In 1996, the United Nations Educational, Scientific and Cultural Organization (UNESCO) presented to world conference a Universal Declaration on Linguistic Rights asserting as “inalienable personal rights” the “right to be recognized as a member of a language community; the right to the use of one’s own language both in private and in public” and “the right for [one’s] own language and culture to be taught” (UNESCO, 1996). At the time that this declaration was published, California would seem to be a model state. After the landmark Lau v. Nichols case of 1974 in which the Supreme Court found that “there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education”, California would set the bar on bilingual education. In 1976, the California State Assembly would pass AB 1329, the Chacón-Moscone Bilingual-Bicultural Education Act, which “established the legal framework for a mandatory bilingual education program. In 1980, the bill would be revamped and expanded and although the bill was allowed to “sunset” in 1987, “the California Department of Education has nevertheless continued to uphold the bill’s principles” (Lemberger, 1997). And yet, in 1998, through a controversial ballot measure, California voters passed Proposition 227 which amended their constitution to ban instruction in any language other than English.
In the case of bilingual education in California it would seem as though politics had trumped pedagogy, as Californians “revealed that language learning is as much a political issue as an educational program or a field for linguistic research” (Mitchell, D., et al., 1999). Indeed, an analysis of news items on Proposition 227 in the months leading up to the vote found “he-said, she-said reporting dominated” with “little or no discussion of actual bilingual programs” (Aryal, 1998). A debate that should have focused upon linguistic theory, cultural identity and a technical decision regarding the balancing of “language and academic learning outcomes” (Mitchell, D., et al., 1999) was reduced to monolingual versus multilingual cultural warfare with little discussion of the impact on students.
In essence, Californians set a policy on bilingual education which “places language learning ahead of academic attainment” (Mitchell, D., et al., 1999), as the statewide curriculum for instructing English Language Learners was established in blanket mandate. Proposition 227 states that without parental waiver, students learning to speak English will be given a single year of sheltered English language immersion. This despite the fact that well vetted research on the subject found that “even in schools that are considered successful in teaching English to EL students, oral proficiency can take 3 to 5 years to develop, and academic English proficiency can take 4 to 7 years” (Biegel, p. 507, 2009).
Legal Aspects of Bilingual Education
U.S. law has had very little to say on the topic of bilingual education and can be reduced to a single Supreme Court Case, Lau v. Nichols, a single act of Congress, the Equal Educational Opportunity Act (EEOA), and the Fifth Circuit Court’s application of Lau. An application of the Fourteenth Amendment, Lau found 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 … open its instructional program to these students.” As a result of the Lau decision, the San Francisco Unified School District would enter into a consent decree, to ensure the implementation of a bilingual program to serve all students. Ironically, this consent decree would allow San Francisco to continue to provide bilingual education to its students after it was banned by Proposition 227.
Following the decision, congress incorporated the key points of Lau into the EEOA. The EEOA stated that:
No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by … (f) the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in the instructional programs.
As Wiley has pointed out however, the EEOA may not have explicitly provided for bilingual education. The EEOA does establish the right to “equal participation”, what Wiley calls “the right to access an education that allows for social, economic, and political participation” (2002, p. 39). What is not explicitly established is “the right to an education mediated in one’s mother tongue(s)” (Wiley, 2002, p. 39). This would be made clear by Judge Legge in the majority decision to uphold Proposition 227, “Since there is no requirement in the federal constitution for bilingual education, the voters of California were free to reject bilingual education” (Valeria v. Davis, 2003)
The key to understanding what is required of an educational agency is the phrase “appropriate action”. This appropriate action was not made explicit by Lau or by the EEOA. This would not be made explicit until the 1981 Fifth Circuit Court heard the Castaneda v. Pickard case. Castaneda established a three-fold framework for what constitutes “appropriate action”:
- The school system is purs[uing] a program informed by an educational theory recognized as sound by some experts in the field, or at least, deemed a legitimate experimental strategy.
- The programs and practices actually used by a school system [must be] reasonably calculated to implement effectively the educational theory adopted by the school.
- Even if theory is sound and resources are adequate, the program must be borne out by practical results.
In Valeria, Legge states “The Castaneda court … requires educational agencies to take ‘appropriate action,’ it does not require a program of bilingual education.” An unexplored option under Castaneda is whether or not single year immersion mandated by Proposition 227 meets the third criteria and has been “borne out by practical results”.
Marshall, et al. have established a framework on the “assumptive worlds of the policy maker”. What is interesting about Proposition 227 is that education policy was not made by district officials or state or federal legislators, but by the voters of California through ballot initiative. We might look at this legislation through the lens of the first domain of the “assumptive worlds”, “Who has the right and responsibility to initiate policy?” (Marshall, et al., 1985, p. 95). Do the voters have the right or the responsibility to initiate legislation on the linguistic rights of a minority group? Aryal’s meta-analysis on the media portrayal of this issue found that it was “not treat[ed] as an education story” and that popular discourse “seem[ed] to have forgotten that this issue will affect the lives of hundred of thousands of children for years to come” (1998). In his dissent to the Valeria decision, Judge Pregerson raised concerns along these lines:
Proposition 227 generates the type of restructuring of the political process that runs afoul of the equal protection guarantees of the Fourteenth Amendment. Proposition 227 siphons power away from those minorities who are directly affected by bilingual education policy and transfers the power to influence that area of educational policy to the general electorate. While public school students and parents could influence policy at the local level before the passage of Proposition 227, they must now launch a successful statewide ballot initiative to bring about any meaningful change. (Valeria v. Davis, 2003)
Education Policy Aspects of Bilingual Education
The years following the passage of Proposition 227 were marked by turmoil in California schools. In an action research study on bilingual teacher candidates, Rubio and Attinasi (2000) identified six dominant themes in reaction to the mandated changes. Faced with the difficult (and expensive) task of rebuilding entire programs, some districts opted to make minimal changes to classroom instruction. For others, the changes caused uncertainty and awkwardness as they struggled to interpret the pedagogical implications of the policy. Many teachers reported duress at the changes, most often at being “kept in the dark” as to what the changes would mean. Other districts opted for rigid directives, sometimes including the directive that “no waivers will be given”. Some districts took the opposite tack and actively sought parental waivers that would allow them to continue to operate their bilingual programs. Some districts pursued alternative programs such as dual immersion programs or as in the case of San Francisco Unified, continued bilingual education under its court ordered consent decree.
Several years into the program mandated by Proposition 227, California’s English Language Learners (ELL) find themselves in a difficult position. In 1998, just after the passage of Proposition 227, a review of data on students who had transition from bilingual education programs showed that “Third-graders who had graduated from bilingual classrooms in San Francisco, for example, scored 40 percentage points higher in math than their native English-speaking counterparts. On the language portion, bilingual fourth-graders scored 25 points higher than the natives. And in reading, eight-grade bilingual grads outscored the natives by nine points – although their reading scores slipped behind in later grades” (Asimov, 1998). Today, “linguistic minority children, particularly those who are not yet proficient in English, lag far behind children from English only backgrounds” (Biegel, 2009, p. 532). Furthermore, Rumberger and Gándara have identified seven inequitable conditions that effect ELL students’ opportunities: (1) inequitable access to appropriately trained teachers, (2) inadequate professional development opportunities to help teachers address their instructional needs, (3) inequitable access to appropriate assessment to measure their achievement, gauge their learning needs, and hold the system accountable for their progress, (4) inadequate instructional time to accomplish learning goals, (5) inequitable access to instructional materials and curriculum, (6) inequitable access to adequate facilities and (7) intense segregation into schools and classrooms that place them at particularly high risk for educational failure (Biegel, 2009, pp. 533-534).
As research has conclusively demonstrated that a single year of English language immersion is not a practical approach to the instruction of English language and academic content for ELLs, Education policy makers must seek new ways to develop strong programs for ELLs. While California may not be allowed to provide bilingual instruction, “the conditions that had been put into place before”, specifically its programs for the “training for bilingual teachers” (Varghese & Stritikus, 2005) provides an excellent resource for the reconstruction of strong programs. Varghese and Stritikus (2005) call for the creation of explicit “spaces” in teacher education programs where “teachers’ beliefs, their local settings, and research-based content” are discussed alongside “language policy” to make these discussions explicit for young teachers.
Varghese and Stritikus (2005) found that a teacher’s “sense of professional identity, … personal history and their entry into the profession” had as much impact in how teachers responded to language policy as did the school district’s official policy. Rubio and Attinasi (2000) take the discussion a step further by offering two concrete solutions via teacher education to California’s dilemma. First, new teachers must be thoroughly prepared by their programs. Having identified a list of seven needs of a strong BCLAD teacher certification program, it becomes as simple as filling these needs: (1) methods for primary language support (legal under 227 as “support”), (2) English Language Development (ELD) instructional strategies, (3) Specifically Designed Academic Instruction in English (SDAIE) strategies, (4) support in lesson planning (as in the Sheltered Instruction Observation Protocol (SIOP)), (5) support in classroom management, (6) homework strategies with parents and (7) access to ELD/SDAIE resources and materials. Finally, Rubio and Attinasi (2000) provide a set of enduring understandings that graduates of Bilingual Credential programs must possess: (a) how language policies affect the larger societies, (b) a focus on short range compliance with Proposition 227 and (c) the ideal education for societal bilingualism through dual language immersion. In this way, teacher education programs may provide the best and brightest hope to ameliorating the Achievement Gap for English language learners.
Aryal, M. (1998). “He says, she says: How California’s major papers have covered prop. 227”. Media File, Volume 17 #3.
Asimov, N. (1998). Bilingual surprise in state testing. San Francisco Chronicle. July 16, 1998, A1-A10.
Biegel, S. (2009). Education and the Law. St. Paul, MN: West.
Lau v. Nichols (1974), 414 U.S. 563, 94 S.Ct. 786
Lemberger, N. (1997). Bilingual Education (p. 171). Mahwah, NJ: Lawrence Erlbaum.
Marshall, C., Mitchell, D. & Wirt, F. (1985). Assumptive words of education policy makers. Peabody Journal of Education, Vol. 62, No. 4, pp. 90 – 115.
Mitchell, D., Destino, T., Karam, R. & Colón-Muñiz, A. (1999). The politics of bilingual education. Educational Policy, 13 (p. 86).
Rubio, O. & Attinasi, J. (2000). Teachers in post-Proposition-227 southern California: implications for teacher education. Journal of Instructional Psychology, 27 no. 4
United Nations Educational, Scientific and Cultural Organization (UNESCO), (1996). Universal declaration on linguistic rights. World Conference on Linguistic Rights, Barcelona, Spain.
Valeria v. Davis (2003), 320 F.3d 1014, 1018-20 (9th Cir.).
Varghese, M. M. & Stritikus, T. (2005). “Nadie me dijó [nobody told me]”: Language policy negotiation and implications for teacher education. Journal of Teacher Education, 56 (pp. 73 – 87)
Wiley, T. G. (2002). Accessing language rights in education: A brief history in the U.S. context. In J.W. Tollefson (Ed.), Language policies in education: Critical issues (pp. 39-64). Mahwah, NJ: Lawrence Erlbaum.