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Instead, there is a complex mesh of statutes and case law that defines the educational entitlements of limited English proficient students and affects the ways programs are funded for them. ... (The first case law that speaks to the educational rights of the LEP students is] ... the U.S. Supreme Court decision in Brown V. the Board of Education of Topeka in 1954. The Brown decision established the principle that separate facilities that were the product of intentional segregation were inherently unequal, reversing a deci­sion by the Court fifty-eight years ear­lier that separate but equal facilities, or segregation, constituted equality (Plessy v. Ferguson, 1896).

The Brown decision was a landmark in U.S. history and had a significant impact on all forms of segregation. For example, it was used to break down segregation on buses, trains, restau­rants, and (eventually) housing. But the immediate concern of Brown was schooling, and to this day schooling remains an arena in which the impact of Brown is continually felt ... (Lessow­Hurley, 1990, p. 112).

... In addition, federal court decisions, focused primarily on civil rights for non­English speakers, support an entitlement to services that offer equal educational opportunity to LEP students.

... Title VI of the Civil Rights Act (1964), ... which contained provisions strength­ening the federal government's ability to enforce desegregation and integra­tion, plays a key role in the establish­ment of the rights of language minor­ity children ...

Overall, the climate of the times in the late 1950s and early 1960s favored the establishment of dual language programs. ... The influx of Cuban refu­gees and the establishment of bilin­gual programs for Spanish-speaking children in Florida catalyzed the de­mand for programs for other non-En­glish-speaking children. The success of the program in Florida, combined with increased ethnic self-awareness among minority groups and the philosophical impetus of the civil rights movement, led to legislation and litigation that established the educational rights of lan­guage minority children. ... (Lessow­Hurley, 1990, p. 112).

Title VII: The Bilingual Education Act

Signed into law in 1968, Title VII of the Elementary and Secondary Education Act (ESEA), known as the Bilingual Education Act, provides funds for direct services to students, teacher training, and support services such as technical assistance and dissemination of information. Since 1968 there have been reauthorizations of the Act with amendments in 1974, 1978, 1984, and 1988. The next reauthoriza­tion is scheduled for 1993. Title VII funds have increased with each reauthorization and current funding is approximately $186 million. ... however, ... funding fails to keep pace with the growing need. Only 10 percent of programs aimed at LEP stu­dents are currently funded by Title VII. The remaining 90 percent are funded by local and state education agencies (Fo­rum, January 1991, p.2).

Title VII funds are discretionary; that is, they are not automatically available to every student who is assessed as LEP. Funds are awarded to state and local educational agencies, universities, and other educational institutions through a competitive proposal writing process.

Although Title VII does not mandate bi­lingual education, the Act effectively es­tablishes policy at the national level through its acknowledgment of the needs of LEP students. Recent modifications of the legislation accommodate the diver­sity of languages and needs in the schools and give local educational agencies discretion in implementing programs. It is clear from Title VII, however, that native-language instruction is an accept­able and even desirable means of assist­ing LEP students while they learn English. Attempts by legislators and bureaucrats to alter or erode that intention have re­peatedly failed.

Lau v. Nichols (1974)

We cannot discuss the legal bases for bilingual education without mentioning the landmark United States Supreme Court decision in Lau v. Nichols. It should be noted at the outset, however, that although Lau is important from a histori­cal perspective, its practical significance has diminished.

In 1974 a group of Chinese students sued the San Francisco Unified School District. In their suit the plaintiffs claimed that they were denied access to a meaningful education because they could not un­derstand the education they received. They claimed the school violated Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin.

The Court found for the plaintiffs, but did not specify a remedy for their com­plaint. Instead, the Court noted that sev­eral solutions were possible, including native-language instruction and ESL classes. As Piatt has noted (1990), Lau did not establish a constitutional right to bilingual education or even a requirement that districts provide primary-language content instruction.

Lau was, however, a catalyst for public policy. In the wake of the Lau decision, for example, New York City entered into a consent decree in the Aspira case and

significantly expanded services to LEP students in New York City. The Depart­ment of Health, Education, and Welfare also promulgated regulations regarding the identification and assessment of LEP students and the delivery of services to them. Although the regulations were never formally adopted, they were used as a de facto guide to Lau compliance by school districts and consequently had a far-reaching effect on programming for LEP students across the country. In addi­tion, after Lau, several states enacted legislation mandating services for LEP students.

The Equal Educational Opportunities Act (1974)

Since Lau, various court decisions have reshaped judicial interpretation of Title VI of the Civil Rights Act (Heubert, 1988; Crawford, 1989) and have mitigated the power of Lau as a protection for LEP student rights. The strongest federal pro­tection for the educational rights of LEP students is currently the Equal Educational Opportunities Act (EEOA). Section 1703(f) of the Act states:

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 steps to overcome language barriers that impede equal participation by its students in its instructional programs.

The focus of the EEOA was school bus­ing, and there is no elaboration in the law on the rights of LEP students. The meaning of Section 1703(f) and its impact on programming for LEP students has been derived, therefore, from judicial in­terpretation, which has focused on the phrase "appropriate action." What must school districts do to protect the rights afforded to LEP students by the EEOA? The standard for complying with the leg­islation has evolved from several federal court cases: Castaneda v. Pickard, 1981; Idaho Migrant Council v. Board of Edu­cation, 1981; Keyes v. School District No. 1, 1983; and Gomez v. Illinois State Board of Education, 1987. The basic require­ment that derives from these cases is that LEP students must receive equal access to the curriculum. "Appropriate action" as interpreted by federal courts includes:

• program based on sound educa­tional theory.
• The allocation of trained personnel and the material resources neces­sary to implement the program.
• An evaluation and feedback process.

Equal access as defined by the courts does not require bilingual programs. Equal access does, however, prohibit districts from placing LEP students in class­rooms where they cannot understand the language being spoken. A careful read­ing of federal case law would suggest that districts should provide an affirma­tive program that:

• Addresses the development of En­glish language skills for LEP students, and
• Assures that LEP students do not learn less because of their lack of knowledge of English.

State Law

In the 1970s following Lau, many states passed legislation mandating services to LEP students. In the 1980s, however, as federal support for bilingual education became more uncertain, several states, including California and Colorado, elimi­nated their mandates for bilingual edu­cation.

In states that have bilingual education laws, the requirements for services to LEP students are fairly straightforward. State laws provide for the identification and assessment of LEP students, describe pro­gram options to serve them, and specify requirements for staffing. Also, state laws usually set forth requirements for parent involvement. In states where broad-scale bilingual programs are mandated, such as Arizona, Illinois, Indiana, Massachusetts, Rhode Island, and Texas, the emphasis is generally on transitional programming, although other forms of programs are allowed. Twenty-two states now have bilingual education statutes (Piatt, 1990).

A State Without a Mandate: California

Not all states with large populations of LEP students mandate bilingual programs. California is the prime example. From 1980 to 1987 the Chacon-Moscone Bilin­gual-Bicultural Education Act mandated bilingual programs in California. Under that law, districts were required to estab­lish bilingual classrooms staffed by certi­fied bilingual teachers if a school had ten or more LEP students at the same grade level, speaking the same primary lan­guage. Individualized services were re­quired in cases where classrooms were not warranted by numbers, and at the secondary level. Provisions of the law also addressed parent involvement.

California's bilingual education mandate lapsed in 1987 when the governor ve­toed its reauthorization. As a result of a quirk in California state law, however, districts are still required to carry out the original purposes of the law. The original purposes of the bilingual education law are vaguely stated, and in the absence of a clear mandate, services vary exten­sively from district to district. Many dis­tricts with large populations of LEP stu­dents maintain programs comparable to those previously required. Others are ex­perimenting with various forms of ESL instruction and sheltered methodologies.

One such program was challenged in federal court in Teresa P. v. Berkeley Unified School District in 1989. In that case, advocates for services for LEP stu­dents tried to clarify the meaning of "ap­propriate action" as it appears in the EEOA, hoping to strengthen the stan­dards set forth in other federal cases and broaden their application with a compa­rable decision in California. Unfortunately, the court's decision in Teresa P. was vague and narrow, and it failed to set a direction for California's public schools.

The Florida Consent Decree

Florida, another state with a large popu­lation of LEP students, had no statewide standards for serving them until 1990. Recently, as a result of a lawsuit by a coalition of agencies representing the in­terests of LEP students, Florida entered into a consent decree that outlines a plan for serving LEP students. Under the pro­visions of the plan, LEP students will be identified and assessed, programming aimed at providing access to the curricu­lum will be implemented, teachers will be trained in ESL and bilingual method­ologies, principals and administrators will be trained in the provisions of the con­sent decree, and outcome measures will be developed. In other words, Florida has consented to establish services that meet the criteria developed in the fed­eral courts to define "appropriate action."