The Lau Remedies (1975)
A major effort to help school districts understand their responsibilities to national origin minority students was made on August 11,1975, when the Education Commissioner of the Department of Health, Education and Welfare (HEW) announced policy guidelines for school districts' compliance with the Title VI requirements that had just been upheld in the Lau decision. Those guidelines, prepared for HEW by an expert task force, were widely circulated in memorandum form to school officials and the public, but were never published in the Federal Register. Officially titled "Task Force Findings Specifying Remedies Available for Eliminating Past Educational Practices Ruled Unlawful Under Lau v. Nichols," the guidelines are usually referred to as the Lau Remedies, or (usually by the Courts) as the Lau Guidelines.
The Lau Remedies were detailed and specific. They specified approved approaches, methods, and procedures for:
Significantly, the Lau Remedies went beyond the Lau ruling to specify that schools should instruct elementary students through their strongest language until they could participate effectively in English-only classrooms. English as a Second Language (ESL) instruction was prescribed for all students for whom English was not the strongest language. Finally, any school districts that wished to rely exclusively on ESL would be obliged to demonstrate that their programs were as effective as the bilingual programs described in the Lau Remedies.
Although the Lau Remedies were criticized as poorly written and were never promulgated as formal regulations, they quickly evolved into the de facto standards that OCR staff applied for determining an education agency's compliance with Title VI under Lau Between 1975 and 1980, OCR carried out nearly six hundred Title VI compliance reviews which led to the negotiation of 359 school district Lau plans by July 1980, with virtually all of them based on the Lau Remedies. The Lau Remedies were frequently cited by Federal Courts in cases involving claims both under Title VI and the EEOA.
Court-Ordered Programs
In the years between the landmark Supreme Court Lau decision and 1980, a number of important Court findings shaped the meaning of EEOA's "appropriate action" provision, the Title VI requirement upheld in Lau, and the educational rights of national origin minority students before the law. Some of the most important cases of those years are discussed below in enough detail to to get at the "educational facts" considered by the Courts. Clearly the Courts were not only concerned with national origin minority students' opportunity to learn English, but also with schools' responsibility to provide "meaningful education."
Serna v. Portales Municipal Schools (1974)26
One of the first cases to receive appellate review following the Lau decision was Serna v. Portales Municipal Schools. After a District Court decision supported an action brought on behalf of the Spanish surnamed public school students of Portales (New Mexico), the school district appealed. The Tenth Circuit Court of Appeals summarized the students' complaint as follows:
Appellees [Sema] in their complaint charge appellant [Portales Municipal Schools] with discriminating against Spanish surnamed students in numerous respects. Allegedly, there is discrimination in appellants' failure to provide bilingual instruction which takes into account the special educational needs of the Mexican American student; failure to hire any teachers of Mexican American descent; failure to structure a curriculum that takes into account the particular education needs of Mexican American children; failure to structure a curriculum that reflects the historical contributions of people of Mexican and Spanish descent to the State of New Mexico and the United States; and failure to hire and employ any administrator, including superintendents, assistant superintendents, principals, vice-principals, and truant officers of Mexican American descent. This failure to provide equal educational opportunities deprived appellees and all others similarly situated of their right to equal protection of the laws under the Fourteenth Amendment.27
The Court of Appeals reviewed the evidence presented in the District Court trial noting:
Undisputed evidence shows that Spanish surnamed students do not reach the achievement levels attained by their Anglo counterparts. For example, achievement tests, which are given totally in the English language, disclose that students at Lindsey [a Portales elementary school whose student enrollment was 86 percent Spanish surnamed] are almost a full grade behind children attending other schools in reading, language mechanics and language expression. Intelligence quotient tests show that Lindsey students fall further behind as they move from the first to the fifth grade. As the disparity in achievement level increases between Spanish surnamed and Anglo students, so does the disparity in attendance and school dropout rates.28
A primary issue considered by the Appeals Court concerned the scope and content of the educational plan that the District Court had ordered. That plan was considerably more extensive than what had been proposed by the district. The Court's plan required:
I. Curriculum
A. Lindsey Elementary
All students in grades 1-3 shall receive 60 minutes per day bilingual instruction. All students in grades 4-6 shall receive 45 minutes per day bilingual instruction. These times are to be considered a minimum...A testing system shall be devised for determining the adequacy of the above established time periods with ensuing adjustments (either an increase or decrease in bilingual instruction) as needed.
B. James, Steiner, and Brown Elementary
All Spanish speaking students in grades 1-6 shall receive 30 minutes per day of bilingual instruction. This program should be made available to interested non-Spanish speaking students as funding and personnel become available...A bicultural outlook should be incorporated in as many subject areas as practicable.
Testing procedures shall be established to test the results of the bilingual instruction and adjustments made accordingly.
C. Junior High
Students should be tested for English language proficiency and, if necessary, further bilingual instruction should be available for those students who display a language barrier deficiency.
D. High School
An ethnic studies course will be offered in the 1973-74 school year as an elective. This course should be continued and others added in succeeding years. The minimum curriculum schedule set forth in A through D above is not intended to limit other bilingual programs or course offerings currently available in the Portales school system or which will become available in the future.
II. Recruiting and Hiring
A special effort should be made to fill vacancies with qualified bilingual teachers. Recruiting should be pursued...
III. Funding
Defendants appear to have complied with the Court's directive to investigate and utilize sources of available funding. Efforts should continue in seeking funding for present as well as future programs which will help achieve equality of educational opportunities for Spanish surnamed students.29
As to the District Court's finding that the Mexican American students' constitutional right to equal protection of the law had been denied, the Appeals Court ruled:
...we choose to follow the approach adopted by the Supreme Court in Lau; that is, appellees were deprived of their statutory rights under Title VI of the Civil Rights Act. As in Lau,...while Spanish surnamed children are required to attend school, and if they attend public schools the courses must be taught in English, Portales school district has failed to institute a program which will rectify language deficiencies so that these children will receive a meaningful education. The Portales school curriculum, which has the effect of discrimination even though probably no purposeful design is present, therefore violates the requisites of Title VI and the requirement imposed by or pursuant to HEW regulations.30
Against the school district's argument for a more modest plan of its own devising, the Appeals Court found that:
There was adequate evidence that appellants' proposed program was only a token plan that would not benefit appellees.31
Cintron v. Brentwood Union Free School District (1978)32
In the Cintron case, a class action suit on behalf of 3,700 Puerto Rican and other Hispanic students, was brought before the Federal District Court for the Eastern District of New York. The suit sought to prevent the 19,000 student Brentwood Union District from restructuring its bilingual program, Project Avelino, for which it intended to substitute a "Plan V." Plaintiffs cited Title VI (CRA 1964), the Equal Educational Opportunities Act of 1974, and the Civil Rights Act of 1871 in their challenge of the district's plans.
Brentwood argued that declining student enrollment necessitated teaching reductions; it cited a 1975 state Court order requiring teacher layoffs to be carried out on the basis of a single tenure system as cause for the districts' dismissal of 15 bilingual teachers with the least seniority and 2 part-time bilingual teachers, leaving the district with only 7 bilingual teachers; and it maintained that "Plan V" was needed so that bilingual education could be provided with the reduced teaching staff.
The Court noted that Project Avelino was offered to Hispanic students whose dominant or exclusive language was Spanish. Beginning in kindergarten and the first grade, the content curriculum was taught in Spanish and students received instruction as well. The percentage of English use increasedÄand Spanish use decreasedÄas students progressed from year to year. The expectation was that by the sixth grade students would be successful in English-only classes.
The Court noted that in Project Avelino:
A bilingual teacher and aide teach all substantive courses, and give individual attention to those students within the class who have a greater capacity to absorb English instruction...Hispanic students also receive instruction in the history and culture of their countries of origin...Only art, music, physical education, and other specialty subjects are taught exclusively in English. Special instructors relieve the bilingual teachers during such periods. 33
The Court also pointed out that in Project Avelino:
The bilingual program segregates the Spanish speaking students from the rest of the student body. The children remain in the same classroom except for physical education and lunch. Yet, during lunch hour and physical education period, they tend to continue as the same identifiable Spanish speaking group. Moreover, students who have attained the level of proficiency in English which would permit learning in the English language are nevertheless retained in the program for the purpose of maintaining their Spanish cultural level. No student has been transferred from the bilingual program to the regular English curriculum in the history of Project Avelino.34
Under "Plan V," the program proposed by the school district, the seven elementary schools would offer an ESOL center. A Spanish basic skills room would provide remedial help and cultural instruction. Hispanic students would spend most of the school day with English speaking students where such subjects as reading, mathematics, and social studies would be taught in English. Non-English speaking students would also be required to attend the Spanish basic skills room for periods ranging from one-half hour to one and one-half hours depending upon the student's English comprehension level. Bilingual teachers there would offer remedial help, explaining in Spanish the subject matter covered in the monolingual homeroom. Cross-cultural studies and basic language arts (for example, Spanish language, literature, and comprehension) would also be taught in the basic skills room. The Court noted that in "Plan V's" basic skills room:
Groupings of kindergarten, first and second grade, third and fourth grade, and fifth grade students never exceeding twenty in number, would be scheduled to assemble there each period. While the majority of students would receive cross-cultural or language art instruction from bilingual teachers, the aide might devote her attention to three or four students who needed remedial help in the substantive courses covered in the English homeroom.The school board estimates that under "Plan V," each bilingual teacher and aide will teach nine half-hour periods. Each day, kindergarten students would be slotted for one half-hour in the morning or one half-hour in the afternoon; first and second graders for three half-hour periods; third and fourth graders for one half-hour period plus an extra time period; while fifth graders will have the option of attending the one half-hour period assigned to fourth graders or specially designated "extra help classes." No maximum limit is placed on the time that a student might attend the basic skills room; the only limitation imposed is the class size. But, a child who attends during a period for which his class is not scheduled runs the risk of finding himself or herself at a significantly different level of instruction.
35
The Memorandum of Decision also set forth findings of fact regarding "Identification of Students for Bilingual Instruction" under both Project Avelino and "Plan V."
Students who have English language deficiencies are identified at kindergarten registration by a Spanish speaking social worker or psychologist. When an entrant requiring help is identified, the problem is discussed with the parent. The parents have the option of choosing a class taught in English, an ESOL program or a bilingual program. No reliable method, however, is used to identify students in the upper school grades who have English language deficiencies. It now depends on the awareness of the classroom teacher who might find that a child is underachieving because of an English language deficiency. "Plan V," would not significantly change the method of identifying kindergarten students having difficulties in the English language.36
In its discussion of law applicable to the case, the Court noted that the Lau Remedies required a school district to:
(1) assess the language ability of the student;
(2) identify the nature and extent of the students' educational needs and utilize the most effective teaching style to meet those needs;
(3) implement the type of educational programs dependent upon the degree of linguistic proficiency of the students in question, and;
(4) train bilingual teachers. 7
The Court found that Project Avelino, as administered, violated both the EEOA and the Lau Guidelines. First, Spanish speaking students in the project were "kept separate and apart from English speaking students during music and art, in violation of the Lau Guidelines."38 Also, the program failed to provide for exiting students whose English language proficiency would enable them to understand regular English instruction. "Fifty-three students were retained in ProjectAvelino after it had served its mandated objective." To that extent, the administration of the was a perversion of the purpose and a misuse of funds.39
The Court held that "Plan V" also violated the rights of non-English speaking students since:
The underlying theory of "Plan V" is an immersion into English language and culture and a subordination of Spanish and Hispanic culture with a view towards accelerating the acquisition of English. This theory overlooks the declarations of Congress as embodied in Section 105(a)( 1) of the Bilingual Education Act, the statutory right of the non-English speaking child recognized under section 204 of the Equal Educational Opportunities Act of 1974, Section 601 Civil Rights Act of 1964, the teaching of Lau, and the suggestions of the Lau guidelines...Plan V is unacceptable. While integration is encouraged, there is no assurance that language deficient children in the upper grades will be identified. If they are, there is the continued threat of insufficient remedial assistance. For if a child cannot comprehend principles of math or science taught in the English homeroom, he will not be able to explain his or her problem to the bilingual teacher, in the Spanish basic skills room, who is expected to provide remedial help. Moreover, children continually in need of remedial assistance, who might spend more time in the basic skills room than they are scheduled for, run the risk of missing planned instruction thus further retarding their educational progress.40
Finally, the Court directed Brentwood to submit a plan in compliance with the Lau Guidelines. The Court recognized that the task was not an easy one:
The goal is instruction by competent bilingual teachers in the subject matter of the curriculum while at the same time teaching non-English speaking children the English language. The time limitation of the school day is an obstacle that may be overcome by both goals...
The Court listed specific provisions of the plan the district was ordered to develop. It must:
...contain more specific methods for identifying on admission those children who are deficient in the English language and for monitoring the progress of such children by the use of recognized and validated tests to ascertain achievement levels and proficiency in the English language. It should have a training program for bilingual teachers and bilingual aides. The program must be both bilingual and bicultural. It must provide a method for transferring students out of the program when the necessary level of English proficiency is reached. It should not isolate children into racially or ethnically identifiable classes, but it should encourage contact between non-English and English speaking children in all but subject matter instruction (in the earliest classes i.e., kindergarten and first grade, where subject matter is of lesser importance, the program should emphasize the need for contact between non-English and English speaking children).41
Rios v. Reed (1978)42
Ten months after the ruling in the Cintron case, another class action suit under Title VI and the Fourteenth Amendment came before the U.S. District Court for the Eastern District of New York. The suit was brought on behalf of 800 Puerto Rican students against the 11,000 student Pastchogue-Medford School District. As in Cintron, the Court ordered the school district to implement a plan in keeping with the Lau Remedies.
Among the deficiencies that the Court found in the district's "transitional bilingual program" for languageÄminority students were:
...that the supervisor of the bilingual education program did not speak Spanish, was unfamiliar with ESL, and had no education or training in bilingual education.
...school principals, responsible for evaluating bilingual teachers' performance, who were unfamiliar with bilingual teaching methods and did not understand Spanish.
...bilingual teachers who did not know Spanish; most lacked "formal training in the methodology of Spanish bilingual teaching.43
The Court made the following findings with regard to the district's "Transitional Program":
...As defendants view their obligation, it is to "teach the child to be able to read and write English within three years.
...Students with English language deficiencies are instructed in English with their English speaking counterparts unless the classroom teacher recognizes a need for bilingual instruction ...Often a student's language deficiency comes to the attention of a bilingual teacher only in an informal manner, e.g., in casual conversation among teachers at lunch...
...No textbooks in Spanish are available. English language deficient students receive an average of 40 to 50 minutes a day in subject matter instruction in Spanish and the remainder of the day in English...The school district's bilingual education program is basically a course in English. English is taught to Spanish speaking children during periods when their English speaking counterparts are instructed in science and social studies.44
The Court also found an absence of adequate testing and monitoring of students' English proficiency acquisition and a lack of adequate criteria and procedures exiting students from the "bilingual" program. The Court ordered the Pastchogue-Medford School District to design and implement a plan consistent with the Lau Remedies and specified provisions similar to those it prescribed for Cintron, above. It ruled:
plaintiffs' charge that they are being denied equal educational opportunity is not sufficiently answered by defendant's efforts to show that their program will eventually attain some desirable results. 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. While the District's goal of teaching Hispanic children the English language is certainly proper, it cannot be allowed to compromise a student's right to meaningful education before proficiency in English is obtained.45
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