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Bilingual Education - a Problem of Fordham Urban Law Journal Volume 5 | Number 3 Article 10 1977 Note: Bilingual Education - A Problem of "Substantial" Numbers Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Education Law Commons Recommended Citation Note: Bilingual Education - A Problem of "Substantial" Numbers, 5 Fordham Urb. L.J. 561 (1977). Available at: https://ir.lawnet.fordham.edu/ulj/vol5/iss3/10 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. BILINGUAL EDUCATION-A PROBLEM OF "SUBSTANTIAL" NUMBERS? I. Introduction It is generally agreed that learning English is essential to eco- nomic and social mobility in an English speaking society.' The Bil- ingual Education Act2 provides for the federal funding of compensa- 1. STAFF OF SENATE SELECT COMM. ON EQUAL EDUCATIONAL OPPORTUNITY, 92d Cong., 2d Sess., TowARD EQUAL EDUCATIONAL OPPORTUNITY 4 (Comm. Print 1972) [hereinafter cited as SEN. SELECT COMM.]. The United States Office of Education estimated in 1975 that at least five million children needed remedial English language programs. U.S. COMM'N ON CwIv RIGHTS, A BETrER CHANCE TO LEARN: BILINGUAL BICULTURAL EDUCATION 13 (1975) [hereinafter cited as A BETTER CHANCE TO LEARN.]. 2. 20 U.S.C. §§ 880b-880b-13 (Supp. V, 1975). The Bilingual Education Act, Title VII of the Elementary and Secondary Education Act, provides for aid to "local education agen- cies" or an "institution of higher education" that elects to participate in a compulsory lan- guage program. 20 U.S.C. § 880b-7 (Supp. V, 1975). Section 880b-7(a) provides: Funds available for grants under this part shall be used for- (1) the establishment, operation, and improvement of programs of bilingual educa- tion; (2) auxiliary and supplementary community and educational activities designed to facilitate and expand the implementation of programs described in clause (1), includ- ing such activities as (A) adult education programs related to the purposes of this subchapter, particularly for parents of children participating in programs of bilin- gual education, and carried out, where appropriate, in coordination with programs assisted under the Adult Education Act, and (B) preschool programs preparatory and supplementary to bilingual education programs ... In 1974 Congress expanded the eligibility requirements of the statute to include schools which did not have a high concentration of children from families with incomes less than $3000 a year or from families receiving social security benefits under the Aid to Families with Dependent Children Program. Act of August 21, 1974, Pub. L. No. 93-380, § 105(a)(1), 88 Stat. 503. The former requirements were found at 20 U.S.C. § 880b-2 (1970), which expired on June 30, 1975. In order to be eligible for federal funds, the local education agency or institution of higher education must enter into an agreement with the Commissioner of Education. 20 U.S.C. § 880b-7(b)(1) (Supp. V, 1975). The agreement can only be approved after the Commissioner has consulted with the state educational agency in order to achieve an "equitable distribution of assistance" within the state based on the following factors: (i) the geographic distribution of children of limited English-speaking ability, (ii) the relative need of persons in different geographic areas within the State for the kinds of services and activities described in [20 U.S.C. § 880b-7 (a)] of this section, (iii) with respect to grants to carry out programs described in [20 U.S.C. §§ 880b-7(a)(1)-(2)] of this section, and (iv) with respect to such grants, the relative numbers of persons from low-income families sought to be benefitted by such programs .... Id. § 880-7(b)(2)(A). An applicant for federal funds must also agree to abide by the HEW FORDHAM URBAN LAW JOURNAL [Vol. V tory language programs to assist children in learning English. Nu- merous class action suits have been instituted on behalf of language minority students against school districts to obtain these remedial programs.' These suits alleged violations of section 601 of the Civil Rights Act of 19641 (42 U.S.C. § 2000d), and the equal protection clause of the fourteenth amendment. Educators have proposed two main methods to compensate for the language deficiencies of non-English speaking students.' The first type of program is called the "English as a Second Language" (ESL) approach.7 ESL programs employ English as the language of instruction for courses such as science or social studies.' Addition- ally, in a typical ESL plan, non-English speaking students attend a class to develop their English language skills.' ESL programs are most beneficial to language minority children in a transitional stage from their native language to English.'" The second main plan, termed "bilingual/bicultural" education, is significantly different from the ESL approach." In a bilingual/ bicultural program, children are taught in their native language.'2 Under this program, children also receive instruction in English language skills as a separate class."3 Another distinguishing facet of the bilingual/bicultural approach is its emphasis on the re- tention of the child's native historical, literary and cultural tradi- tions." Advocates of the bilingual/bicultural program contend that the rejection of a child's native language and customs, in an attempt to teach him English, could result in a psychological trauma by guidelines. See 45 C.F.R. §§ 123.01-.63 (1976). The Commissioner must give priority in distributing funds "to areas having the greatest need for [compensatory language] programs .... 20 U.S.C.. § 880b-7(c) (Supp. V, 1975). 3. See text accompanying notes 43-74 infra. 4. Civil Rights Act of 1964, 56d, 42 U.S.C. § 2000d (1970). 5. U.S. CONST. amend XIV, § 1. 6. Inequality in Education, Harv. Center for Law and Educ., Feb. 1975, at 35. 7. A BETTER CHANCE TO LEARN, supra note 1, at 22. 8. Id. 9. Id. 10. See Grubb, Breaking the Language Barrier: The Right to Bilingual Education, 9 HARv. C.R.-C.L. L. Rxv., 56 (1974). 11. SEN. SELECT COMM., supra note 1, at 287. 12. A BETTER CHANCE TO LEARN, supra note 1, at 29. 13. Id. 14. SEN. SELECT COMM., supra note 1, at 286. 19771 NOTES 563 making the child feel inferior.'5 Thus, educators favor the bilin- gual/bicultural approach when the student does not have the ability to use English in his studies.'6 Even though the Supreme Court in Lau v. Nichols" held that language minority students are entitled to receive compensatory language instruction under 42 U.S.C. § 2000d, several courts have concluded that this decision does not require a federally funded school system to implement special language programs in every case.'8 This Note will examine the rights of non-English speaking children under section 2000d and under the equal protection clause of the fourteenth amendment. II. The Right to a Compensatory Language Program In Lau v. Nichols'9 a class action was brought on behalf of non- English speaking Chinese students against defendant officials of the San Francisco Unified School District. The existing program of in- struction in defendants' school district did not accommodate all of the Chinese students who required special English instruction. '" Petitioners alleged that this unequal educational opportunity vio- lated 42 U.S.C. § 2000d and the equal protection clause of the four- 2 teenth amendment. ' The Ninth Circuit Court of Appeals, in affirming the district court's decision,' 3 found that the petitioners did not state a valid cause of action under section 2000d or the equal protection clause.', The court of appeals disposed of the petitioners claim under 42 U.S.C. § 2000d without an opinion.25 In rejecting the petitioners' 15. Id. 16. A BETTER CHANCE TO LEARN, supra note 1, at 78. 17. 414 U.S. 563 (1974). 18. See text accompanying notes 45-74 infra. 19. 414 U.S. 563 (1974). 20. Id. at 564. 21. Id. at 564-65. The majority opinion, before addressing the merits, noted that petition- ers did not request any specific relief. Rather, petitioners asked that defendant school officials be ordered to recognize and make a good faith effort to alleviate the problem. Id. 22. 483 F.2d 791 (9th Cir. 1973). For a discussion of the Ninth Circuit's decision in Lau, see 2 FORDHAM URBAN L.J. 122 (1973). 23. Civ. No. C-70 627 (N.D. Cal., May 26, 1970). 24. 483 F.2d at 797. 25. Id. at 794 n.6. Plaintiffs' cause of action based on section 2000d relied on the third party beneficiary rationale of Lemon v. School Bd., 240 F. Supp 709, 713 (W.D. La. 1965), aff'd, 370 F.2d 847 (5th Cir.), cert. denied, 388 U.S. 911 (1967). FORDHAM URBAN LAW JOURNAL [Vol. V claim under the equal protection clause, the court stated: "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."2 Therefore, the Ninth Circuit held that the defendants had no duty to take any affirmative steps to correct inequalities over which they had no control, since the peitioners were receiving the same education on the same terms as other students within the school district.27 Mr. Justice Douglas, writing for the majority of the Supreme Court, found that the inability of the Chinese students to under- stand English foreclosed them from a meaningful education.
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