Almost 30 years ago the U.S. Supreme Court ruled in  Lau v. Nichols  that if English is the language of instruction and if students do not speak English then the students do not have an equal access to a meaningful education.   A school system which educates students in a language the students do not understand is in violation of the Civil Rights Act of 1964 as well as the Fourteenth Amendment.   Looking at today’s educational systems,  are public schools providing limited English proficient (LEP) students with an equal education that conforms to the intent of Lau v. Nichols?

          Lau v. Nichols originated in California.  The California Education Code (CEC) included a provision which stated that English was the basic language of instruction in all their public schools.  School districts had the discretion to decide when and if to implement bilingual programs.  But the CEC stressed the goal of English fluency as a requirement for receiving a high school diploma.  The CEC also stated that bilingual programs could not interfere with the regular instruction of English.  In 1970 a group of Chinese parents, representing about 1,800 students, took the San Francisco Unified School District to court.  At issue was whether the education policies as interpreted by the school district violated the civil rights of these language minority students by offering the curriculum in English, a language which the students did not understand.  In other words, did ‘sink or swim’ immersion in the mainstream classroom  provide equal access to education?  In 1974 the case reached the U.S. Supreme Court.   The Supreme Court ruled in Lau v. Nichols that non-English speaking children who were schooled in English were denied access to an equal public education.  The decision stated that even though students have the same teachers, materials, curriculum and supplies, if the students receive instruction in a language they do not understand, then they are not receiving an equal education under the law.   Justice William Douglas delivered the ruling which included this clarification:

            Today the number of LEP students in schools across the U.S. is  more than 3 million, with 1.5 million in California.  The majority of these students speak Spanish (77%), live in urban areas and attend high poverty schools.  LEP students are less likely to have attended pre-school or to have had any kind of early childhood education.   According to Lau v. Nichols, schools are responsible to provide equal educational opportunities to students whose first language is not English and yet LEP students generally lag behind other students on standardized tests in the elementary grades.  This gap continues to increase through the high school years.

            Research done by the team of Collier and Thomas shows that in order for students to be proficient in the academic English needed for standardized tests, students need 7-10 years of  language support.  This research also shows that the majority of LEP students who enter US schools in Kindergarten or first grade with no English receive only 2-3 years of language support.   In today’s world of high stakes testing, LEP students are barred from receiving a high school diploma unless and until they can pass standardized tests showing that they are proficient in academic English.  Now that the quality of education is being defined by standardized tests, and LEP students are not successful in passing them, it seems that language minority students are not receiving an equal education.

           Recent trends in immigration, both legal and illegal, show that economic immigration has been on a steady increase for the past twenty years and continues to grow.  The birthrate of immigrants is also high.   Statistics from the Collier/Thomas report completed in 2001 predict that by 2030, 40% of school age children will be language minority.  Therefore the schools will see an increase in LEP students who need their ‘language deficiency’ addressed.   The drop-out rate for LEP students continues to be very high, especially for Hispanics, the largest group of LEP students.   Without a high school diploma this large group of students will face very limited career opportunities.  If these problems are not remedied as provided for under Lau, then the U.S. will have a large underclass of students who can not rather than choose not to graduate from high school and therefore have no access to higher education or higher economic opportunities.  This large group of students whose first language is not the language of instruction can not be left to sink or swim.

            According to Lau v. Nichols, the state is compelled to serve LEP children in a way which gives them equal access to educational opportunities.  If a state is ignoring the civil rights of a large group of people, namely language minority children, then, as Justice Douglas stated in Lau v. Nichols, the school district “must take affirmative steps to rectify the language deficiency” so that all students can benefit from the curriculum.  That is the intent of the law.  If students are failing and not graduating from high school, are the school districts in violation of Lau v. Nichols and if so, what can they do to comply?