INTRODUCTION TO BILINGUAL EDUCATION: LEGAL ISSUES,

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INTRODUCTION TO BILINGUAL EDUCATION:LEGAL ISSUES, TEXAS EDUCATION AGENCYGUIDELINES, MODELS AND RESEARCHA TRAINING MODULEPUBLISHED AS PART OF THELEP STUDENT SUCCESS INITIATIVE GRANTDepartment of P-16 InitiativesTexas Education AgencyIn Collaboration withThe Institute for SecondLanguage Achievement (ISLA)Texas A&M University at Corpus ChristiAndThe Advocacy Systems for EducationCedar Park, TexasMay, 2006A Training Module for Capacity BuildingMay 2006Page 1

Table of ContentsINTRODUCTIONI. THE EVOLUTION OF BILINGUAL EDUCATION Early Beginnings Language Minority Students Limited English Speaking Ability [LESA] Limited English Proficient [LEP] English Language Learners [ELL]II. STATE DEMOGRAPHICS Enrollment Trends [Overall] Enrollment Trends [Language Minority] Enrollment Trends [LEP] Grade Levels Impacted by Enrollment Growth Implications of Rapid Growth Teacher Diversity and AvailabilityIII.BILINGUAL EDUCATION MANDATES Title VI of the Civil Rights Act of 1964 Title VII of the Elementary and Secondary Education Act of 1968 OCR National Origin Memorandum Lau vs. Nichols Equal Education Opportunity Act of 1974 Lau Remedies Bilingual Education Legislation in Texas Civil Action 5281 Senate Bill 477 Title IIIIV. STATE’S CURRENT POLICY, 19 TAC CHAPTER 89 Policy and Implementing Regulations Definitions When is Bilingual Education or ESL required? Exceptions and Waivers Program Content; Method of Instruction Enrollment of Students Facilities and Classes Assignment of Teachers to a Program Compliance with Statute Language Proficiency Assessment Committees EvaluationA Training Module for Capacity BuildingMay 2006Page 2

V. PROGRAM MODELS Bilingual Education Dual Language Immersion ESLVI. THE TEXAS SUCCESSFUL SCHOOLS STUDY Background Purpose Design Scope Criteria for Participation FindingsVII. EXAMPLES OF NON COMPLIANCE CITATIONSVIII. FREQUENTLY ASKED Q/AAPPENDIX Senate Bill 477 19 TAC Chapter 89. Subchapter BBREFERENCESA Training Module for Capacity BuildingMay 2006Page 3

INTRODUCTIONThis document, an “Introduction to Bilingual Education: Legal Issues, TexasEducation Agency Guidelines, Models and Research” was developed as a trainingmodule as part of the LEP Student Success Initiative Grant of the Texas EducationAgency for 2005-2006. Lead responsibility for production of the training module wascommissioned to the Institute for Second Language Achievement (ISLA) at Texas A&MUniversity—Corpus Christi. The Institute collaborated with the Advocacy Systems forEducation of Cedar Park, Texas in the production of this training document.The training module contains a multitude of information regarding how bilingualeducation evolved in the United States and Texas. This document provides: an overviewof the mandates and legal issues associated with bilingual education and the education oflanguage minority students, a section devoted to the Texas Education Agency guidelinesthat are currently in place, a description and findings of the Texas Successful SchoolsStudy: Quality Education for Limited English Proficient Students (TEA, 2000), andinformation on the characteristics and features of program models that are required, ormay be implemented within the framework of the state policies on educating the limitedEnglish proficient population in Texas public and charter schools. The module alsoincludes sections on examples of noncompliance and frequently asked questions andanswers, respectively. The training module is supplemented by a PowerPointpresentation with accompanying script for professional development and specific trainingof teachers, campus principals, other administrators, school board members and parents.This publication is being shared with educators and administrators throughout thestate as a leadership effort on the part of the Texas Education Agency and the Institute forSecond Language Achievement at Texas A&M University—Corpus Christi. Thisdocument has been developed to assist them in capacity building efforts andimplementation of bilingual education and English as a second language programs toaddress the linguistic and academic needs of limited English proficient students. In orderto meet the challenging state content [TEKS] and student performance standards [TAKS]standards for all students, including the ever-increasing LEP population, Texas publicand charter schools must ensure that no child is left behind in meeting these standards.This training module has been developed as a resource to assist in the teaching of, andlearning by, language minority students in their efforts to acquire effective Englishproficiency. The module is intended to assist in teacher training, program design,implementation, and overall enhancement of developmentally appropriate languageresponse programs for LEP students, be it a bilingual education, or English as a secondlanguage program, as may be required.Questions on the publication: Introduction to Bilingual Education: Legal Issues,Texas Education Agency Guidelines, Models and Research may be directed to theInstitute of Second Language Achievement at the Texas A&M University—CorpusChristi at 361-825-2198.A Training Module for Capacity BuildingMay 2006Page 4

I. THE EVOLUTION OF BILINGUAL EDUCATIONEarly BeginningsThis country has been referred to as “the melting pot” because of the continuousinflux of immigrants since the landing at Plymouth Rock and the establishment of theThirteen Colonies. Initially, the influx of immigrants was primarily from parts of Europe.As the number of immigrants grew, so did the fears of native-born Americans about theinability or unwillingness of these new immigrants to assimilate into the so-called AngloAmerican culture. English was proposed as the national language by Noah Webster, whosought endorsement from the Supreme Court in 1831. His proposal was denied. Out ofsuch concerns, the first English only movements surfaced, which politically contributedto restrictive immigration policies in the early 1900’s.(See .html ).For children of parents who spoke a language other than English, getting aneducation in the early 1900’s and up to 1960, was very difficult, if not impossible. Themethod of instruction for the language minority students was English immersion, whichhas come to be known as the “sink or swim” approach. Under this method of instruction,students were held back until they mastered enough English to pass the courses ofinstruction in the curriculum. Texas school districts followed the national normregarding the education of Mexican American children resulting in over-representation ofthese language minority students placed in mental retardation classes of specialeducation, or dropping out of school. In the 1950s and 1960s, children (MexicanAmerican) were placed in such classes, based on teacher determination and IQ testingand were programmed for an English-only remedial facility. The IQ tests administeredwere in English, requiring English language proficiency, which very few of the MexicanAmerican children had. Even teachers were prohibited in the Texas Penal Code of 1925from teaching in a language other than English. Any teacher violating the law could befined, lose their teaching certificate, and/or be removed from office. This English onlypolicy was repealed with the passage of the state law making bilingual educationpermissive in 1969. (Bernal, 1978) In Texas, corporal punishment continued to beadministered to Mexican American children who were caught speaking Spanish in theclassrooms, or the playground, even after the repeal of the English Only law in 1969.The plight of language minority parents and students experienced some redressfrom a series of national and state laws/policies that focused on the language rights oflanguage minority students and designation of a language minority group as a “protectedclass” under the Equal Protection Clause of the Fourteenth Amendment of the U. S.Constitution. A number of lawsuits were filed against states (example: U. S. vs. Texas)and school districts (example: Lau vs. Nichols) by civic organizations and legal advocacygroups as interveners on behalf of the language minority population. As a result of thislitigation, the need and right to bilingual education became a national and state politicaland educational issue. The policies and laws which ensued evolved in response to federalcourt orders and summary judgments mandated of defendants for remedy to plaintiffs.The judicial, congressional and legislative history is detailed under Section III.BILINGUAL EDUCATION MANDATES starting on page 11 of this document.A Training Module for Capacity BuildingMay 2006Page 5

Language Minority Students—Language Other Than English [LOTE]The term language minority has been used for students who come fromhouseholds where the language spoken or heard is other than English. According to theethnic classification and distribution of a multi-lingual population in the United States,the U. S. Census and other federal reports compiled accept the number of languageminority persons as different from the number of White and African American personswho are viewed as English-speaking. There have been challenges from AfricanAmerican advocacy groups that the nation’s African American community-at-large hassegments of its population that are also language minority, or multi-lingual, by virtue ofthe influx of immigrants from non-English speaking countries who are procedurallysubsumed in the African American classification. When bilingual efforts first wereembraced by the U. S. Office of Education as part of the Department of Health,Education and Welfare, the language minority student populations were referred tochildren with a language other than English and grouped under the acronym LOTE.Limited English Speaking Ability [LESA]The enactment of the Bilingual Education Act of 1968 gave birth to anotherclassification of language minority students. This classification represented the studentpopulation who were limited in their English-speaking ability, and as a result, functionedat a lower level than children who were not limited in the English language. Thesestudents were classified as “limited English speaking ability” or LESA.Limited English Proficient [LEP]With subsequent amendments to Title VII, i.e., the Bilingual Education Act of1968, a new term surfaced with regard to classification and reporting of students who haddifficulty with the English language. This new term was “limited English proficient” andwith it came still another acronym known as LEP. The term “limited English proficient”is not universally accepted because, according to segments of the professional bilingualeducator and researcher communities, the descriptor “limited” is stigmatizing. In spite ofcontinuous opposition to this classification, LEP is still the prevailing acronym in Title IIIof the No Child Left Behind Act of 2001, and the public policy on bilingual education inTexas since June 1981.English Language Learner [ELL]The term “English Language Learner” is a preference in some states and by somelanguage minority educators, bilingual education advocacy groups, and researchers. It isnot a formal classification, particularly in Texas, since it does not align within the policyframework of the state law. The trend appears to indicate that this term will be morepervasive when speaking of children from language minority backgrounds, who arehaving difficulty with the English language. For purposes of this training module, LEPand ELL are used interchangeably.A Training Module for Capacity BuildingMay 2006Page 6

II. STATE DEMOGRAPHICSEnrollment Trends [Overall]According to PEIMS data available with the Texas Education Agency, the totalstudent enrollment in our public schools went from 3,464,371 in 1991-92 to 3,748,167 in1995-96. This represents an increase of 283,766 new students in Early Educationthrough the twelfth grade (EE-12). The ethnic breakdown for the four years reviewedwas:Students1991-92White1,697,869 (49%)Hispanic1,192,063 (34%)African American495,658 (14%)Asian/Native American 78,781 (2%)TOTALS3,464,371 (100%)1995-961,739,613 (46%)1,375,896 (37%)536,386 (14%)96,272 (3%)3,748,167 (100%)Gains41,744 (2%)183,833 (15%)40,728 (8%)17,491 (22%)283,796 (8%)The figures above show a significant change in the ethnicity of the state's studentenrollment from 51% minority in 1991-92 to 54% in 1995-96, making Texas a majorityminority public school population. While every ethnic group experienced an increase insheer numbers during the four year period analyzed, it is important to note that Whiteenrollment decreased by 3 percentages points, African American enrollment remainedconstant at 14%, while Asian and Native American enrollments combined increased by1% point. Hispanic enrollment accounted for the most significant growth with anincrease of three percentage points from 34% to 37%.Enrollment Trends [Language Minority]When the actual increase of 283,796 students as shown above is analyzed byethnicity, the figures show a very different picture. To illustrate: The graphic belowshows that White students represented only 15% of the new student enrollment duringthis time period, whereas Hispanics accounted for 65% of the new student growth.African American students were constant with no consequential growth, with Asian andNative American enrollments combined representing 6% of the growth.White41,724 (15%)Hispanic183,833 (65%)African American40,728 (14%)Asian/Native American 17,491 (6%)TOTAL283,796 (100%)When these figures and corresponding percentages are contrasted with the totalState figures, the following is evident. The demographic changes in the State documentthat language minority students, e.g., Hispanic and Asian/Native American representedapproximately 70% of all new growth over the four year period, while English-speakingstudents, e.g., White and African American only represent 29% of the new enrollment.A Training Module for Capacity BuildingMay 2006Page 7

Enrollment Trends [LEP]Recognizing that on the average 30% of the state's language minority studentpopulation is historically identified as limited English proficient, the followingextrapolation methodology documents the statewide priority need for bilingual and ESLteachers. To illustrate:Hispanic and Asian American students as shown in the previous page underEnrollment Trends [Language Minority] represented the new language minority studentpopulation. Combined, these two groups totaled 201,324 students. Thirty percent(percentage is equivalent to state average of limited English proficient studentpopulation) of the language minority total translated to 60,397 LEP students requiringeither bilingual education or ESL depending on their grade level. When parent denials,waivers and exceptions were factored in, we can safely say that at least 50% of the newLEP population needed a specially trained teacher. This would mean that the newstudent population placed an additional demand for over 3,000 bilingual/ESL teachersthroughout the state over this four-year period. All of the universities with approvedteacher training programs produced less than 500 bilingual and ESL teachers each year.Relying on an expectation that all 500 bilingual and ESL teachers were employed inTexas school districts each year, there still remained a shortage of 1,000 teachers to workwith the LEP population. The reality of these enrollment increases, which will continueaccording to state demographers, is that this growth is not a characteristic that occurs onan even keel across the state. The school districts with a high incidence of LEP studentsare faced with even a greater dilemma to hire and retain an adequate number of teachersfor the bilingual education and ESL programs.This demand is exacerbated more each year by the number of vacancies createdby teachers (approximately 10% or 24,000) who leave the teacher workforce for otherjobs, promotions, or retirement. Teacher demand in Texas is met through professionaldevelopment; out-of-state recruitment, in-state recruitment of former teachers and thealternative certification program. Three years after alternative programs were instituted;a maximum of 15% teacher graduates could be attributed to this statewide effort.School districts are unable to train, recruit and retain an adequate number ofteachers who can work with special needs children, particularly those districtsexperiencing rapid growth rates. The consequence of this demographic phenomenon isthat districts resort to hiring permanent substitutes "off the streets". This practice greatlydetracts from the quality of program and the poor academic performance by the LEPstudents is reflected in the accountability ratings by TAKS reports.Grade Levels Impacted by Enrollment GrowthThe Texas Successful Schools Study devoted an effort to analyze the enrollmenttrends of limited English proficient students over a six-year period from 1991-92 to 199798. The analysis revealed that Texas public schools experienced an increase of 44percent in the LEP population. Although the increase indicated a total growth of 44percent in the LEP population, it is important to note that 122,526 or 77 percent of the158,794 new LEP students were enrolled in elementary grades in 1997-98. Theenrollment figures for each of the 20 education service centers in the state indicated thatapproximately 85 percent of all new LEP student enrollment was evident in six of the 20service center areas. The growth trend of the LEP population in Texas public and charterA Training Module for Capacity BuildingMay 2006Page 8

schools continues in similar fashion in 2005-2006. According to TEA PEIMS data, theLEP population increased by an additional 164,098 students from 1997-98 to 2005-2006.(TEA, 2005).Implications of Rapid GrowthIn numerous school districts throughout Texas, the challenge to have bilingualteachers to offer the required program can surface from one year to the next. Districtsexperiencing rapid growth can go from an ESL program requirement to a bilingualeducation program requirement. According to the state policy, a district that has one ormore LEP students identified, but less than 20 in any grade level, is required to offer anESL program to all LEP students in PreK thru the 12th grade. Once these districts havetwenty or more LEP students of the same language classification, e.g., Spanish, in anyone grade level, the bilingual program mandate is triggered in Grades PreK-5. Thesedistricts invariably are lacking the teachers, funding and materials to address thelinguistic needs of the LEP students in the elementary grades.The consequence of this rapid growth is that these school districts have to requestan exception to the bilingual education program with the commissioner of education, orbe cited for non-compliance with the state’s policy. In 1997-98, over 40,000 of thestate’s LEP students in the elementary grades were reported in exceptions to the bilingualeducation program as requested by 85 of the 246 school districts required to providebilingual education. For the 2005-2006 school year, over 300 school districts arerequired to offer bilingual education. This represents a 22 percent increase over thenumber of districts required to provide bilingual education in 1997-98.Teacher Diversity and AvailabilityBased on the PEIMS data available at the Texas Education Agency, the totalnumber of teachers in our public schools for the four year period went from 212,563 in1991-92 to 240,593 in 1995-96. This represented an increase of 28,030 new teachershired in the public schools across all grade levels during this four-year period. The ethnicbreakdown for two of the four years analyzed was:TeachersWhiteHispanicAfrican ,030(13%)When the actual increase of 28,030 new teachers is analyzed, the figures show avery different ethnic picture. To illustrate:WhiteHispanicAfrican AmericanAsian/Native 28,030(100%)A Training Module for Capacity BuildingMay 2006Page 9

A further correlation of percentages between cumulative student enrollmentfigures and cumulative teacher numbers for the same time period (1995-96) reflect a widedisparity between representation of student populations by ethnicity and representation ofteacher availability by matched ethnicity. See graphic below:Student Totals for 1995-96White41,724 (15%)Hispanic183,833 (65%)Afr Amer40,728 (14%)Asian andNative Amer 17,491 (6%)TOTAL283,796 (100%)Teacher Totals for 1995-9618,541 (66%)7,115 (25%)1,420 (5%)954 (3%)28,030 (100%)According to information available from the State Board for EducatorCertification (SBEC) for 1996-97, approximately 95 percent of the total number ofteachers assigned to non-bilingual classrooms in Grades 1-6 were certified for theassignment. For bilingual classrooms, the data revealed that only 59 percent of the totalnumber of teachers assigned to the LEP population in Grades 1-6 were certified for theassignment.A Training Module for Capacity BuildingMay 2006Page 10

III.BILINGUAL EDUCATION MANDATESThe most significant Supreme Court decision that contributed to a nationalsensitizing regarding the needs of disadvantaged students came in 1954 by way of theBrown v. Board of Education decree. Although the court’s ruling pertained todiscriminatory practices or segregation on the basis of race, it surfaced a clear concept ofunequal education. This decision overturned the 1896 Supreme Court ruling on Plesseyv. Ferguson which supported the “separate but equal” practice. (NCELA, 2002). Thisformed the basis for subsequent court rulings and congressional posturing in the contextof educating limited English speaking ability (LESA) students, later classified as limitedEnglish proficient (LEP). The remainder of this section describes the primary focus ofpublic policy mandates and court orders that have impacted bilingual education, ESL andlanguage minority students.Title VI of the Civil Rights Act of 1964The U. S. Congress passed this legislation which stated the concept of equality infederal law. This bill prohibited discrimination on the basis of race, color, or nationalorigin. The full force of the law applies to federal grantees, e.g., entities that receivefederal funds. Today, the U. S. Office for Civil Rights (OCR) of the Department ofEducation uses the Title VI Act of 1964 to conduct compliance monitoring/visits toschool districts throughout the country. (See National Origin Memorandum of 1970 inthe following page).In Texas, based on a Memorandum of Understanding, between the TexasEducation Agency and the Office for Civil Rights, OCR conducts compliance monitoringusing the rules and regulations promulgated by the commissioner of education to educatethe LEP population. When a district is in violation of the Texas policies on bilingualeducation, it is usually considered to be in violation of Title VI of the Civil Rights Act of1964 as amended.Title VII of the Elementary and Secondary Education Act of 1968The first official federal recognition of the needs of LESA students came aboutwith the enactment of Title VII of the Elementary and Secondary Education Act (ESEA)of 1968. ESEA was first passed as a law of the “Great Society Programs” underPresident Lyndon Johnson. The Bilingual Education Act, as Title VII was known,attempted to remedy civil rights violations in school districts throughout the country byencouraging instruction in a language other than English, as well as cultural awareness.Districts wishing to receive federal funds under Title VII had to compete for the fundsand were not explicitly required to offer bilingual education or the use of the students’native language for educational purposes. Federal grants were awarded from three to fiveyears, after which time a school district was to assume the continued costs of theprogram. The Bilingual Education Act was revised numerous times by subsequentcongressional amendments until it became Title III of the No Child Left Behind Act of2001. See Title III on page 16 of this document.A Training Module for Capacity BuildingMay 2006Page 11

National Origin MemorandumThe U. S. Office of Civil Rights issued a national memorandum to school districtswith more than five percent national origin-minority group children. This memorandumcame to be known as the May 25th 1970 National Origin Memorandum. TheMemorandum clarified the Department of Health Education and Welfare’s (DHEW)policy on issues concerning the responsibility of school districts to provide equaleducational opportunity to national origin-minority group children deficient in Englishlanguage skills. (DHEW, 1970) In order to be in compliance with Title VI of the CivilRights Act of 1964, school districts receiving federal funds had to: Take effective steps to rectify the language deficiency in order to open itsinstructional program to these [LESA] students Not assign students to classes for the mentally retarded on the basis of criteriawhich essentially measure or evaluate English language skills; nor deny nationalorigin-minority group children access to college preparatory courses on a basisdirectly related to the failure of the school system to inculcate English languageskills Design any ability grouping or tracking system to deal with the speciallanguage skill needs of these children to meet such language skills as soon aspossible and must not operate as an educational dead-end or permanent track Notify national origin-minority group parents of school activities which are calledto the attention of other parents, in a language other than English in order to beadequate, and Conduct a self-assessment to determine if any of these requirements were notbeing presently met and communicate with the U. S. Office for Civil Rights ofthis determination and submit a corrective action plan to remedy these practicesLau vs. NicholsUnder the Supreme Court ruling of Lau v. Nichols in 1974, and pursuant to alawsuit brought about on behalf of 1,800 Chinese American students against the SanFrancisco Unified School District, the district as defendant was ordered by the Court tofashion appropriate relief that would discontinue the denial of “a meaningful opportunityto participate in the public educational program, subject to Court approval.”The Lau decision triggered many other significant developments. It raised thenation’s consciousness for the need of bilingual education, encouraged Congressionalpassage of the Equal Educational Opportunities Act of 1974, provided federal funding fornine Lau centers, and generated more lawsuits favorable to bilingual education. (Bernal,1978).The Court found that OCR had correctly interpreted the Civil Rights Act of1964, and that the rules laid out in the agency’s 1970 memorandum essentially carried theweight of law. (TEA, Report 10)Equal Education Opportunity Act of 1974The educational needs of the student language minority community of thiscountry were once again protected and highlighted by virtue of the enactment of theEqual Education Opportunity Act in August of 1974. The federal law gave an individualthe right to file a complaint or lawsuit if s/he was denied equal educational opportunity.A Training Module for Capacity BuildingMay 2006Page 12

Circumstances which constituted a denial included “the failure by an educational agencyto take appropriate action to overcome language barriers that impede equal participationby its students in its instructional program.” Under this law, a violation of equaleducational opportunity includes a disparate or different impact and not justdiscriminatory intent. Twenty years after Brown v. Board of Education, the practice ofunequal education for children was legislated by the Equal Education Opportunity Act of1974—a federal law that had to be carried out by thousands of school districts in theUnited States. The wording of the law obliged all school districts, and not only thosereceiving federal funds to comply with Title VI of the Civil Rights Act and the OCRguidelines of 1970. The court decision, e.g., Civil Action 5281, affecting limited Englishproficient students in Texas was predicated in part on the guidelines imposed by theEqual Education Opportunity Act of 1974. See Civil Action 5281 on page 14 of thisdocument. (TEA, Report 10)Lau RemediesThe Department of Health, Education and Welfare followed in similar fashion asit did when the Department distributed the May 25th National Origin Memorandum. Toassist school districts with the 1974 Lau Supreme Court ruling, the Lau Remedies wereissued as guidelines by the Department in 1975. Basically, the guidelines incorporatedthe intent of the Department’s policies noted for national origin-minority group studentsissued by the U. S. for Civil Rights in the May 25th National Origin Memorandum. Thedifference was that where the National Origin Memorandum focused on school districtswith five percent or more national origin-minority group children in a district, the LauRemedies required school districts to submit a voluntary Civil Rights compliance plan ifthey had 20 or more students of the same language group. The Lau Remedies served asthe guidelines for the development of the educational plan required.Bilingual Education Legislation in TexasBilingual education in Texas public schools was first legislated as early as 1959under a law intended to improve the communication skills of non-English speakingchildren before they entered first grade. In 1964, Laredo United Consolidated ISD andthe San Antonio ISD were experimenting with bilingual education programs in theelementary grades. The first bilingual education bill, however, did not come about untilfive years later. This l

Thirteen Colonies. Initially, the influx of immigrants was primarily from parts of Europe. As the number of immigrants grew, so did the fears of native-born Americans about the inability or unwillingness of these new immigrants to assimilate into the so-called Anglo-American culture. English

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