Legal Issues and ESOL, Peter Roos, Esq.


  1. Introduction
    1. Peter Roos, Esq.
      1. Co-director META Inc. (Multicultural Education, Training and Advocacy)
      2. Has argued U.S. Supreme Court Cases on educational rights of language minority children
  2. Bilingual Programs
    1. Early Bilingual Programs
    2. Long-standing tradition of bilingual programs
    3. For example in the 1700s German/English bilingual programs
      1. Established by German immigrants
  3. Influence of Civil Rights Movement: Fighting for Equal Access
    1. Civil Rights cases after World War II
    2. Brown vs. Board of Education (1954)
    3. Similar cases in Arizona, California and Texas by Latino population
    4. Cases were about
      1. Segregation and discrimination
      2. Equal access to educational programming
    5. Roots of current programs
  4. Civil Rights Act (1964)
    1. Major landmark
    2. Gave the federal government the right to force the desegregation of Southern schools
    3. Prohibits discrimination on the basis of race, color, or national origin
    4. Serves as a basis for the fight for equal rights in the linguistic domain
  5. Other Federal and State Legislation
    1. 1968: Bilingual Education Law (Title VII, now Title III)
      1. First federal law relating to bilingual education
    2. State Laws follow suit in the early 1970s:
      1. Massachusetts (1972): First mandatory bilingual education law
      2. California and other states: non-mandatory but funded programs
  6. Lau vs. Nichols (1974): The Beginning of Modern History
    1. Ruling based on the Civil Rights Act of 1964
    2. Chinese speaking students in San Francisco (1974)
      1. Despite Brown vs. BOE schools had no special language programs of any kind
      2. Their case had been defeated in the lower courts
      3. Underlying assumption: Students had to "sink or swim"
    3. Supreme Court's unanimous decision:
      1. Discrimination on the basis of national origin
      2. In accordance with Civil Rights Laws, schools have to accommodate the linguistic needs of students
    4. The court did not specify any particular program, but the message was clear, schools need to accommodate students not the other way around.

  1. The Role of the Courts
    1. Litigation played an important role in the development of ESOL programming
    2. Programs developed out of Civil Rights background (see Lau)
    3. Additional court decisions in Texas and Colorado
    4. Two Strands: Substantive and non-substantive
  2. The Substantive Strand
    1. Castañeda vs. Pickard (1981)
      1. Built upon Lau
    2. School Districts have to address the needs for ESOL students
    3. The need to be taught English
      1. Learn English language skills in order to function fully and completely in school and in society
    4. The need to learn the curriculum while they are learning English
      1. Intensive ESOL programs are not enough
      2. Basic curriculum needs to be made accessible to ESOL students
  3. Beyond the Basic Needs
    1. Four obligations go along with each of the two basic needs
    2. Develop "pedagogically sound" approach or theory
      1. Judges cannot make curricular decisions
      2. The implemented approach has to be supported by sound pedagogical theory
    3. Implement the theory with the aid of:
      1. Adequately trained teachers
      2. Sufficient resources and materials
    4. Assess the success of the program
      1. Assess the effectiveness of the program
    5. Adjust the existing program if students do not succeed
      1. Reevaluate underlying theory and resources
      2. Make necessary changes
  4. Non-Substantive Strand: State Obligations
    1. Basis for Florida Consent Decree
    2. States have obligations as well as school districts
      1. Rooted in state resistance to desegregation in the 1960s
      2. George Wallace
      3. Education is a state function
      4. School districts are agents of states
    3. Responsibilities of states:
      1. Set basic standards
      2. Monitor the implementation of the standards
  5. Florida Before Consent Decree
    1. No state policy
    2. Very few ESOL accommodations implemented
    3. Consequently vulnerability to litigation
    4. Discussions and negotiations that lead to the Florida Consent Decree

  1. The Pendulum Swing of Civil Rights and Education
    1. Programs fall in and out of favor
    2. Recent anti-immigrant sentiments
    3. English as the official language movement
      1. Little impact on education
      2. Mainly declarative effect
  2. The Case of Bilingual Education in California
    1. A. Grass-roots initiatives
    2. B. Proposition process
    3. C. 1998 Ballot measure
      1. Increased difficulty to obtain access to Bilingual education
      2. Passed in California
  3. Common Misunderstandings in Relationship to Proposition 227
    1. Proposition 227 does not abolish federal bilingual education programs
      1. Federal law supercedes state laws
      2. Principles of federal law still apply in California
      3. Proposition 227 only covers native language instruction
    2. Proposition 227 does not bar bilingual education
      1. Waiver for bilingual education
      2. Signed by 20 or more parents in the same school and same grade
      3. Obligates school district to deliver native language instruction
      4. There are many bilingual programs in the state of California
    3. Similar initiatives around the country
      1. For example: Arizona, Massachusetts, Colorado
  4. The Pendulum is Swinging Back Again
    1. Colorado Supreme Court denied an English-only ballot
      1. Ballots were supported by bilingual education opponents from other states
    2. Pendulum will continue to swing back and forth
    3. Some form of native language instruction seems intuitively right
      1. At least for children with no English proficiency

  1. Shared Responsibilities
    1. Responsibilities of the court and legislature
      1. Setting principles
      2. Providing monitoring and oversight
    2. Responsibility of the states
      1. Curriculum and implementation
  2. Teacher Education
    1. Most states have certifications in both ESL and bilingual education
    2. California
      1. ESOL as foundation for bilingual education
      2. CLAD (Cross-Cultural Language and Academic Development)
      3. Foundational ESOL information
      4. Native language and bilingual education are addressed in advanced courses
    3. Texas has bilingual programs similar to those in California
  3. Teacher Education
    1. Colorado
      1. No state law, but state funding law
      2. Decree based on litigation
      3. Courts also instrumental in programs in Texas
    2. Denver
      1. 150 hours of summer training program
      2. Additional in-services training
      3. Overall comparable to Florida 300 hours
      4. Required language testing
    3. Situation before litigation was similar to that in Florida
      1. ESOL certification was available but not required
      2. Useful for university or administrative careers rather than essential for teaching
    4. MA and NY have dual degrees and require ESOL training for teachers
  4. Non-Compliance and Good Faith
    1. Many states are vulnerable to litigation or administrative complaints
      1. They are not fulfilling their obligations according to the law
    2. Impossibility as Defense
      1. Balancing requirements and real-life constraints
      2. Recognizing good faith efforts, while requiring development of training systems
  1. A Glass Half Full or Half Empty?
    1. Know the history
    2. Compare the situation before and after court orders
    3. Before the Consent Decree:
      1. No trained personnel
      2. Lack of identification
    4. After the Consent Decree:
      1. Increase in identification
      2. But identification is not enough
      3. Increased expectations
      4. Debate has shifted to which system should be used rather than whether or not to provide programming for ESOL children
    5. The debate has moved to a new level
  2. Problems with Implementation
    1. There are serious problems
    2. Attitudes are difficult to change
      1. Many districts did not acknowledge presence of ESOL students
      2. Expected students to change rather than schools (see discussion of Lau vs. Nichols)
    3. Exact numbers are difficult to ascertain
    4. A violation of the decree is reported at least once every week
  3. The State's Obligation to Monitor Compliance
    1. State has fulfilled its obligation to monitor at acceptable levels
      1. A complaint procedure is in place
      2. Parents can file complaint with the state in various ways
    2. State is investigating complaints in a timely manner
    3. Thoroughness could be improved
    4. Non-compliant districts have been reprimanded
  4. Problems and Possible Solutions
    1. Not specific to Florida
    2. State government does not have resources to monitor every school in every district
    3. Possible Solution: Grass Roots Efforts
      1. Train parents and community advocates
      2. Participate in monitoring their own schools
      3. File complaints if necessary
      4. Contact META attorneys
      5. Teachers as advocates for their students
  5. Importance of Grassroots Efforts
    1. Multicultural Coalition—unique to Florida
    2. Coalition across ethnic and racial backgrounds to help children
    3. Unfortunately, the funding was lost
    4. We need to build upon existing or create new coalitions
  6. Reaching Out
    1. Language problems are not the only challenges minority children face.
      1. Insufficient funding
      2. Lack of trained teachers
      3. Overcrowded schools
    2. These issues bridge over and can unite different groups to work toward a common goal.
  1. Historical Context
    1. Before the 300-hour mandate:
      1. ESOL training was not required
      2. Lack of ESOL training for teachers
    2. Resistance to change
      1. Trying to accomplish a system-wide change
      2. Requiring trained teachers to deliver ESOL programs
    3. Before the training mandate:
      1. No training required
      2. Only 40–50 teachers with M.A.s in ESOL
      3. 100,000 ESOL children needing service
      4. ESOL professionals worked in universities rather than in schools
  2. The Dual Track for Teacher Training
    1. Traditional model
      1. Five graduate courses to become ESOL specialist
      2. Generally awards teachers a Master's degree
    2. In-Service Training
      1. Necessary because of the imminent need for large numbers of qualified teachers
  3. 3. Solutions and the Real World
    1. A. Not a Perfect Solution
      1. Some initial reactions to 300 hours of in-service training were negative
      2. Resistance to training
      3. Resentment because of extra training requirements
    2. B. Not a Perfect World
      1. 300 hours of training are equivalent to clock hours necessary to take the five courses to become an ESOL specialist
      2. Based on state standards for ESOL certification
  1. What Would You Do Differently?
    1. Problems arise from implementation rather than the Decree itself
    2. In Hindsight:
      1. Focus more on state resources
      2. Mandate a state-funded regional system for monitoring
      3. Involving parents and the community
  2. Laws and Compromises
  3. Decrees are always based on compromises
    1. Not all demands were met
    2. But programs were instated
  4. Overall, the state was not hostile to the cause
  5. Improvements in Implementation
  6. Probably impossible to mandate additional 300 hours of training without conflict
  7. Things that could have been done differently
    1. Create more interesting programs/curriculum
    2. Better oversight
    3. Oversee the overseers
  1. Examining Both Positive and Negative Aspects
    1. Positive Outcomes
      1. All teachers receive ESOL training
      2. All teachers are familiarized with the needs of ESOL students
    2. Problems
      1. Viewed as giving full credential in ESOL
      2. Insufficient, given the importance of learning English
  2. The Traditional Model
    1. 300 hours of stand-alone instruction
    2. Instructors were trained in assessment or applied linguistics
    3. Substantial time commitment to different elements
    4. Teachers gained in-depth knowledge of the field of ESOL
  3. Perceived Shortcomings of Infusion
    1. Courses are not taught by faculty with a specialization in ESOL
    2. Courses are not at the level of M.A. ESOL courses
    3. Devaluation of ESOL training
      1. Perceived as add-on to more important subject matter
      2. Insufficient time commitment to ESOL
    4. May result in nominal endorsement (certification without the required training)
    5. Inadequate training and preparation may lead to litigation
  4. Necessary Safeguards
    1. Maintain the core number of stand-alone courses
    2. Provide oversight
    3. Institute outcome measures
    4. Assure that infusion leads to the required level of knowledge
  1. Advocacy and Advisors
    1. Long-term involvement
    2. Immersion in research
    3. Consultation with educators at universities and at schools
    4. Crucial partnerships
  2. Cooperation between Lawyers and Educators
    1. The Role of Lawyers
      1. Focus on foundational aspects rather than curriculum design and delivery
      2. Draw on experts in education topics
    2. Educators: The Example of Rosie Castro-Feinberg
      1. Was instrumentally involved in raising awareness
      2. Provided information regarding the status quo in Florida
    3. Cooperation between lawyers and area specialists is common practice in these types of legislative initiatives