William N. Myhill. Program Associate, Law, Health Policy & Disability Center, University of Iowa College of Law, http://disability.law.uiowa.edu/. J.D., The University of Iowa (Managing Editor, Iowa Law Review); M.Ed. (Kappa Delta Pi - Educational Honor Society), B.A., The University of Texas- Austin. My many thanks to friends and colleagues on the volume 8 Editorial Board of The Journal of Gender, Race & Justice (JGRJ)-Jenn Smith, Paul Kraus, Alissa Klein, Bill Freeland, Naomi Leiserowitz, Andy Hutchison, Eric Nemmers, Jay Smith, and Sarah Wheelock-for inviting me to participate in this symposium. Further thanks for the insightful, collegial suggestions of Shernaz GarcÌa, William Buss, Michael Waterstone, Steven Chamberlain, Jonathan Jordahl, Amy Johnson, Peter Blanck, James Schmeling, and LeeAnn McCoy. My gratitude to Professors Millicent Kushner, Shernaz GarcÌa, and Alba Ortiz, who, through my graduate training in the Bilingual Special Education program at the University of Texas, advanced my appreciation for cultural pluralism and advocacy for culturally and linguistically diverse children with and without disabilities.
Historically, the United States has been viewed as a melting pot of cultural and linguistic diversity.1 In practice, however, persons who are culturally and/or linguistically different from the dominant, Euro-American2 society largely have been expected to learn English and conduct themselves according to white, middle-class norms.3 By the close of the twentieth century, the melting pot metaphor had long been reflective of a "cultural deprivation" paradigm, viewing the cultures and languages of culturally and linguistically diverse4 persons as inferior to those of the dominant society.5 Our educational institutions, in particular elementary and secondary schools (K-12), preponderantly embrace the cultural deprivation paradigm with respect to students who are not proficient in English (i.e., English Language Learners).6
Over the last three decades, schools that do not embrace the cultural and
Page 395 linguistic differences of their student populations have fast-tracked English language learners (ELLs) into special education programs.7 Schools unwilling or unable to embrace the cognitive and linguistic needs of these students destine many of them to a future lacking in achievement compared to their Euro- American peers.8 Moreover, politically driven policy decisions, reliance upon the ubiquitous less-than "scientific" research, and poor design and implementation of language development programs have thwarted broad-scale, consistent implementation of educational services that have been proven to raise and sustain the cognitive and linguistic development of ELLs to a level of parity with that of their Euro-American peers.9
Since 1998, steps taken by California, Arizona, and Massachusetts, as well as by the federal government, specifically have retracted the availability of services for the cognitive and linguistic development of ELLs in favor of a single year of English-only (i.e., "immersion") services.10 These English immersion initiatives are premised largely on the belief that on-going supports and services for the non-native English-speaking child's first language are an ineffective means of closing the achievement gap between ELLs and Euro- American students.11 Thomas and Collier demonstrate, however, that inadequately designed, supported, or implemented services, sub-standard research, and the phenomenon of the moving target, are in fact the bases of public disenchantment with bilingual education.12 Additionally, school administrators and policymakers have insisted that the best research- concluding that "at least 5-7 years, on the average" of native language support is necessary to achieve parity between ELLs and Euro-American students-
Page 396must be wrong.13 The political forces behind these initiatives consistently fail to understand how models that exclusively focus on the acquisition of the second language-ignoring ELL needs for further cognitive and linguistic development in their native language-are "lucky" when they achieve parity in five to seven years, and are much more likely to require eight to ten years.14
The Equal Educational Opportunities Act (EEOA)15 guarantees the rights of students with limited English proficiency to full participation in a school's programs.16 CastaÒeda v. Pickard,17 a broadly recognized, Fifth Circuit opinion, provides the standards under which educational programs for these students are evaluated. CastaÒeda construes the "appropriate action" mandate of ß 1703(f) of the EEOA to require, inter alia, that the instructional programs implemented for limited English proficient students will enable them to achieve parity with their native English speaking peers, so as to benefit fully from the educational opportunities available to all other students.18
Yet, the third prong of the CastaÒeda "appropriate action" analysis19explicitly requires that a program of purported appropriate action will be "employed for a period of time sufficient to give the plan a legitimate trial" before a court meaningfully is able to evaluate the program.20 Under the cover of "sufficient time," English-only initiatives are allowed to skirt past the CastaÒeda and EEOC mandates. For example, shortly after the 1998 voter approval of California's referendum to implement English-only instruction- Page 397 Proposition 227-a federal district court in Valeria G. v. Wilson21 was unable to evaluate whether Proposition 227 constituted appropriate action because it was yet to be implemented; that is, regulations were on the drawing board for implementation in the coming 1998-99 school year.22 Therefore, in the absence of longitudinal data bearing on a program's efficacy, it is unlikely that English- only initiatives can be enjoined. Six years down the road, however, longitudinal data are emerging in California.23
As I was asked to address this Symposium from a practitioner's perspective of disability and diversity in primary and secondary educational settings,24 this Article shall strongly implicate educational policy. Nonetheless, from a legal perspective, this Article will address the trends over the last decade that have eroded appropriate educational opportunities for ELLs in the United States, and question the validity of English-only programs under the EEOA. Part I of this discussion presents historical and changing perspectives of meeting the needs of ELLs. Part II discusses the necessity for public schools to provide a continuum of second language learning opportunities for the varying needs of ELLs in light of sound research and best practices. Part III reviews the turbulent life of bilingual education in the United States and the status of services for ELLs in 2004.
Thereafter, Part IV will present and discuss achievement data from California indicating a widening of the already significant achievement gap between ELLs and the greater school age population. Subsequently, I apply the CastaÒeda appropriate action analysis in the California context. This Article concludes that under CastaÒeda, programs for serving ELLs, like that in California with a history of performance data demonstrating an on-going cultural deprivation paradigm, are likely to be found in violation of the Equal Educational Opportunity Act for failing to meet the academic and linguistic needs of English language learners.
A final word of introduction: I have attempted what I believe to be a unique goal for this Article in light of it appearing in a scholarly legal periodical. The bilingual education debate is fraught with inaccurate perceptions of what English proficiency is, and what it takes to acquire proficiency. Part II, enunciating the pedagogy of second language acquisition, is written for the politicians, attorneys, and judges who are on the firing line. Though the CastaÒeda court rightfully acknowledged that courts are "ill-equipped" to establish pedagogy-a role "properly reserved to . . . state and local educational Page 398agencies"25-there are times as these, "[c]onfronted reluctantly," where the federal courts must fulfill their responsibilities assigned to them by Congress26and not permit a school "to persist in a policy, which . . ., has, in practice, proved a failure."27
We are the heirs of all time, and with all nations we divide our inheritance. On this Western Hemisphere all tribes and people are forming into [a] federated whole; and there is a future which shall see the estranged children of Adam restored as to the old hearth-stone in Eden.
- Herman Melville28
The waves of nineteenth century immigration to the United States brought representatives of nearly every language, culture, and people of the European continent.29 Certain pronounced reasons-famine, war, persecution, poverty30-spurred many; though by the eve of that century, Melville's characterization of the possibilities for life in the United...