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Current data estimates that 15% of Texas students in Kindergarten - 12th grade are from legal and undocumented immigrant families.  These linguistically and culturally diverse students require specialized pedagogical practices to learn effectively in their non-dominant language.  An English language learner (ELL) myself, I often received an inferior education due to educators who were either biased or ignorant of best practices for ELL students. As a future school counselor, I am charged by The Texas Model for Comprehensive School Counseling to understand differences "including those related to cultural background, gender, ethnicity, and learning styles" (Texas Education Agency, 2018, p. 28).  I will consult with and train educators and all stakeholders to ensure that legal and ethical policies related to ELLs are implemented with fidelity so that ELL students can receive the same high quality education that monolithic students receive.

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1) English Language Learners are an ever-growing subpopulation within public education with unique social/emotional and academic needs. There are legal requirement and compliance issues that can affect the teacher's certification or cause litigation against an employing school district if not followed.  Students cannot be discriminated against based on several protected classes such as race and national origin. It is imperative that educators are aware of the limitations of this law as not only a legal obligation, but an ethical one as well (Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e et seq).

2) Best practices:

Provide instructional accommodations for ELL students such as pre-teaching academic vocabulary.

Use culturally-inclusive literature and practices to prevent isolation for ELLs.

Modify pacing for ELLs as needed (e.g. increase wait time during questioning).

3) An emerging issue related to the education of ELLs is how the pandemic disproportionately affected the ELL subgroup.  ELLs as a whole had inadequate access to technology and adult support of their education.  In addition, online learning provided fewer opportunities for modified instruction.  As a result, the educational gap between ELLs and their monolithic peers widened.

4)  I interviewed Elizabeth McIntyre, an English Language Learner teacher at Clarke Elementary with two Master's Degrees: one in Educational Leadership and another in Special Education.  In our conversations, we learned that we were both bilingual and ELL certified. I asked Ms. McIntyre to share some insight into inequities she observed in the education of ELL students compared to mainstream students in public schools and actionable corrective steps that educational stakeholders can take.

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The National Education Association (NEA) has a downloadable guide that informs effective advocacy steps for ELLs.  The guide summarizes ELL students' rights, provides educator training and preparation lessons, and tips to increase family involvement. There is also a register of ELL-based organizations, community-based organizations, and groups who advocate for immigrants' rights.

Reference: National Education Association. (2015). All in! How educators can advocate for English language learners. The National Education Agency. file:///Users/siaosis24/Downloads/All%20In!%20How%20Educators%20Can%20Advocate%20for%20English%20Language%20Learners.pdf

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All In! How Educators Can Advocate for English Language Learners (1)

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Arizona, California, and Massachusetts - who educate about 40% of national ELL students - enacted English-only educational laws 15 years ago to essentially outlaw bilingual education. Those laws have since been repealed in California and Massachusetts, with Arizona as the remaining stalemate, but Proposition 203 has been introduced to repeal it there as well.  The repeal of these laws exemplify a cultural shift in education to embrace culturally-inclusive practices and bilingualism in public education.

Reference: Corey, M. (2019, October 23). English-Only laws in education on verge of extinction. EducationWeek. https://www.edweek.org/teaching-learning/english-only-laws-in-education-on-verge-of-extinction/2019/10

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Just 15 years ago, bilingual education was banned in three states-Arizona, California, and Massachusetts-which altogether educated 40 percent of the nation's English-language learners.

Now, amid the national embrace of biliteracy and dual-language education, those statewide English-only laws are on the brink of extinction.

In the past three years, voters and lawmakers in California and Massachusetts repealed anti-bilingual education laws, leaving Arizona's as the last one standing.

Arizona Superintendent of Public Instruction Kathy Hoffman intends to push for a full repeal of the state's "English for Children" law, during the 2020 legislative session that begins in January and she has support from both Democratic and Republican legislators.

Lawmakers in Arizona already dealt a blow to the bilingual education ban this year, cutting the amount of time English-learners have to spend in mandatory English-only immersion classes from four hours a day to two.

"We should be using evidence-based best practices and giving flexibility to school communities, so our [English-learner] students can more quickly pick up their new language and succeed in the long-term," Hoffman said in a statement provided to Education Week.

Bilingual activists and the state tangled for decades over the legality of the requirement that ELLs take four hours of English instruction a day-a move that opponents said restricted ELLs' access to other coursework and minimized their exposure to native English-speaking peers. In 2015, the San Francisco-based 9th U.S. Circuit Court of Appeals ruled in favor of the state in Flores v. Arizona, rejecting the plaintiffs' argument that the state's approach to teaching English-learners violated the federal Equal Educational Opportunities Act, a law that requires states and districts to provide students with appropriate aid to overcome language barriers.

Research-backed bilingual education models often take a different approach, such as mixing native English speakers with English-learners in dual-language classrooms in which students learn English and a second language.

'Unz Initiatives'

Software developer Ronald Unz, who financed the campaigns to ban bilingual education in Arizona and California, isn't convinced that a return to bilingual education will benefit English-learners.

Approved in the late 1990s and early 2000s, the laws known as "Unz initiatives" replaced bilingual education with structured- or sheltered-English-immersion programs.

In the early 2000s, Unz and other proponents of California's English-only law felt vindicated when ELLs' test scores in English proficiency and reading rose in the first few years after the law passed.

"All the research is done by bilingual activists and bilingual academics and bilingual professors," Unz said.

"They all predicted getting rid of bilingual education would be a gigantic disaster."

But evidence began to emerge more than decade ago that the English-only approach was not producing the intended results.

See Also: Teaching America's English-Language Learners: A Special Report

A U.S. Department of Education-funded study released in 2008 found that states with bilingual education had smaller achievement gaps on the National Assessment of Educational Progress than states with the "Unz initiatives."

Fifteen years after the law passed, Arizona has one of the nation's lowest graduation rates for English-learners; roughly 40 percent of English-learners in the class of 2017 earned a high school diploma in four years. That's 25 percentage points below the national average.

"With the passage of time and the outcomes we were getting, we could see, anybody could see, that it wasn't working," said Delia Pompa, a senior fellow for education policy at the Migration Policy Institute's National Center on Immigration Policy.

Pompa was the head of the U.S. Department of Education's bilingual education office and then the National Association of Bilingual Education during the years that voters passed the "Unz initiatives."

The accountability movement in K-12 education ushered in by the No Child Left Behind Act led to the undoing of the English-only laws because districts had to closely monitor the progress of all students, including English-learners, she said.

"There was a mistaken notion that if you just expected these kids to speak English and work harder at it, they would do it. It was clear that these kids weren't doing well," Pompa said. "I don't think it's an accident that you kind of saw a domino effect with these [laws]."

Turning Tide

Despite the mounting evidence, the tide against the English-only education laws did not begin to turn until 2016.

That's when California voters passed Proposition 58, which effectively repealed that state's Unz initiative: Parents there no longer have to sign waivers if they want their children to participate in bilingual education or dual-language immersion.

A year later, Massachusetts lawmakers passed the LOOK Act, an acronym for "language opportunity for our kids."

As in California, Massachusetts districts can now select their own method for teaching English to English-learners.

The push to repeal Proposition 227 in California, also led to the creation of the seal of biliteracy, which grants special recognition to high school graduates who demonstrate fluency in two or more languages. Less than a decade after California introduced the honor, students in nearly 40 states and the District of Columbia can earn recognition for their ability to read, speak, and write in more than one language.

"We are much more enlightened and realize what bilingual students bring to the classroom," said Santiago Wood, executive director of the National Association of Bilingual Education.

The law has restricted teachers of English-learners, as well as students.

Patricia Sandoval-Taylor, the director of the language acquisition department in the Tucson, Ariz., district, taught in a structured English-immersion classroom after the state's English-only law passed.

When helping her students define a vocabulary word such as elegant, Sandoval-Taylor said she was prohibited from using the Spanish equivalent, elegante, to help her students make the connection.

"Even though I knew their primary language and could help them with that tool, I instead had to use English only," Sandoval-Taylor said.

In Tucson, English-learners must prove their proficiency in English before they're allowed to enroll in dual-language programs. But native English-speaking students don't have to prove their proficiency in another language in order to enroll in dual-language.

Lisa Graham Keegan, who served as Arizona's state schools superintendent when the English-only law passed and neither supported nor opposed it at the time, said some of the state's highest performing schools, especially those with significant English-learner populations, simply ignored the law.

"The nonsense that occurs when we deny children the opportunity to use and develop their native language can be both demoralizing and counterproductive," Keegan said.

"Our best examples of teaching English well do so with great respect to, and use of, the native language."

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'English-Only' Laws in Education on Verge of Extinction

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Just 15 years ago, bilingual education was banned in three states-Arizona, California, and Massachusetts-which altogether educated 40 percent of the nation's English-language learners. Now, amid the national embrace of biliteracy and dual-language education, those statewide English-only laws are on the brink of extinction.

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In measuring different variables for state and federal reports, schools are studying the direct correlation between school attendance and students' educational outcomes.  ELL students have the highest rates of chronic absenteeism and their academic success is impacted accordingly.  Educators and legislators are advocating for policy shifts in the monitoring of school attendance to target chronic absenteeism and truancy amongst all subgroups, especially ELL students.

Reference: Garcia, E., & Weiss, E. (2018, September 25). Missing school hurts academic performance: English language learners and Native American students the most likely to be chronically absent. Economic Policy Institute. https://www.epi.org/press/missing-school-hurts-academic-performance-english-language-learners-and-native-american-students-the-most-likely-to-be-chronically-absent/

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In a new EPI paper, EPI Economist Emma García and Elaine Weiss, former National Coordinator of the Broader Bolder Approach to Education, take a deep dive into student absenteeism and its influence on academic performance.

Since its passage in 2015, the Every Student Succeeds Act (ESSA) has required states to report a nontraditional measure of student progress-and absenteeism is emerging as the most popular metric to meet this requirement. Most states now plan to look more closely into student-level attendance metrics, such as the number of days each student misses or if a student is chronically absent.

"Given that most states are using 'chronic absenteeism' as a metric in their ESSA accountability plans, understanding the drivers of absenteeism, what the characteristics of those experiencing higher rates of absenteeism are; and how absenteeism affects student performance is more important than ever," said García. "The move in education policy toward widening accountability indicators to include indicators of 'school quality or student success,' such as absenteeism, is important and useful."

García and Weiss aim to fill in some of the gaps in the analysis of data surrounding absenteeism. Using National Assessment of Education Progress (NAEP) data from 2003 and 2015, the authors use this information to describe how much school children are missing, on average; which groups of children miss school most often; and whether there have been any changes in these patterns between 2003 and 2015.

A few key findings include:

In 2015, one-in-five eighth graders missed three or more days a month-a proxy for chronic absenteeism.

Absenteeism varies significantly depending on race, ethnicity, language, poverty, and disability status. 23.2 percent of students eligible for free and reduced price lunch (FRPL), and 17.9 percent of students eligible for reduced-price lunch missed three school days or more, compared with 15.4 percent of students who were not FRPL-eligible. 26 percent of students with disabilities missed that amount of school.

English language learners (ELL) and Native American students were the most likely to miss three or more days of school (24.1 and 24.0 percent, respectively), followed by black students (23.0 percent), and Hispanic non-ELL and white students (19.1 and 18.3 percent, respectively). Only 8.8 percent of Asian non-ELL students missed more than three days of school a month.

Among students missing more than 10 days of school, the shares of students eligible for free lunch and students with disabilities were more than double the shares of non-poor, non-IEP students.

There were across-the-board reductions in the shares of students who missed three or more days of school and of students missing more than 10 days of school.

Chronic absenteeism is associated with lower academic performance, but importantly, the degree to which this is true varies across student groups, as well as by the total number of school-days missed. Generally speaking, as students miss school more frequently, their performance gets worse.

"Missing school has a distinct negative influence on performance, even after the potential mediating influence of other factors is taken into account, and this is true at all rates of absenteeism," said Weiss. "The bottom line is that the more days of school a student misses, the poorer his or her performance will be, irrespective of gender, race, ethnicity, disability, or poverty status. In order to help students succeed in school, policymakers should make reducing absenteeism a top priority."

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Missing school hurts academic performance: English language learners and Native American students the most likely to be chronically absent

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In a new EPI paper, EPI Economist Emma García and Elaine Weiss, former National Coordinator of the Broader Bolder Approach to Education, take a deep dive into student absenteeism and its influence on academic performance. Since its passage in 2015, the Every Student Succeeds Act (ESSA) has required states to report a nontraditional measure of...

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U.S. Const. amend. XIV of 1868 states that "no state shall... deny any person within its jurisdiction the equal protection of the laws." The equal protections afforded by this amendment extend to all U.S. citizens, including English language learners. This law laid the groundwork for nondiscrimination, equal opportunities within the educational field, and fair treatment for all students.

Reference: U.S. Const. amend. XIV.

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Federal Judicial Law:
In Lau v. Nichols, of Chinese-speaking students litigated the city of San Francisco’s school system for requiring their children to speak English in order to graduate while failing to provide instructional accommodations to master the English language. This case established a judicial mandate for educational accommodations for English mastery (Lau v. Nichols, 1974).  Additionally, these schools used federal funds to provide unequal services to ELL students.  As a result of this case, procedures were established to ensure the creation of quality educational programs for ELL students.  Click here for Lau v. Nichols case law.

State Judicial Law:
In Serna v. Portales, Mexican-American parents brought a class action lawsuit against their school district for failing to provide an education for their ELL children. ELL students have a right to receive an education in their primary language. This case laid the foundation for bilingual programs in public schools.
Click here her Serna v. Portales case law.

References:
Lau v. Nichols, 414 U.S. 563 (1974).
Serna v. Portales Municipal Schools, 351 D.N.M. 1279 (1974).

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Federal Statutory Law:
The Equal Educational Opportunities Act (1974) required state departments of education and local school districts to enact policies that provide quality educational opportunities to ELL students.  This law also remove barriers that prevent English language learners from participating in school programs. Click here for full text for the Equal Educational Opportunities Act.

Set uniform standard for judicial review of cases alleging educational inequality.

Required transportation reforms for integrated schools.

Schools must provide equal educational opportunities for students regardless of race, color, gender, or nationality.

State Statutory Law:
The Bilingual Education and Special Language Programs Act (2021), lays out Texas' ELL obligations for the public school students.

Bilingual education must be provided for elementary aged students.  Bilingual or ELL interventions must be provided for Middle School Students, and ELL intervention services must be provided for high school aged students.

If a district does not provide ELL educational programs, they must file documentation with the state for an exception due to teacher shortage, confirming their affirmative action hiring policies, and a plan to fix their deficiencies within 12 months.

References:
Equal Education Opportunities Act of 1974, 20 U.S.C. § 1701.
Texas Education Code, 2. Tex. Edu. Code § 29.053 (2021). https://statutes.capitol.texas.gov/Docs/ED/htm/ED.29.htm#29.053

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[USC02] 20 USC Ch. 39: EQUAL EDUCATIONAL OPPORTUNITIES AND TRANSPORTATION OF STUDENTS

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SUBCHAPTER I-EQUAL EDUCATIONAL OPPORTUNITIES Part 1-Policy and Purpose Sec. 1701. 1702. Part 2-Unlawful Practices 1703. 1704. 1705. Part 3-Enforcement 1706. 1707. 1708. Jurisdiction of district courts. 1709. Intervention by Attorney General. 1710. Part 4-Remedies 1712. 1713. 1714. Transportation of students. 1715. 1716. Voluntary adoption of remedies. 1717. 1718.

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Federal Level:
The U.S. Department of Education's Office (USDOE) for Civil Rights in partnership with the U.S. Department of Justice's Civil Rights Division (CRD) issued a Dear Colleague letter with guidance about the responsibilities of public schools who receive federal funds toward ELLs and their parents.  Schools must:

Comply with Title VI, non-discriminatory laws.

Use a research-based curriculum

Submit to fiscal oversight by the USDOE.

Integrate ELL students into mainstream classrooms in compliance with established timelines.

Provide effective parent communication in the parents' primary language.

Reference:
U.S. Department of Education & U.S. Department of Justice. (2015, January 7). Dear colleague letter: English learner students and limited English proficient parents. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf

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Step 10: Local Administrative Law/Policy/Rule

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Step 10: Local Administrative Law/Policy/Rule

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The Killeen Independent School District amended the  Bilingual/ESL handbook in 2018 (Killeen ISD, 2018, p. 21). This handbook revision was a result of the Every Child Succeeds Act (2001).  The new policy allotted funding to attend workshops for ELLs and paid for all classroom teachers to get an ELL certification through the Texas Education Agency.  This update represents a shift in local policy and a new emphasis on making English Language Learner instruction a standard expectation and a high quality education accessible to all ELLs. .

Reference:
Every Student Succeeds Act of 2015, 20 U.S.C. § 6301.

Killeen Independent School District (2018).  Killeen Independent School District Career 2018-2019 Bilingual/ESL Handbook, p. 21. https://killeenisd.org/webdata/DocumentViewer/2017-18bilingualeslhandbook.pdf

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The American School Counselor Association's (2016) ethical standard A.10 focuses on marginalized student populations, including ELL students. School counselors are charged with advocating for educational environments that are "equitable" and provide "resources needed to optimize and support academic, career, and social/emotional development" (ASCA, 2016, p.5). School counselors are also charged with using "constructive, two-way communication" with the parents in their "preferred language" (ASCA, 2016, p.5, A.10).

Reference:
American School Counselor Association. (2016). ASCA Ethical standards for school counselors.

https://www.schoolcounselor.org/getmedia/f041cbd0-7004-47a5-ba01-3a5d657c6743/Ethical-Standards.pdf

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Step 12: Personal Connection to the Legal and Ethical Standards

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Step 12: Personal Connection to the Legal and Ethical Standards

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By learning about the judicial cases, such as Lau v. Nichols (1974), I learned about ELL students' rights to quality educational programs.  The Equal Educational Opportunities Act (1974) taught me about the barriers that ELL students faced and our legal responsibility to remove them.  The ASCA Ethical Standards creates a uniform expectation for me as a school counselor to advocate for my ELL students.
As someone who learned English in elementary school, I am a testament to the importance of having a sound curriculum and specially-trained teachers. I am grateful for the protections established by the courts and administrative and statutory laws. In addition, I am inspired to advocate for marginalized populations, including ELL students in my future role as a school counselor.

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Step 13: List of Recommendations/Best Practices

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Step 13: List of Recommendations/Best Practices

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It is illegal to discriminate against students based on protected classes, including their nationality and primary language.

Schools accepting federal funds must use a research-based curriculum with proven results.

Use culturally-sensitive and inclusive teaching practices to  affirm English Language Learners' identities and confidence.

Use the least restrictive environment and assimilate English Language Learners as much as possible to prevent demoralization.

Communicate with parents in their preferred language, utilizing translators or translation services if needed for oral, written, and online communication.

Classroom teachers require specialized training and professional development in order to effectively serve English Language Learner students.

From an ethical stance, school counselors must advocate for equitable learning environments for marginalized subgroups like ELL students.