The untold story of Lau v. Nichols
Rachel F. Moran
University of California at Berkeley
Scholars working on immigrant education and language acquisition are probably familiar with Lau v. Nichols, 414 U.S. 563 (1974). Lau is a landmark because the United States Supreme Court declared that children who speak a language other than English have a right to special assistance under Title VI of the Civil Rights Act of 1964. Most people know the formal holding: Language can not be used as a proxy to discriminate against children on the basis of race, ethnicity, or national origin. Discrimination can be judged by the effect of a policy as well as the intent in promulgating it. Lau’s significance was cemented when Congress codified the holding in the Equal Educational Opportunities Act (EEOA) of 1974. The Court’s ruling helped to usher in an era of invigorated federal funding and enforcement, state innovation, and successful civil rights litigation.
Less well known is the story behind the case. Lau began when a poor Chinese woman in San Francisco came to a Neighborhood Legal Services attorney, Edward Steinman, and mentioned the problems that her son, Kinney, was having in the public school system. Although Kinney spoke Cantonese, the school took no steps to address his language barriers. Steinman filed a class action on behalf of Kinney and others like him. The litigation epitomized a test-case approach to law reform. Steinman sought a clear statement of constitutional principle that would transform educational practices throughout the nation. Even so, the legal precedents appeared so weak that the San Francisco Unified School District was willing to stipulate that it provided little or no assistance to thousands of Chinese-speaking students. The case that transformed the legal landscape for English language learners was decided without a trial or even much in the way of depositions and interrogatories. Steinman lost before the lower courts but eventually triumphed on appeal.
Although Lau’s immediate impact was significant, the decision rests on an increasingly fragile footing. If filing today, the Lau family would have difficulty in finding a legal aid lawyer to take the case, and the federal courthouse door would be closed under Title VI. If the Laus proceeded under the EEOA, they could sue the San Francisco school district but would face arguments that the California Department of Education and other state actors are beyond the statute’s reach. If the Laus relied on California law as an alternative, they would confront the strictures of Proposition 227, which mandates intensive English instruction unless a waiver applies. Indeed, in the face of rising anti-immigrant sentiment, it is not clear precisely what the future holds for Lau.
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