Demanding More: Legal Standards and Best Practices for English Language Learners

Abstract

In the current english-only programs in California, Arizona, and Massachusetts only a small percentage of students are learning English and subject matter content. This violates the success in practice prong of Castañeda v. Pickard (1981). Further, these program failures bolster the claim that these programs also violate castañeda's sound theory and qualified expert support prong. Previous legal actions focused on the latter requirement and failed. Focusing on program failure creates a greater likelihood of successful legal challenge. This article calls for a change in interpretation of ELL rights and program requirements based on the majority consensus of best practices research.

Notes

¹While this article was in press, the Supreme Court decided Horne v. Flores, 557 U.S. __ (2009). In 2000, the federal district court had determined that Arizona was in civil contempt for failing to adequately fund its English language learner (ELL) programs, in violation of the Equal Educational Opportunities Act (EEOA). Arizona appealed and, in a 5–4 opinion, the majority held that changes in the Arizona education system beyond just funding levels for its ELL program may demonstrate that Arizona is providing sufficient support for ELLs to meet the EEOA requirements. The Supreme Court remanded the case back to the district court to make related factual and legal findings. This article provides guidance on the standard the court should use in making these determinations, as well as guidance on other legal actions.

²These include three meta-analyses (August & Shanahan, 2006; Rolstad et al., 2005; and Slavin & Cheung, 2005) and a narrative research synthesis (Genesee et al., 2006).

³In a summary of five of these meta-analyses (i.e., Green, 1997; McField, 2002; Rolstad et al., 2005a; Slavin & Cheung, 2005; and Willig, 1985), Krashen and McField (2005) examined whether the consistency in results was due to simple redundancy of study inclusion. They found that, while there was some overlap, the vast majority of studies appeared in only one or two of the five meta-analyses. This suggests that the conclusion of “broad support for results favoring bilingual education” (p. 9) is reliable.

⁴For example, California's Proposition 227 states that even in the “sheltered English immersion” or “structured English immersion” settings, “nearly all classroom instruction is in English” (Article 2, Section 306 (d)). Arizona's Proposition 203 requires even in “sheltered English immersion” or “structured English immersion” that “nearly all classroom instruction is in English … books and instructional materials are in English … [and] no subject matter shall be taught in any language other than English” (Section 15–751 [5]).

Administrative Procedures Act. (2000). 5 U.S.C. 551–559, 561–569, 571–583, 701–706, 1305, 3105, 3344, 5372, 7521.

Bilingual Education Act. (1968). Elementary and Secondary Education Act, Title VII. 20 U.S. C. §§7401 et seq.

Castañeda v. Pickard, 648 F.2d 989 (5th Cir. 1981).

Cintron v. Brentwood Union, 455 F. Supp. 57 (E.D.N.Y. 1978).

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311 (9th Cir. 1995), cert. denied, 516 U.S. 869 (1995).

Equal Educational Opportunity Act. (1974). 20 U.S.C. §§ 1701–1714.

Federal Rules of Evidence. (2009). Rule 702. Testimony by experts.

Gomez v. Illinois State Board of Education, 811 F.2d 1030 (7th Cir. 1987).

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).

Lau v. Nichols, 414 U.S. 563 (1974).

McLaughlin v. State Board of Education, 75 Cal. App. 4th 196 (1st Dist. 1999).

Proposition 203. English language education for children in public schools. Ariz. Rev. Stat. Ann. §§ 15–751 to 15–755.

Proposition 227. English language in public schools. CA Ed. Code §§ 300–340.

Question 2. English language education in public schools. Mass. Gen. Laws. Ann. Chs. 69–71B.

Rios v. Read, 480 F. Supp. 14 (E.D.N.Y. 1978).

Serna v. Portales, 499 F.2d 1147 (10th Cir. 1974).

Teresa P. v. Berkeley Unified School District, 724 F. Supp. 698 (N.D. Cal. 1989).

Valeria G. v. Wilson, 12 F. Supp. 2d. 1007 (N.D.Cal. 1998).