“We filed this class action lawsuit … to seek relief for the many refugee and immigrant families in our community who are facing discrimination,” said George Thawmoo, the father of a student in St. Paul. In July 2017, a Karen family sued St. Paul Public Schools over what they say are inadequate services for students learning English. The city of St. Paul found probable cause that the district had discriminated against Thawmoo’s daughter, Lor Ler Hok Koh, by failing to offer adequate education and evaluation for special education services as an Emerging Multilingual Learner (EML).
While one way to look at excellent and equitable education for EMLs is through theory and research, another is through important policy and law that support EMLs . Minnesota and the federal government have written in statute various protections for students, including for those whose first language is not English. As we look toward the election, it’s important to understand how these laws and policies should guide all candidates and elected officials—and hold them accountable— in supporting equity for EMLs in Minnesota schools.
Legislation that protects EMLs
The first major inclusion in legislation was through the Civil Rights Act of 1964, which prohibited discrimination based on national origin and later interpreted by the Office of Civil Rights to include language. The Elementary and Secondary Education Act (ESEA) of 1968 established a Bilingual Education Act, though the main interpretation was to aid English Learners and not necessarily grow bilingual programs. As a result, over time the ESEA—through No Child Left Behind and now Every Student Succeeds Act—focus on English acquisition.
The US Supreme Court has offered additional protections for EMLs, mostly through immigrant education protections. In 1974, Lau v Nichols established that schools must take steps to overcome the linguistic barriers students may face in accessing an equal education. Although a method is not specified, it was presumed that bilingual education is a pathway so that students understand content while learning English. As a result, the Equal Educational Opportunities Act of 1974 solidified the mandate that schools must support students in overcoming linguistic barriers in school. The 5th Circuit Court clarified the EEOA through Castañeda v Pickard by explaining that educational programs have certain elements. Finally, Plyler v Doe in 1982 incorporated immigration policy by considering the legal status of immigrant families to decide that all schools must provide an education no matter the legal status. Therefore, EML wellbeing is tied to immigration policy and climate.
Within Minnesota, various statutes define students and teachers, further protect against discrimination in classification, family rights, and program details. The 2014 MN Learning English for Academic Proficiency and Success Act went further to address linguistic barriers through the inclusion of home language development, like Lau v Nichols.
How we can hold elected officials accountable
While we live in a nation of laws and protections, it is not assumed that implementation and fidelity are accurate. Below are the state and federal laws, and Supreme Court cases related to English Learner education in full. These statutes and precedence govern and protect Emerging Multilingual Learners. Ensure you are an educated voter holding elected officials accountable, or candidate that will swear to uphold the laws of the state and country.
When reading through these statutes, acts, and decisions, consider the following questions for candidates and elected officials:
- The State of Minnesota defines bilingual education programs and the US Supreme Court decided that schools must support students in overcoming linguistic barriers to learning. How will you work with local districts and charters to expand bilingual education programs so that Emerging Multilingual Learners access academic content and English language development?
- The State of Minnesota establishes that the English Language Development standards are those developed by the WIDA Consortium, which also administers the annual English language proficiency exam, ACCESS. How will you hold districts and charters accountable for implementing these standards which are aligned to the required exam?
- Federal law requires that schools and districts provide a language instruction educational program plan, and holds schools and districts accountable for progress toward English language development. How will you work with schools and districts to ensure families are aware of the plans and are involved if schools and districts are identified for school improvement support from the state?
For Further Reading
Minnesota Statutes, section 123B.30 Improper Classification of Pupils: No district shall classify its pupils with reference to race, color, social position, or nationality, nor separate its pupils into different schools or departments upon any of such grounds.
Minnesota Statutes, section 124D.59 Definitions: Defines an English learner, essential instructional personnel, English as a second language program, bilingual education program, primary language, parent, and educational program for English learners.
Minnesota Statutes, section 124D.60 Rights of Parents: Outlines requirements for parent notification within 10 days after the enrollment of any pupil in an instructional program for English learners, parental right to withdraw from the program, and parent involvement in the program.
Minnesota Statutes, section 124D.61 General Requirements for Programs: Outlines general requirements for programs for English learners including identification and reclassification criteria, programs and services, and professional development for teachers working with ELs.
Minnesota Statutes, section 124D.65 English learner (EL) Programs Aid: Outlines school district EL revenue, and participation of nonpublic school pupils.
Minnesota Rule 3501.1200 Scope and Purpose: Outlines the purpose of standards that govern the instruction of English learners. The state of Minnesota’s standards for English language development are the current standards developed by the World-Class Instructional Design and Assessment (WIDA) consortium.
Minnesota Rule 3501.1210 English Language Development Standards: Outlines the language development standards: social and instructional language, the language of language arts, the language of mathematics, the language of science, and the language of social studies.
Minnesota Rule 8710.4150 Teachers of Bilingual/Bicultural Education: Defines scope of practice, demonstration of oral and written proficiency, subject matter standard as part of the licensure requirements for teachers providing bilingual/bicultural education.
Minnesota Rule 8710.4400 Teachers of English as a Second Language: Defines scope of practice, licensure requirements, subject matter standard as part of the licensure requirements for a teacher of English as a second language.
2014 Minnesota Session Law, Chapter 272 ‒ H.F. No. 2397, Article 1: The Learning English for Academic Proficiency and Success (LEAPS) Act was passed in Minnesota in 2014. The law revises many state statutes to add an increased emphasis to support English learners. The law is embedded into many existing statutes including areas such as early childhood, curriculum and instruction, adult education, and teacher licensing. The statute adds a definition and accountability reporting for Students with Limited or Interrupted Formal Education (SLIFE). The statute also adds a provision for districts to institute bilingual and multilingual seals to students who demonstrate certain levels of language proficiency in native and world languages.
Title III Part A – English Language Acquisition, Language Enhancement, and Academic Achievement Act: Under the Elementary and Secondary Education Act as amended by ESSA, the purpose of the Title III program is to ensure that ELs and immigrant children and youth attain English proficiency, develop high levels of academic attainment in English, and meet the same challenging state academic content and student academic achievement standards as all children are expected to meet. To achieve this goal, districts receiving supplemental Title III funds are expected to provide high-quality language instruction educational programs (LIEPs) for ELs and immigrant students and high-quality professional development activities to ESL and Bilingual Education (BE) staff, as well as all staff who work with ELs. LIEPs should utilize an evidence-based research program shown to be the most effective for teaching English language. Additionally, the Elementary and Secondary Education Act (ESEA) as amended by the Every Student Succeeds Act (ESSA), recognizes the importance of parent, family, and community engagement and requires every district receiving Title III to provide programming for these significant stakeholders.
Title VI of the Civil Rights Act of 1964: Title VI prohibits discrimination on the grounds of race, color, or national origin by recipients of federal financial assistance. The Title VI regulatory requirements have been interpreted to prohibit denial of equal access to education because of a language minority student’s limited proficiency in English.
Equal Education Opportunities Act of 1974: This civil rights statute prohibits states which receive federal funding from denying equal educational opportunity to an individual on account of his or her race, color, sex, or national origin. The statute specifically prohibits states from denying equal educational opportunity to students learning English by the failure of an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs. [20 U.S.C. §1203(f)]
Supreme Court Cases
Lau versus Nichols
Lau versus Nichols was a class-action suit brought by parents of non-English-proficient Chinese students against the San Francisco Unified School District. In 1974, the Supreme Court ruled that identical education does not constitute equal education under the Civil Rights Act of 1964. The court ruled that the district must take affirmative steps to overcome educational barriers faced by the non-English-speaking Chinese students in the district. [414 U.S. 563 (1974)]
Castañeda versus Pickard
On June 23, 1981, the Fifth Circuit Court issued a decision that is the seminal post-Lau decision concerning education of language minority students. The case established a three-part test to evaluate the adequacy of a district’s program for EL students: (1) is the program based on an educational theory recognized as sound by some experts in the field or is considered by experts as a legitimate experimental strategy; (2) are the programs and practices, including resources and personnel, reasonably calculated to implement this theory effectively; and, (3) does the school district evaluate its programs and make adjustments where needed to ensure language barriers are actually being overcome. [648 Federal Report, 2nd Series 989 (5th Cir., 1981)]
Plyler versus Doe
This 1982 U.S. Supreme Court case overturned an attempt by a Texas school district to exact tuition money from students whose U.S. citizenship could not be confirmed. The district had alleged it was unfair to children who were citizens and legal residents to share resources–and, presumably, receive fewer of the resources–with children who were illegal residents, and was requiring all students to either prove their legal status in the United States or, if they could not, pay tuition. The High Court ruled that a state does not have the right to deny a free public education to undocumented immigrant children on the basis that it was not the state education agency’s business to essentially create immigration policy, nor could it be proven that “legal” children suffered a poorer education as a result of including “illegal” peers. [457 U.S. 202 (1982)]
The May 25 Memorandum
To clarify a school district’s responsibilities with respect to national-origin-minority children, the U.S. Department of Health, Education and Welfare, on May 25, 1970, issued a policy statement stating, in part, that “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 the instructional program to the students.” In addition, “School districts have the responsibility to adequately notify national origin-minority-group parents of school activities which are called to the attention of other parents. Such notice, in order to be adequate, may have to be provided in a language other than English.”