aspira v. New York

Legal action taken by Puerto Rican parents and children in New York in Aspira v. New York (1975) resulted in the Aspira Consent Decree, which mandates transitional bilingual programs for Spanish-surnamed students found to be more proficient in Spanish than English. The Aspira Consent Decree is still in effect and has been a model for school districts across the country, though it is frequently under attack by opponents of bilingual education.

Bilingual education in New York received a further boost a few years later in Rios v. Reed (1978). The case was argued under Title VI of the Civil Rights Act and the EEOA. Puerto Rican parents brought suit claiming that many so-called bilingual education programs were not bilingual but based mainly on ESL. The federal court found the district's bilingual programs to be woefully inadequate, pointing to the lack of trained bilingual teachers and the absence of a clearly defined curriculum, clear entrance and exit criteria, and firm guidelines about how much instruction should be in the native language of the students. Although the court issued no specific remedies, the federal Office of Civil Rights came in to ensure that the district made improvements. This case is significant because it made a strong case for offering bilingual education and for doing it right.

Rulings That Erode Support for Bilingual Education

San Antonio Independent School District v. Rodriguez

Another Texas case, San Antonio Independent School District v. Rodriguez (1973), although not directly related to bilingual education, had some serious implications for it. It dealt with inequalities in school funding, with the plaintiff charging that predominantly minority schools received less funding than schools that served predominantly White students. The case was argued under the Equal Protection Clause of the 14th Amendment, but the U.S. Supreme Court ruled that there is no fundamental right to an education guaranteed by the Constitution. Indeed, if there is no constitutional right to an education under the 14th Amendment, as Del Valle (2003) points out, "there is clearly no constitutional right to a bilingual education" (p. 234, emphasis in original).

Flores v. Arizona and Williams v. California

Because of this case, all subsequent cases over inadequacies in school funding have had to be argued under state constitutions. Some of these cases, such as Flores v. Arizona (2000) and Williams v. California (settled in 2004), include or specifically address inadequacies related to the education of ELL students. But despite court orders in Flores to increase funding for ELL students, state legislators and educational leaders have used a wide variety of stall tactics and legal maneuvering to avoid fully complying with the court's order.

In 2009 the Arizona legislature and the state superintendent of public instruction appealed the case to the U.S. Supreme Court. The high court essentially agreed with the state leaders that the situation in Arizona for ELLs had changed substantially since the original lower court ruling, and thus the lower courts must take these changes into consideration. Although the ruling was disappointing to the plaintiffs, it nonetheless keeps the legal battle alive, with the attorney and advocates in the state gathering new evidence of the harm caused by recent state policies and the underfunding of ELLs' education. This case demonstrates that even when courts issue decisions with specific mandates, changes do not happen immediately and are often resisted by political figures who disagree with the decision.

Otero v. Mesa County Valley School District

In the 1980s, in the wake of Lau, support for bilingual education was eroded by the courts. For example, a case in Colorado, Otero v. Mesa County Valley School District (1980), failed in the plaintiffs' attempt to obtain a court order for bilingual education. The plaintiffs wanted a plan for its Mexican American students like the one based on the testimony of Cardenas that was recommended by the court in United States v. Texas (1971) even though they made up a small number of students in the district, and less than 3% could even speak or understand Spanish. As in United States v. Texas, the court's decision made it clear that despite Lau, there is no constitutional right to bilingual or bicultural education (Del Valle, 2003).

Keyes v. School District No. 1

In another Colorado case, Keyes v. School District No. 1 (1983), the court also rejected a Cardenas-like plan on the basis that Lau did not mandate bilingual education and that according to the decision in Rodriguez there is no constitutional right to education. The bilingual education component was just one part of this complicated desegregation case. Del Valle suggests that the court seemed content that the district was simply offering a "number of programs" for ELLs, without examining the adequacy of these programs. This issue of program adequacy, however, was addressed in subsequent lawsuits.

Castañeda v. Pickard

The right to bilingual education suffered a further blow in 1981 in Castañeda v. Pickard. The case originated in Texas, where plaintiffs charged that the Raymondville Independent School District was failing to address the needs of ELL students as mandated by the EEOA. The federal court ignored the old assumption that Lau and the EEOA mandated bilingual education. Nevertheless, it did find that Raymondville fell far short of meeting the requirements of the EEOA. A major outcome of this case is a three-pronged test to determine whether schools are taking "appropriate action" to address the needs of ELLs as required by the EEOA.

The Castañeda standard mandates that programs for language-minority students must be (1) based on a sound educational theory, (2) implemented effectively with sufficient resources and personnel, and (3) evaluated to determine whether they are effective in helping students overcome language barriers (Del Valle, 2003). Since the U.S. Supreme Court decision in Lau, two other lawsuits have been decided in the high court that, while not related to bilingual education, nonetheless undermine the original legal argument of Lau. [These two cases are Regents of the University of California v. Bakke (1978) and Alexander v. Sandoval (2001).] Thus, the Castañeda standard, which encapsulates the central feature of Lau - that schools do something to meet the needs of ELL students - has essentially become the law of the land in determining the adequacy of programs for ELLs.

Del Valle (2003), however, points out the shortcomings of the Castañeda test. Referring to prongs 1 and 2, she notes that nearly any program can be justified by an educational theory and that some approaches require very little in the way of staff or funding. Of even greater concern is that, under prong 3, a certain amount of time must pass before a determination can be made about the adequacy of the programs. Thus, many students may be harmed before inadequate programs are identified and rectified.

Gomez v. Illinois State Board of Education

Despite these shortcomings, a case 6 years after Castañeda - Gomez v. Illinois State Board of Education (1987) - demonstrated the value of the Castañeda test in legal efforts to rectify inadequate programs. The U.S. Court of Appeals for the 7th Circuit relied heavily on Castañeda in its decision and gave state boards of education the power to enforce compliance with the EEOA. The court declared, in a ruling much like Lau, that school districts have a responsibility to serve ELL students and cannot allow children to just sit in classrooms where they cannot understand instruction. However, as in Lau, the court did not mandate any specific program models.

Recent Lawsuits

Between 1995 and 2001, opponents of bilingual education in a few communities filed lawsuits against their school districts (e.g., Bushwick Parents Organization v. Mills [1995] in New York). Del Valle (2003) suggests that through these cases opponents of bilingual education attempted to turn the original purpose of bilingual education on its head by charging that a program that was developed to ensure that ELL students have the same educational opportunities as all other students was actually preventing equal educational opportunities for ELL students.

These cases also illustrate that attacks on bilingual education are rarely grass-roots efforts by Latino parents but rather are orchestrated by powerful outsiders who mislead parents into joining their cause and in the process often create divisions within Latino communities. Although these legal attacks on bilingual education failed, opponents of bilingual education have scored major victories in the court of public opinion through the English for the Children voter initiatives described earlier.

These voter initiatives, however, have not gone uncontested. Five cases in California were based on challenges to Proposition 227: Quiroz v. State Board of Education (1997); Valerie G. v. Wilson (1998); McLaughlin v. State Board of Education (1999); Doe v. Los Angeles Unified School District (1999); California Teachers Association v. Davis (1999). At least two cases in Arizona were based on challenges to Proposition 203: Sotomayor and Gabaldon v. Burns (2000) and Morales v. Tucson Unified School District (2001). Although some of these resulted in small victories, none has succeeded in overturning the voter initiatives.

Summary

Case law has had a major impact on federal and state policy for ELL students and their families and communities. While the courts have been reluctant to mandate a particular educational model or approach or to give language minorities fundamental rights directly related to the use of their native languages, the courts have nonetheless made it clear that schools may not ignore the unique needs of ELL students.

Any program for ELLs, regardless of the language of instruction or the models used, must do two very important things: teach English and teach academic content. Schools must provide instruction in English for ELLs because they are not yet proficient in English, and because they need fluency in English to succeed in mainstream classrooms and to be successful in life in general in the United States. At the same time, schools cannot focus just on teaching English. Students must also learn the same academic content their English proficient peers are learning, in such subjects as language arts, math, science, social studies, music, art, and physical education. In Chapter 4 we review the different program models for ELL students and how these programs address the legal requirements for teaching English and the content areas.

Acknowledgements

Our policy section is made possible by a generous grant from the Carnegie Corporation. The statements and views expressed are solely the responsibility of the authors.

Wright, W. E. (2010). Foundations for Teaching English Language Learners: Research, Theory, Policy, and Practice. Excerpt from Chapter 3, "Language and Education Policy for ELLs." (pp. 70-76). © Caslon Publishing. Printed with permission, all rights reserved.

Cardenas, J. A., & Cardenas, B. (1977). The theory of incompatibilities: A conceptual framework for responding to the educational needs of Mexican American children. San Antonio, TX: Intercultural Development Research Association.

Del Valle, S. (2003). Language rights and the law in the United States: Finding our voices. Clevedon, UK: Multilingual Matters.

Kozol, J. (2005). The shame of the nation: The restoration of apartheid schooling in America. New York: Crown.

Lyons, J. (1995). The past and future directions of federal bilingual education policy. In O. García & C. Baker (Eds.), Policy and practice in bilingual education: Extending the foundations (pp. 1-15). Clevedon, UK: Multilingual Matters.

Tamura, E. H. (1993). The English-only effort, the anti-Japanese campaign, and language acquisition in the education of Japanese Americans in Hawaii, 1914-1940. History of Education Quarterly, 33(1), 37-58.

TESOL (Teachers of English to Speakers of Other Languages). (2006a). PreK-12 English language proficiency standards. Alexandria, VA: Author.

Trujillo, A. (2008). Latino civil rights movement. In J. M. González (Ed.), Encyclopedia of Bilingual Education (pp. 505-510). Thousand Oaks, CA: Sage.

U.S. Department of Education. (2003a). Non-regulatory guidance on the Title III State Formula Grant Program. Part II: Standards, assessments, and accountability. Washington, DC: Office of English Language Acquisition, Language Enhancement, and Academic Achievement for Limited English Proficient Students.

Wiley, T. G. (1998). The imposition of World War I era English-only policies and the fate of German in North America. In T. Ricento & B. Burnaby (Eds.), Language and politics in the United States and Canada: Myths and realities(pp. 211-241). Mahwah, NJ: Lawrence Erlbaum.

For any reprint requests, please contact the author or publisher listed.

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Landmark Court Rulings Regarding English Language Learners

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In this excerpt from Foundations for Teaching English Language Learners: Research, Theory, Policy, and Practice ( Caslon, 2010), Wayne Wright summarizes the landmark U.S. court cases that have had significant implications for ELLs. In particular, Wright focuses on cases relating to segregation, the right of communities to teach their native languages to children, and the linguistic and education needs of ELLs.

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PROVIDENCE - Rhode Island Legal Services and the American Civil Liberties Union of Rhode Island are suing the state Department of Education over a policy in Providence they say shortchanges the rights of English language learners.

The appeal seeks to overturn a ruling by state education Commissioner Ken Wagner, who upheld the Providence school department's method of providing services to English language learners. The ACLU and Legal Services claim that the Rhode Island Department of Education, in its ruling, provides less support to those students than federal law requires.

Long concerned about the inadequate educational services provided to English learners, the two organizations filed an administrative complaint with the Department of Education in 2016 on behalf of parents in Providence whose children were receiving little or no instruction by a certified English as a Second Language (ESL) teacher.

Providence claimed that these children were being adequately served by general and special teachers because they consulted with ESL teachers as infrequently as once every two months. This "consultation" model, the ACLU said, required no additional training for the regular education teachers. Its approval by RIDE is the basis of the ACLU appeal.

Meanwhile, the U.S. Department of Justice, which reviewed Providence's English learner instruction last year, found that consultation model didn't meet federal law.

In an agreement between the Department of Justice and Providence in August, the school department agreed to stop using that model because it was "educationally unsound." The schools also agreed to make sure that future instruction be provided by teachers trained in English as a Second Language.

But the ACLU said the agreement is only in force for a limited period, and said it did not include any provisions for compensatory services.

Despite those findings, Wagner last month approved a RIDE hearing officer's decision. In an appeal filed this week with the Council on Elementary and Secondary Education, the ACLU and Legal Services claim that RIDE's decision is contrary to state law and regulations, as well as the federal laws the state regulations are designed to implement.

In his ruling, the RIDE hearing officer called the Justice agreement irrelevant to interpreting Rhode Island law.

The appeal argues that children with disabilities who are in a self-contained setting "receive absolutely no direct services from an ESL teacher, regardless of whether they know any English at all," while "general education children within the two lowest levels of English language proficiency" receive at least some direct ESL teacher instruction every day.

The brief calls on the council, which oversees RIDE, to reverse Wagner's ruling, find that Providence's plan is unlawful, and order compensatory services to under-served English learners.

Meg Geoghegan, a spokesperson for the education department, said the settlement with the Department of Justice occurred after the hearing record was closed, and the hearing officer declined to add that information to the record.

"It is important to distinguish between the hearing decision - based on the evidence introduced into the record - and the Department of Justice report, which was based on extensive Providence site visits and interviews," she wrote.

Rhode Island Legal Services lawyer Veronika Kot said English learners in Rhode Island "are lagging academically, and national studies find that Latino children in Rhode Island rank second-to-last in the country on indicators of likely success, which include academic achievement. It is critical, therefore, that their rights under both state and federal laws be energetically enforced by the state agency charged with doing so, so they can have equal access to education."
- lborg@providencejoural.com (401)277-7823

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Lawsuit: Rhode Island fails English language learners

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PROVIDENCE - Rhode Island Legal Services and the American Civil Liberties Union of Rhode Island are suing the state Department of Education over a policy in Providence they say shortchanges the rights of English language learners. The appeal seeks to overturn a ruling by state education Commissioner Ken Wagner, who upheld the Providence school department's method of providing services to English language learners.

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The Legal Obligations of Education Systems to Serve English Learners with Disabilities

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The Legal Obligations of Education Systems to Serve English Learners with Disabilities

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https://publications.ici.umn.edu/impact/26-1/the-legal-obligations-of-education-systems-to-serve-english-learners-with-disabilities

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The number of English learners (ELs) enrolled in the public schools has been increasing rapidly over the past decades. Along with this increase, more ELs are being identified for special education. The relationship between language development and disability is complex. In some instances, ELs may be improperly labeled as having a disability. In other instances, these students may not receive the special education and related services that they need.

There are two types of laws that address the education of ELs with disabilities - those that pertain to language learning, and those that pertain to the provision of special education services. The first part of this article discusses obligations with respect to all ELs, including ELs with disabilities, under Title VI of the Civil Rights Act of 1964, the Equal Educational Opportunities Act, and the Elementary and Secondary Education Act. That is followed by a discussion of specific obligations pertaining to ELs with disabilities under the Individuals with Disabilities Education Act.

Requirements of Title VI and the Equal Educational Opportunities Act

Title VI of the Civil Rights Act of 1964 (Title VI) is a civil rights law that prohibits discrimination on the basis of race, color, or national origin in programs that receive federal funding.1 The Office of Civil Rights of the U.S. Department of Education is the federal agency that enforces Title VI.2 In investigating complaints under Title VI, the office has noted that Title VI does not require a particular program of instruction such as English as a Second Language. However, once a district offers a bilingual program, at a minimum, the teachers should be able to speak, read, and write both languages and should have received adequate instruction in bilingual education.3

The Equal Educational Opportunities Act (EEOA) is another civil rights law that requires states and school districts to take appropriate action to overcome language barriers that impede the equal participation of ELs in instructional programs.4 This law was originally passed in 1974, the same year as the Supreme Court's decision in the Lau v. Nichols case. In this case, the Supreme Court concluded that the San Francisco school system had failed to provide non-English speaking Chinese students with equal educational opportunities under Title VI.5

The Civil Rights Division of the U.S. Department of Justice enforces the EEOA and investigates complaints that states or districts are not providing appropriate services to ELs.6 The Department of Justice has pointed out that the EEOA does not require educational agencies to use a particular type of language program such as English as a Second Language. Rather, courts typically use three factors to determine whether the educational agency acted appropriately:

Is the program based on sound educational theory?

Is the program reasonably calculated to carry out this educational theory effectively?

After a sufficient time, does the program show that the language barriers facing ELs are actually being overcome? 7

The Office of Civil Rights has applied these same three factors to the investigation of complaints under Title VI.8

Originally passed in 1965 as part of President Johnson's War on Poverty, the Elementary and Secondary Education Act (ESEA) is the major federal education statute that focuses on the education of all students in grades K-12. It emphasizes high standards and accountability.

Under Title I of the ESEA, as amended by the No Child Left Behind Act of 2001, states are required to adopt challenging academic content and achievement standards for all children in the state.9 Title I also requires states to conduct yearly academic assessments that are aligned with these standards10 and report on the progress of students in certain subgroups, including race/ethnicity and limited English proficiency.11 English learners (referred to in the ESEA as "limited English proficient children") must be assessed in a valid and reliable manner with reasonable accommodations, including (to the extent practicable) assessments in the language and form most likely to yield accurate data on what these students know and can do until they have achieved English language proficiency.12 ESEA regulations also permit states to exclude from the reading/language arts assessment an EL who has attended school in the United States for less than 12 months.13

Title III of the ESEA focuses on ensuring that ELs, including immigrant children and youth, attain English proficiency and meet the same challenging academic content and achievement standards that other students are expected to meet.14 Title III provides grants to states, which award subgrants to districts and other eligible entities to improve the education of ELs.15 The law does not specify what type of instructional program a district must use, as long as the program is "based on scientifically based research."16

Under Title III, states must establish English language proficiency standards that are based on the four language domains (speaking, listening, reading, and writing) and that are aligned with the state's content and achievement standards for all students.17 States must also assess the English proficiency of students served under Title III on an annual basis.18 Moreover, states are required to establish annual measurable achievement objectives that include:

Annual increases in the number or percentage of children making progress in learning English.

Annual increases in the number or percentage of children attaining English proficiency by the end of each school year.

Progress for ELs in reading/language arts and mathematics.19

Beginning in 2011, the U.S. Department of Education has offered states the opportunity to request flexibility to waive certain requirements of the ESEA. To receive flexibility, each state must submit a waiver request that addresses several principles for improving academic achievement and increasing the quality of instruction. In providing guidance on what states must include in their waiver requests, the department has noted that "English Learners are covered by all the principles of this flexibility." The guidance also included ways in which states could address ELs in their waiver requests, including potential changes concerning the third objective identified above on progress in reading/language arts and mathematics.20

The Individuals with Disabilities Education Act (IDEA) is the federal special education statute. IDEA is both a funding statute and a civil rights statute that was enacted under the Fourteenth Amendment. IDEA includes several provisions that pertain to the evaluation and identification of ELs with disabilities. These provisions are intended to ensure that ELs are not identified inappropriately for special education. In conducting special education evaluations, school districts must ensure that assessments and other evaluation materials are selected and administered in a manner that is not discriminatory on a racial or cultural basis.21 In addition, these assessments must be administered in the language and form that is most likely to provide accurate information about what the child knows and can do, unless it is not feasible to do so.22 Moreover, trained and knowledgeable personnel must administer the assessments.23 The Act further specifies that a child must not be found eligible for special education services under IDEA if the determining factor is limited English proficiency.24

Several IDEA provisions relevant to ELs with disabilities pertain to the development of Individualized Education Programs (IEPs). IDEA requires that, in the development of an IEP for a student with limited English proficiency, the IEP team consider the language needs of the child.25 In addition, districts must take whatever action is necessary to ensure that the child's parents understand what is happening at the IEP meeting, including arranging for an interpreter if the parents' native language is not English.26

Additional requirements pertain to communication with parents of ELs with disabilities. Districts must provide parents prior written notice when the district proposes to initiate or change (or refuses to initiate or change) the identification, evaluation, educational placement, or provision of a free appropriate public education. IDEA specifies that this notice must be provided in the parents' native language, unless it clearly is not feasible to do so.27 Similarly, when the district provides parents with a notice of procedural safeguards, this notice must be written in the parents' native language, unless it clearly is not feasible to do so.28

All of the above requirements are intended to help improve the provision of services to ELs with disabilities. In order to address the needs of this population more effectively, it is important for educators to be aware of their legal obligations and to work collaboratively with families in implementing these obligations.

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Impact | Volume 26, Number 1 | The Legal Obligations of Education Systems to Serve English Learners with Disabilities

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The number of English learners (ELs) enrolled in the public schools has been increasing rapidly over the past decades. Along with this increase, more ELs are being identified for special education. The relationship between language development and disability is complex. In some instances, ELs may be improperly labeled as having a disability. In other instances, these students may not receive the special education and related services that they need.

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Legislation for English Language Learners in Oregon 

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Legislation for English Language Learners in Oregon 

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Title 30, Education and culture; Chapter 336, Conduct of Schools Generally; Section 336.079, English language learners; statewide plan; interventions; rules. Refreshed: 2021-06-26

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Section 1412 of IDEA specifically calls for "least restrictive environment" for students. I think this can relate to ELs in that the classroom they are placed in should be inclusive of the language needs as well as learning needs.

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Individuals with Disabilities Education Act

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Section 1412 (a) (1) - Individuals with Disabilities Education Act

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Statute/Regs Main » Statute » Subchapter II (Part B) » 1412 » A » 1 (1) Free appropriate public education (A) In general A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilit…

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https://www.air.org/search?search=/resource%20what%20will%20essa%20mean%20english%20learners

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The First 5 LA Family Literacy Initiative is a comprehensive program to promote language and literacy development, parenting knowledge and skills, and economic self-sufficiency among low-income families. AIR has worked with First 5 LA since the beginning of the initiative to evaluate its implementation and overall effectiveness. ...

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San Antonio Independent School District v  Rodriguez (Landmark Court Decisions in America)💬🏛️✅