Across school districts of all sizes and regions of the United States, administrators and teachers are facing a growing challenge: how can they equitably and appropriately educate English learners (ELs). As recently as 2013–14, approximately 9.3 percent of the school-aged population in the United States was consisted of English learners, with cities showing the highest concentration of ELs.

 Nationally, the EL student population increased by more than 7 percent from 2002 to 2010. During that same time period, the EL population in some states jumped significantly higher. For example, in the Southeast—including Arkansas, Kentucky, Mississippi, and South Carolina—the EL population grew by more than 150 percent. The same was true in Nevada, Delaware, and Kansas.

National test scores indicate that EL students are performing at a lower level than their native English-speaking peers. In 2013, only 7 percent of fourth grade ELs tested “proficient” or higher in reading, and only 14 percent of fourth-grade ELs tested “proficient” or higher in math. Clearly, it’s imperative that schools address the needs of English learners in order to close the achievement gap between ELs and their native English-speaking peers.

Schools have a legal obligation to provide EL students with equal educational opportunities; however, addressing the complex needs of these students is not a simple task. With the rapid increase in the population of English learners and variable funding for EL programs, many school districts have been struggling to meet the academic and linguistic needs of English learners.

Legal Obligations for EL Students

In January 2015, the U.S. Department of Education and the U.S. Department of Justice issued joint guidance outlining school districts’ legal obligations with regard to EL students.

According to the departments, some common compliance issues arise when school districts are trying to meet their federal obligations for ELs, such as failing to assess EL students who are in need of language assistance in a timely, valid, and reliable manner; not providing a language assistance program that is educationally sound; and failing to staff and support language assistance programs. School districts also need to ensure that EL students are not segregated and that EL students with disabilities receive appropriate services. School districts may also be out of compliance for failing to ensure meaningful communication with EL parents.

Both the Equal Educational Opportunities Act of 1974 (EEOA) and Title VI of the Civil Rights Act of 1964 require that public schools allow equal and meaningful participation in educational programs for EL students. In Lau v. Nichols, the U.S. Supreme Court held that Title VI requires that school officials take affirmative steps to rectify language deficiency and that instructional programs be open to EL students. Title VI prohibits discrimination based on race, color, and national origin. In Lau, a group of Chinese-American EL students filed a lawsuit claiming that they were denied appropriate services related to their language skills. The court ruled that the students were entitled to equal educational opportunities based on their national origin. The court reasoned that a student’s native language is closely related to his or her national origin, and that a school’s failure to address students’ language deficiencies amounted to discrimination under Title VI.

When determining whether a school district’s EL program complies with civil rights laws, the Department of Education and the Department of Justice apply the following standards taken from the federal court decision of Castañeda v. Pickard: 

  1. The educational theory underlying the language assistance program is recognized as sound by some experts in the field or is considered a legitimate experimental strategy;
  2. The program and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school; and 
  3. The program succeeds, after a legitimate trial, in producing results indicating that students’ language barriers are actually being overcome within a reasonable period of time.

These standards do not outline a specific or preferred curriculum for EL students, and in recent years, the court has reiterated that states and local school boards have significant freedom to determine which instructional model(s) are “appropriate” for their EL students. In Horne v. Flores, parents of EL students in Arizona alleged that their school district violated the EEOA by failing to adequately fund bilingual education for their children. The U.S. Supreme Court found no EEOA violation, stating that the “sheltered English immersion” model chosen by the school district, rather than a more expensive bilingual curriculum preferred by the parents, provided equal opportunities for the EL students. The state’s chosen instructional model for EL students met the standards as outlined in Castañeda v. Pickard, even if it did not provide the native language support the parents desired.

Recommendations for School Leaders

Research has shown that EL students have better educational outcomes when they are taught by teachers who have received specific training to address the needs of language. In addition to seeking highly qualified classroom teachers who are prepared to work with EL students, school leaders can take the following steps recommended by the U.S. Department of Education to ensure they are providing equal educational opportunities for language learners and meeting their obligations under the EEOA and Title VI:

  • Ensure ELs have equal access to all curricular and extracurricular programs
  • Ensure the needs of ELs who decline services are met
  • Prevent segregation of ELs and other students
  • Properly evaluate ELs for special education services; provide dual services, if needed
  • Ensure appropriate communication with limited English-proficient parents 

Colleen E. Chesnut, PhD, is a research associate at the Center for Evaluation and Education Policy at Indiana University in Bloomington, IN. Emma G. Fisher, MA, is a former secondary English as a Second Language teacher and PhD student in Education Policy Studies at Indiana University. Suzanne E. Eckes, PhD, JD, is a professor at Indiana University and has been widely published on school legal matters, including co-editing The Principal’s Legal Handbook.