Legal Rights of Linguistic Minorities

First submitted September 13, 2014 to Peoples College of Law

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"We therefore live in a period where the prevailing Zeitgeist is at least receptive to the notion that we do not have to be identical ethnically or linguistically." — Dr. Fernand de Varennes

In an era where right-wing millionaires use their obscene wealth to finance arch-reactionary legal firms like Gibson, Dunn & Crutcher to craft deceptive causes of action to destroy academic freedom, students' access to experienced instructors, and workers' rights in the shape of the horrific Vergara decision, it's somewhat hard to recall that occasionally the law is used to help, rather than harm, the remaining institutions of public education.

In the past, when civil rights were more vigorously defended than David F. Welch's "corporate rights," a public interest attorney represented one of our most marginalized groups: English Language Learners (ELL) in a landmark case — Lau v. Nichols. The case and its implications for the rights of linguistic minorities are discussed below ["infra" in legal parlance]. Today, we see ongoing attacks against both ELLs and any language program besides mainstream English. A perfect example is that of neoliberal reactionary Marshall Tuck, a candidate for California State Superintendent of Instruction. Tuck, a graduate of anti-public education activist billionaire Eli Broad's Broad Residency, is best known for shuttering all the heritage language academic programs, and most of the dual language immersion programs at the schools he ran.

This year marks the fortieth anniversary of the Supreme Court decision on rights of linguistic minorities. While the promise of Lau is still yet unrealized, the recognition of language rights in the midst of our "white supremacist capitalist patriarchy" is still something to take notice of. United Teachers Los Angeles (UTLA) Bilingual Education Committee commissioned the following public service announcement flyer, the text of which is also reproduced here. The prose was written by UTLA's Director of Bilingual Education, Cheryl Ortega. Flyer design was by education activist Robert D. Skeels, who is also a first year law student at Peoples College of Law.

In 1974, the attorneys for Kenny Lau and 1800 Chinese speaking students sued the San Francisco School District on the grounds that these students were not receiving equal access to an education by virtue of their inability to comprehend English. The unanimous decision of the US Supreme Court - "Under 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."

The attorney for Kenny Lau and 1800 Chinese students in San Francisco successfully argued that "Taking people who are the same and treating them differently is one type of discrimination but taking people who are different and treating them the same, is subtler, but, is equally discriminating."

Language Rights are Civil Rights protected by the 14th amendment to the US Constitution.

40th Anniversary of the Supreme Court Decision on Rights of Linguistic Minorities

Letters to the NYTimes

The recent coverage by the Times on ELL students in American schools produced these insightful responses (ht to Bob Schaeffer at ARN):

To the Editor:

Applying one-size-fits-all state exams and the No Child Left Behind law to immigrant children results in narrowed curriculums, endless test prep and arbitrary declarations of school failure. Increasing percentages of students are denied a quality education, which benefits neither the students nor society.

Policy makers must face the reality of the country’s public school population and revise testing mandates accordingly. In particular, the law’s goal of 100 percent proficiency by 2014 is impossible when so many non-English-speakers enter our schools every year.

President Obama and Secretary of Education Arne Duncan should consider these realities when proposing legislation to “fix the failures of No Child Left Behind” as promised in last fall’s campaign.

Jesse Mermell
Executive Director, FairTest
Boston, March 15, 2009

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To the Editor:

What a disgrace that the talented Ginette Cain, who directs the high school program for English learners in your article, needs to waste valuable class time teaching immigrant students how to memorize disjointed facts so they will pass required standardized tests.

Public education in the United States has so much to offer students — from social assimilation to the ability to achieve personal and economic success — yet these opportunities are being lost because of high-stakes testing.

This is the time to return to the education of the whole student.

Elizabeth Ball
Glenview, Ill., March 15, 2009

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To the Editor:

I thought we’d pretty well settled in 1954 that segregation’s stigma was not something American schools should perpetuate. But your article’s more distressing image was the teacher informing her charges: “You don’t really need to know anything more about the Battle of Britain, except that it was an air strike. ... If you see a question about the Battle of Britain on the test, look for an answer that refers to air strikes.”

No wonder dropout rates are high. It appears that the testocracy that runs our schools has turned even the most vital, engaging stories of human history into an exercise akin to memorizing phone books.

If I were still in high school, I might find something better to do with my time, too.

Sara Mayeux
Palo Alto, Calif., March 15, 2009

Educating Immigrants in Anticultural Schools

A clip from an in-depth news article from the NYTimes:

. . . . Hylton High, where a reporter for The New York Times spent much of the past year, is a vivid laboratory. Like thousands of other schools across the country, it has responded to the surge of immigrants by channeling them into a school within a school. It is, in effect, a contemporary form of segregation that provides students learning English intensive support to meet rising academic standards — and it also helps keep the peace.

In a nation where most students learning English lag behind other groups by almost every measure, Hylton’s program stands out for its students’ high test scores and graduation rates. However, at this ordinary American high school, in an ordinary American suburb at a time of extraordinary upheaval, those achievements come with considerable costs.

The calm in the hallways belies resentments simmering among students who barely know one another. They readily label one another “stupid” or “racist.” The tensions have at times erupted into walkouts and cafeteria fights, including one in which immigrant students tore an American flag off the wall and black students responded by shouting, “Go back to your own country!”

Hylton’s faculty has been torn over how to educate its immigrant population. Some say the students are unfairly coddled and should be forced more quickly into the mainstream. And even those who support segregating students admit to soul-searching over whether the program serves the school’s needs at the expense of immigrant students, who are relentlessly drilled and tutored on material that appears on state tests but get rare exposure to the kinds of courses, demands or experiences that might better prepare them to move up in American society.

“This is hard for us,” said Carolyn Custard, Hylton’s principal. “I’m not completely convinced we’re right. I don’t want them to be separated, but at the same time, I want them to succeed.”

Education officials classify some 5.1 million students in the United States — 1 in 10 of all those enrolled in public schools — as English language learners, a 60 percent increase from 1995 to 2005.

Researchers give many causes for the gaps between them and other groups. Perhaps most paradoxical, they say, is that a nation that prides itself on being a melting pot has yet to reach agreement on the best way to teach immigrant students.

In recent years, students learning English have flooded into small towns and suburban school districts that have little experience with international diversity. Meanwhile, teachers and administrators have come under increasing pressure to meet the requirements of the federal No Child Left Behind Act, which links every school’s financing and its teachers’ jobs to student performance on standardized tests.

The challenges have only intensified with a souring economy and deepening anger over illegal immigration, provoking many Americans to question whether those living here unlawfully should be educated at all.. . .

Illinois Students Required to Take Test They Can't Read

It is interesting to note that Chicago Schools Chief, Arne Duncan, engages here in a transparent bit of grandstanding on this issue. Who is he trying to impress with his "last minute" appeals to the State? Surely it is the Latino parents of Chicago, who will hopefully react by staging a citywide and statewide boycott of this insanity. Did Duncan only recently learn about the fact that the state will require English learners to pass a test they can't read, or did he wait until he knew it was too late to file his protest? Great job, Arne.

Parents of Illinois need to take their children to the street for the civics lessons they are not getting in the chain gang test factories that are preparing their children to compete in that part of the global economy that sees Chinese workers working 300 hours a month for $200? Civil disobedience will prove the only antidote to this poison.

From the Chicago Tribune:

Spanish-speaking public school students will have to take standardized tests in English beginning Tuesday, after the state rebuffed a last-ditch effort by Chicago Public Schools to delay the testing.

Chicago Public Schools chief Arne Duncan blasted the state Monday for moving forward with the Illinois State Achievement Test, even for students who are more fluent in Spanish.

State officials have said they have no choice, since federal education officials said that a Spanish-language alternative, the IMAGE test, is not adequate.

Duncan said that as a result of the state's refusal to delay the test, the district will not use the results of the ISAT exams as a condition for students to advance to the next grade. Students instead will be evaluated on their attendance, course work and test grades during the school year.

Duncan said that on Friday, U.S. Department of Education officials gave Illinois State Board of Education officials the permission to delay the ISAT exam for the English language learners, but state officials refused. . . .

Testing Boycott in Illinois

Posted on Common Dreams:

Published on Friday, February 22, 2008 by The Daily Herald (Illinois)

Boycotting NCLB: In Effort To Protect Students Illinois District Will Refuse Test Dist. 93 Against Giving Tests To Kids Still Learning English

by Emily Krone

A DuPage County school district could be the first in Illinois — and perhaps the nation — to refuse to administer mandatory state exams to students who haven’t yet mastered English.

The boycott by Carol Stream Elementary District 93 would be an act of civil disobedience against the state’s decision to force English learners to take the same tests as their fluent peers.

Nearly 10 percent of the district’s 4,300 students were categorized as having limited English skills in 2007.

The federal No Child Left Behind law requires that all public schools annually test all students in select grades.

District 93 officials say they’re willing to break the law this spring to shield students from the frustration and humiliation of taking an exam not designed for them.

“The board believes it’s appropriate to do that,” District 93 Superintendent Henry Gmitro said. “While there may be consequences for the adults in the organization, we shouldn’t ask kids to be tested on things they haven’t been taught.”

Illinois dropped the test that was designed for English learners this fall, after the U.S. Department of Education made a final ruling that the test wasn’t an adequate measure of state learning standards. The old test was written in simpler English.

As a stopgap measure, English learners will take standard assessments with some special accommodations, such as extended time and audio recordings, while Illinois develops a test that will meet federal guidelines.

Politicians and educators throughout Illinois have aggressively opposed the move, predicting it will cause districts to fail and face serious sanctions under the federal accountability law.

A group of Chicago parents plans to keep their children home during the March testing, while local school officials have petitioned state lawmakers for a one-year reprieve for English learners. And, some other superintendents say they also would consider a boycott.

But District 93 administrators are the first school employees to say publicly they will not administer the test to some students, Illinois State Board of Education spokesman Matthew Vanover said.

Indeed, the district could be the first in the nation to mount this type of challenge, though others have rejected federal money in order to opt out of the high-stakes tests.

A Wisconsin teacher made national news last year when he protested the emphasis the law places on standardized testing by refusing to administer the exams — for a single day. Threatened with termination, he proctored the exams the second day.

“The frustration is widespread, but this action is unique, to the best of my knowledge,” said Robert Schaeffer, public education director for the National Center for Fair and Open Testing.

Schaeffer said his group supports parents, students and educators who take such stands, but does not push them to do so because of the risks.

Vanover said he couldn’t speculate on what penalties the state might hand down.

“We would encourage them to move forward with the testing and give these students an opportunity to share what they have learned,” Vanover said. “And once those students have done that to best of their ability, the test should end.”

Though the law says the test must be administered, it doesn’t stipulate that students must finish the test.

U.S. Department of Education spokesman Chad Colby said a boycott could jeopardize the district’s federal funding. And, he said, it would undermine the law’s intent, which is to hold schools accountable for what students learn.

District 93 received about $631,000 from federal sources during the 2005-06 school year, slightly more than 1 percent of its total revenue.

Other suburban school officials said they would consider a boycott as they continue to weigh their options.

The Marquardt Elementary District 15 school board in Glendale Heights has authorized Superintendent Loren May to make the final decision on whether to administer the tests.

“There’s no clear pathway on what may or may not happen,” May said. “It’s about making a decision about what’s best for the children.”

© 2008 The Daily Herald