One way to better understand today’s issues in schools is to know the history of how we got here. Today, we’ll hear about the landmark supreme court case; Lau v. Nichols, that established that bilingual students have the right to equal educational opportunities and a meaningful education. In this excerpt from his audiobook, Elevating Equity and Justice: 10 U.S. Supreme Court Cases Every Teacher Should Know, former civil rights attorney Robert Kim tells the story of why the Laus and other Chinese American families sued the San Francisco Unified School District 50 years ago and how their victory has shaped today’s schools. 

Below is a transcript of the episode:

Brett:

Hi, this is Brett from Heinemann. Thanks for joining me on the commute today. One way to better understand today's issues in schools is to know the history of how we got here. Today we'll hear about the landmark Supreme Court case, Lau v. Nichols, that established that bilingual students have the right to equal educational opportunities and a meaningful education. In this excerpt from his audiobook, Elevating Equity and Justice: 10 U.S. Supreme Court Cases Every Teacher Should Know, former Civil Rights attorney, Robert Kim, tells the story of why the Laus and other Chinese American families sued the San Francisco Unified School District 50 years ago and how their victory has shaped today's schools.

Robert Kim:

Case six: Lau versus Nichols, 1974. English learners are entitled to equal educational opportunity and a meaningful education. Just a note about the term English learner. I use the term English learner or EL for students learning the English language because it's the term predominantly used in law and policy today. Until quite recently, the most commonly used term was limited English proficient or LEP student. Today, many educators prefer terms like emergent bilingual or emerging bilingual that more accurately describe EL students' language ability and educational path. Let's get back to the case and a little preface about me.

I was born in the United States just a few years after my parents immigrated from South Korea. They almost opted to move to San Francisco where the Lau versus Nichols case originated and which had a military base at the time. My dad was a doctor who got fast track citizenship by working in the US military, but they went to Pennsylvania instead and soon afterward settled in what was then a relatively rural part of New Jersey where no one looked like me, much less spoke Korean. My parents decided that they would raise me speaking English only. I attended an almost all white school with no English learner program or population. I wonder what would've happened if my public school had been equipped to educate a bilingual or multilingual child. What if I had lived somewhere where the majority of kids spoke another language at home? What if I had been Kinney Lau?

Kinmon or Kinney Lau was born in Hong Kong. In 1969 when Kinney was five, he and his mother moved to San Francisco where they were later joined by his father, a carpenter. Kinney attended Jean Parker Elementary School near San Francisco's Chinatown where nearly every student was of Chinese descent. He spoke little English and received no specialized English language or bilingual instruction at school. At the time, of the 2,856 students of Chinese ancestry in San Francisco school system who did not speak English, only 1000 were afforded supplemental courses in the English language. Even by 1973, years after the Lau case was filed, less than half of the Chinese students needing special English instruction in San Francisco were receiving it. California law stated that, "English shall be the basic language of instruction in all schools and that it is the policy of the state to ensure the mastery of English by all pupils in the schools."

In fact, the state forbade students who did not meet the standards of proficiency in English from receiving a high school diploma. Edward Steinman was an advocate working in the Chinatown office of the San Francisco Neighborhood Legal Assistance Foundation in the late 1960s. Steinman happened to be representing Kinney's mother, Kam Wai Lau, in a landlord tenant dispute. He knew that she and her son spoke no English and that Kinney had no access to special language programs at school. He asked Ms. Lau to have her son participate in a class action lawsuit against the school district. She agreed. Kinney Lau's name was placed first in a list of 13 plaintiffs in the suit that became Lau versus Nichols.

The case. The Laus and other Chinese families sued the San Francisco Unified School District in 1970, charging that the district's language policy failed to provide appropriate language instruction to children in the district who spoke only Cantonese and violated both the students' rights to equal protection under the 14th amendment of the US Constitution and Title VI of the Civil Rights Act of 1964. The case made its way up to the US Supreme Court, which in 1974 unanimously held in favor of Lau and the other plaintiffs. The court cited federal civil rights regulations, specifying that quote, "Where inability to speak and understand the English language excludes national origin minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students."

The decision. The Supreme Court in January 1974 unanimously reversed the decision of the lower appellate court, which had ruled in favor of the San Francisco School District. The Supreme Court held that the school district violated Title VI of the Civil Rights Act of 1964, a federal anti-discrimination statute, by not offering non-English speaking students any special programs to learn English and receive a meaningful education. The court chose not to address the plaintiff's constitutional claim that the district violated the right to equal protection. The case was sent back to the lower court to determine an appropriate course of action for San Francisco ELL students impacted by the decision. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin in any program or activity receiving federal financial assistance. All public schools and many private schools receive federal aid and must comply with Title VI as a condition of receiving that aid.

Senator Hubert Humphrey, during the floor debates on the Civil Rights Act of 1964, famously explained, "Simple justice requires that public funds to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination."

Making history. Few would argue with the importance of the Lau decision in changing the landscape for English learner students in San Francisco, which now offers a variety of bilingual and bicultural programs for thousands of ELs, and in the other districts around the country, which adopted Lau plans to meet the needs of its limited and non-English speaking students. Nevertheless, Kinney Lau, who now goes by Ken and speaks flawless English, is apparently a "reluctant poster child for bilingual education", perhaps because he never benefited from it him himself. Even after he won in court, most of San Francisco's ESL and bilingual classes remained insufficient and poorly designed. By the time dual language instruction was introduced, he was too old to receive it.

So how did his English get so good? "By watching American television," he said. But Lau appears to acknowledge the benefits of specialized instruction for other English learners saying, "If you throw EL students in the classroom and tell them to sink or swim, there's a much bigger probability that they're going to sink. The thing about America is that if you're not native Indian, then you're an immigrant by default. People risk so much to come here. I think they should be able to retain their language and their culture."

Important concepts. The relevant federal civil rights regulations that the Lau court relied upon included one that directed districts to take affirmative steps to aid students whose inability to speak and understand English excluded them from effective participation in the educational program offered by a school district. So the important concept you need to know for this case is effective participation. One of the main challenges of educators of EL students is to ensure that EL students do not lose out on years of learning in a variety of domains and subjects, while they also develop their English language skills. The court in Lau seemed to harp on this point saying, "Basic English skills are at the very core of what these public schools teach. In position 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."

And so Lau established that ELs must not be siloed into a kind of permanent separate track of education. Effective participation means that they must be provided a meaningful opportunity to receive instruction and to engage in the classroom just like other students. It also makes clear that education of ELs is not to be equated with or limited to English language instruction alone. Subsequent regulations and judicial decisions have reinforced and helped to enforce the concept of effective participation for ELs in curriculum and instruction.

Implications for educators and schools. The court did not specify in Lau what type of EL instruction or intervention would satisfy civil rights laws. That further direction has come from subsequent statutes, judicial opinions, and guidance. Among the many important decisions educators must make in educating English learners, three critical junctures stand out. One, correctly identifying who is an EL as soon as possible. Two, determining what instruction or program is appropriate for ELs. And three, exiting ELs from specialized instruction at the right time. To identify potential ELs, ensure your school is effectively implementing a valid home language survey in relevant languages. Once students are identified as potential ELs, use a valid and reliable assessment such as a placement or screener test to determine if they are indeed ELs.

Assess EL programs and services using the three-step Castaneda test described earlier and other evaluation techniques. Ensure that EL programs are designed to enable ELs to attain both English proficiency and equal participation in the school's standard instructional program within a reasonable length of time. Monitor and regularly assess the progress of ELs. Use valid assessments and criteria to determine whether students are ready to exit EL programs and services, and continue to monitor students to determine whether they have exited prematurely.

Classroom and community voices. This comes from Liz Kleinrock, who is an elementary school teacher in California. Liz says, "My school recently started administering the English language proficiency assessments for California. In California, it's mandated that emerging bilingual or EB students receive 30 minutes of direct language instruction per day, so my school created academic clubs. The purpose of these clubs is to ensure that EB students are not pulled out of their classroom. We don't want them to miss out on activities that other students get to participate in. Every day for 30 minutes, we mix students across grades and classes for enrichment based academics that target specific needs. We group EB students based on their state assessment scores. For example, I currently teach a level three EB club through the lens of oral storytelling and use a curriculum provided by a popular storytelling podcast alongside English language assessment standards and guided by state assessment data."

Recent developments. Depending on how you look at it, a trio of legal developments have either A, given schools a lot more breathing room to educate ELs as they see fit, or B, undermine the principle articulated in Lau that ELs must be afforded an equal and meaningful education. Number one, in 2001 in Alexander versus Sandoval, the Supreme Court held that individuals no longer have the right to sue under Title VI of the Civil Rights Act, as was the case in Lau, for actions that had the effect of harming English learners or other students on the basis of race or national origin, but do not amount to intentional discrimination. Much of the basis for the Lau decision was not that school officials intended to harm English learners, but that the effect or impact of its policies and practices caused harm. Federal agencies, however, still have the ability to enforce Title VI against schools for actions that have a discriminatory effect or impact.

Number two, in 2009 in Horne versus Flores, the Supreme Court held that under the Equal Educational Opportunities Act enacted by Congress in 1974, "appropriate action by school districts does not necessarily require any particular level of funding for EL services or instruction, and that states and school districts should be given latitude as to whether they are taking appropriate action with respect to EL services and instruction".

Number three. In 2015, the Every Student Succeeds Act or ESSA, which replaced the No Child Left Behind Act or NCLB, was enacted by Congress. ESSA provides grants to states and districts for EL programs. It also requires states and districts to assess the progress of English learners in English language proficiency as well as in math, reading, and science. However, states and districts have much more autonomy under ESSA than under NCLB as to how or when to impose reforms when ELs fail to make academic progress in particular schools.

Getting more information. Here's a list of national level organizations that provide more in-depth information or further resources on educating English learners. This list is not exhaustive. You may also wish to look up state and local resources, including resources offered by your own school district. Colorin Colorado at colorin, spelled C-O-L-O-R-I-N, colorado.org. The Migration Policy institute at migrationpolicy.org. The National Association for Bilingual Education at nabe.org. The National Clearinghouse for English Language Acquisition at ncela.ed.gov. The US Department of Education at ed.gov. This website has several resources such as the English Learner Toolkit, Civil Rights Obligations to English Learner Students, and the ESSA Guidance on English Learners and Title III Programs.

Brett:

Reflecting on our history steadies our compass. As Bob quotes from Ken Kinney Lau, "People risk so much to come here. I think they should be able to retain their language and their culture." If you'd like to hear more from Bob's book, you can stream or download his audiobook wherever you get your audiobooks. Thanks for listening, and let us know what you'd like to learn more about in our time together. You can also learn more about Heinemann's audiobooks at heinemann.com/audiobooks.

Robert (Bob) Kim is a leading expert in education law and policy in the United States.

A former civil rights attorney, Bob is the co-author of Education and the Law, 5^thed. and Legal Issues in Education: Rights and Responsibilities in U.S. Public Schools Today (West Academic Publishing, 2019 & 2017). He also wrote Let’s Get Real: Lessons and Activities to Address Name-calling & Bullying (Groundspark, 2004) and has advised thousands of educators on civil rights and school climate issues in public schools.

Bob currently serves as an education adviser and consultant on civil rights and equity issues. Through 2019, he was the William T. Grant Distinguished Fellow at Rutgers University, where he conducted research on school finance and education equity in U.S. public schools. 

From 2011 through 2016, he served in the Obama Administration as Deputy Assistant Secretary in the U.S. Department of Education Office for Civil Rights, which enforces federal civil rights laws in K-12 and postsecondary institutions nationwide. 

He has also served as a senior policy analyst at the National Education Association, where he advised school personnel on human and civil rights issues and worked to replace the No Child Left Behind Act. 

Earlier in his career, as a staff attorney at the American Civil Liberties Union of Northern California, Bob engaged in litigation and advocacy pertaining to race, criminal and juvenile justice, bullying and harassment, LGBT rights, and student rights.

Bob holds a BA from Williams College and an JD from Boston College Law School. 

You can find Bob on Twitter @bob__kim.