Education Week - February 7, 2024 - 13

district as doing the best it could
with available resources to provide
language instruction to its growing
number of Chinese-, Japanese- and
Spanish-speaking students.
" Under the equal-protection clause,
... the school district [does not have]
the constitutional duty to provide
such instruction, " he said. " San Francisco
would attempt to cover all if it
had the resources with which to do
it, that is the inclination of the board
of education. However, they have not
moved up on the complete coverage
of all these children because of the
other requirements of the budget. "
O'Connor also argued that Title
VI and the HEW regulations did not
impose a duty on the school district to
provide additional instruction.
" No Chinese-speaking child is discriminated
against in any of these
courses, " he said. " He has the same
education as others. He may not be
able to benefit by it as much, but it is
not up to the HEW to determine what
effect this has. "
Behind the scenes, some quick
agreement by the justices
The justices met to discuss the case
in their private conference on Dec. 12,
1973, and all evidence suggests they
quickly coalesced in favor of the students
on the basis of Title VI, not the
equal-protection clause.
Chief Justice WarrenBurger assigned
the opinion to Justice William
O. Douglas, who was appointed to the
court by President Franklin D. Roosevelt
in 1934 and would retire from
the bench in 1975.
Based on the Lau case files of Douglas
and Justice Harry Blackmun at the
Library of Congress, Douglas circulated
a draft opinion to his colleagues
by Christmas. The opinion focused on
Title VI, but the draft included a discussion
of the equal protection issue.
That gave some of his colleagues
pause.
" My notes indicate that the consensus
was to decide this case on
the basis of the statute rather than
on constitutional grounds, " Blackmun
wrote in a memo to Douglas on
Dec. 26. " Perhaps I am mistaken. I
remain reluctant to pursue the equal
protection route here and shall defer
my vote pending expressions from
the others. "
After Douglas circulated another
draft, Burger wrote him a similar missive
on Jan. 2, 1974, saying, " I will be
unable to join any disposition that
goes beyond the statute. "
Justice Byron White wrote to Douglas
the same day, saying, " The equal
protection thesis still shows through
... too much for me to join. "
Justice Lewis Powell wrote to Douglas
on Jan. 9, saying he expected to
sign on to the opinion, but he was
worried about a reference in the draft
opinion to Brown v. Board of Education
that might lead to other groups of
students suing their school districts on
equal protection grounds.
" I know from my own 11 years service
on a school board that it is impossible
to make available to all students
at the same time all improvements,
advanced techniques, and specific
educational opportunities, " said Powell,
who had served on the Richmond,
Va., school board and later the Virginia
state board of education.
Douglas agreed to eliminate the reference
to Brown and his discussions of
the equal protection clause. He soon
had the votes of Powell as well as Justices
William Brennan Jr., Thurgood
Marshall, and William Rehnquist.
That was enough to give Douglas's
opinion the weight of speaking for a
majority of the court.
Douglas's majority opinion was a
mere six pages in print. He referred to
a provision of California's education
code that requires students to meet
proficiency in English to graduate
from high school, as well as the state
code's compulsory requirement to attend
school.
" 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, "
Douglas wrote.
" 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, " Douglas continued.
" We know that those who do
not understand English are certain
to find their classroom experiences
wholly incomprehensible and in no
way meaningful. "
Douglas couched the opinion in
Title VI and the HEW guidance.
" It seems obvious that the Chinesespeaking
minority receive fewer benefits
than the English-speaking majority
from [the San Francisco] school
system which denies them a meaningful
opportunity to participate in the
educational program-all earmarks
of the discrimination banned by the
regulations, " Douglas said.
The court reversed the 9th Circuit's
judgment and sent the case back to
the lower courts " for the fashioning
of appropriate relief. "
The other four justices all concurred
with the outcome, but they
did not join the majority opinion,
despite Douglas having eliminated
most discussion of the equal-protection
clause. Justice Potter Stewart
wrote an opinion concurring in
the judgment, joined by Burger and
Blackmun, while Blackmun wrote his
own concurrence joined by Burger.
White joined in the outcome without
signing any opinion.
A slow but eventually significant
impact
The decision was a significant victory
for the students, but when it was
released Jan. 21, 1974, some in the
Chinese community in San Francisco
misinterpreted it, Steinman said, with
some believing it would lead to desegregation-type
busing.
The case was sent back to the same
federal district judge in San Francisco
who had thrown out the case for the
development of a remedial plan.
Steinman said the judge remained
hostile to the student's case and
dragged his heels, as did the school
system.
But by the fall of 1975, there was a
consent decree approving a plan developed
by a citizens' task force. The
plan included bilingual education and
other approaches not just for native
Chinese and Spanish speakers, but for
other language minorities in the system,
including students of Japanese,
Korean, and Filipino descent.
Kinney Kinmon Lau did not directly
benefit from those programs. But in a
1984 interview with Education Week,
he said he eventually learned English,
partly from watching TV.
" The shows on TV are more or less
how the society speaks, " he said in
that interview.
Lau changed his first name to
Kenny, and later to Ken, and eventually
graduated from San Francisco
City College with a degree in computer
programming. In a 2002 interview
with The Boston Globe, he
seemed ambivalent about his role in
the case and about the strategies used
to teach students English.
" I don't know if bilingual education
is better-I'm still trying to work it
out, " he told the Globe.
Throughout the nation, the Lau
decision did help promote bilingual
education for English learners.
HEW developed what became
known as the " Lau remedies, " detailed
guidelines to help districts
comply with the decision. But the
guidelines remained informal and
they were challenged on administrative
law grounds by school districts in
Alaska. HEW agreed to withdraw the
guidelines and develop a formal regulation,
subject to public comment.
By this time, it was late in President
Jimmy Carter's tenure and the new
U.S. Department of Education, established
by Congress in 1979, held
contentious hearings that began to
show the seeds of a backlash movement
against bilingual education. The
Lau-inspired regulation was never finalized
before Carter left office, and
President Ronald Reagan's administration
quickly backtracked when he
took office in 1981.
Earlier, Congress in 1974 had
passed the Equal Educational Opportunities
Act, a measure motivated by a
desire to rein in court-ordered busing
but which included a provision that
codified Lau in part by requiring states
" to take appropriate action to overcome
language barriers that impede
equal participation by its students in
its instructional programs. "
" The Equal Educational Opportunities
Act held out the prospect that students
who were deprived of help had
the right to sue, " said Moran, of Texas
A&M University law school.
Some federal appeals court and
Supreme Court decisions since the
1980s have made it more difficult to
sue for compensatory relief or disparate-impact
discrimination under
Title VI. And the high court has issued
only one decision directly stemming
from Lau and the EEOA.
Salomone said Lau has been " iconic
for the idea that all children are entitled
to a meaningful education. If
they don't understand what's going
on in the classroom, they are being excluded.
I believe that's very powerful. "
How Lau v. Nichols
Still Impacts
English-Learner
Education
Fifty years ago Lau v. Nichols
required schools to provide
language support to English learners
to ensure access to public education
By Ileana Najarro
English learners, or students in need of support to improve their
English-language proficiency, comprised about 10 percent of the
overall national public school student population as of 2020.
Over the last 50 years, these students saw an evolution in schools'
legal responsibilities to them, the type of instruction they receive, and
the assessments used to measure their linguistic and academic progress.
Even the terms used to legally identify this student population
transformed. But exactly how well districts meet English learners'
linguistic, academic, and social-emotional needs still varies widely
across and within states.
One key turning point, researchers say, is the U.S. Supreme Court
decision in the case of Lau v. Nichols, delivered Jan. 21, 1974.
The case, brought forth by Chinese American families against the
San Francisco Unified School District, focused on the district's failure
to provide language support to thousands of Chinese-speaking students
in mainstream classrooms.
The court argued that to deny English-language support to students
in need of it would constitute discrimination under Title VI of the Civil
Rights Act of 1974. Without such support, it concluded, students had
limited access to federally funded mainstream education. It addressed
the need for equitable resources to ensure access to equal education,
researchers said.
Lau became a landmark ruling for federal English-learner policy
and legislation. But as with the 1954 Brown v. Board of Education of
Topeka decision on racial segregation in schools, researchers debate
how effective the implementation and enforcement of the ruling
has been.
" I would compare Lau with Brown, where it's, yes, important,
but we're more segregated today than we were in 1954 in terms of
public schools, " said Oscar Jimenez-Castellanos, a senior research
fellow at Claremont Graduate University whose work has focused
on education policy and finance equity for traditionally marginalized
populations.
Ahead of Lau's 50th anniversary, and a Jan. 22 online event hosted by
Claremont Graduate University and sponsored by a number of leading
English-learner research groups commemorating the case, researchers
spoke with Education Week about the ruling's legacy and the work that
remains to ensure all English learners receive high quality linguistic
and academic instruction.
The policy legacy of Lau
Before Lau, federal policy was not as directive in terms of what
school districts and states had to do concerning English learners,
researchers said.
Congress passed the Bilingual Education Act in 1968, and the
resulting Title VII of the Elementary and Secondary Education
Act offered districts grants toward bilingual education programs.
But there was no federal requirement for districts to develop such
programs, said Kenji Hakuta, professor emeritus of education at
Stanford University and expert on English-learner policy and bilingualism.
Lau
itself did not prescribe any particular type of language support
for English learners.
After Lau was codified into federal law through the 1974 Equal
Educational Opportunities Act, the U.S. Department of Health,
Education, and Welfare-the precursor to the federal Education
Department-created what was called " Lau remedies. " The office
offered bilingual education as a possible remedy to schools found
in violation of Lau, Hakuta said. This never became official federal
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