Jim Young/REUTERS

A 40-year-old Supreme Court decision obligates schools to assist English-language learners. San Francisco has just been ordered to figure out how.

Population spikes of more than 135 metropolitan areas between 2010 and 2012 were due more to people coming from other countries than to domestic growth. And a recent Census report revealed that more than 11 percent of the nation’s 3,142 counties are now majority-minority. When it comes to any kind of migration, a city’s vitality depends heavily on how well it cares for its new neighbors, especially if they differ ethnically or culturally from the population receiving them. This hinges largely on how successfully young immigrants and children of immigrant families are welcomed into the school systems of the cities they land in.

The landmark 1974 U.S. Supreme Court decision Lau v. Nichols aimed to make that school transition easier for young people who speak English as their second language. That decision relied on the prior 1954 Brown v. Board of Education decision and the Civil Rights Act to force all school districts receiving federal funding to establish multi-lingual programs to ensure all students have equal educational opportunities, regardless of their national origin.  

For the Lau case, the San Francisco Unified School District was ordered to create a master plan that would accommodate its Chinese, Latino, and Filipino students. The terms of that plan have served as the blueprint for plenty of other school districts that have been ordered by courts to develop programs for English-language-learners over the past four decades. Yet even as cities and school districts have grown more diverse due in large part to immigration, many of them are still struggling with—or resisting—helping these students.

The U.S. Department of Justice called out the Palm Beach County school district earlier this month for implementing measures that discriminate against Spanish-speaking families. And even the consent decree formed by Lau for the San Francisco Unified School District some 40 years ago has required updating to meet the ever-diversifying demographics of the region—made more so recently by the influx of foreign families drawn there by Google, Apple, and other Silicon Valley job magnets. Just this week, a federal court approved a modified consent decree for San Francisco’s 16,000 English Learner (EL) students. According to a Justice Department press release, the new plan will:

  • assure that EL students are appropriately identified and placed when they begin school;

  • provide families with a suite of service options for their EL students’ education;

  • ensure that EL students with disabilities receive language programs and services;

  • require employees who serve EL students to have training appropriate to their roles;

  • protect the educational rights of the district’s most at-risk and vulnerable EL students who are learning in alternative education or juvenile justice settings;

  • communicate with Limited English Proficient families in a language they understand; and

  • conduct robust monitoring.

It’s the first major consent decree on the issue since the Department of Justice and the U.S. Department of Education issued a joint guidance in January for school districts to follow to meet legal obligations for serving English-learning students. Surprisingly, it’s the first such guidance since Lau that condenses the myriad federal laws governing such obligations. There have been piecemeal guidances prior to this, which school districts have found ways to work around—or ignore.

According to the Justice Department, almost five million students, or 9 percent of all public school students, are English learners today. The percentage of English learners in public schools increased in 40 states and the District of Columbia between 2002 and 2011. The implications for those students when language barriers go unaddressed include not only poorer academic performance, but also greater tendencies of getting reprimanded, suspended, or expelled, often because of communication problems.

When advocates discuss the “school-to-prison pipeline,” they often reference the fact that African-American students are far more frequently sent home from school as a disciplinary measure than white students. Sometimes overlooked in that discussion is that Latino immigrant students fare pretty badly in that pipeline, as well. The Lau case was created, in part, because the children of Chinese families were too often falling into disciplinary trouble with schools in the 1970s. As the National Asian Pacific American Legal Consortium wrote in recognizing Lau’s legacy:

In 1970, only 37% of the 2,856 Chinese-speaking students in the school district needed special English language instructions received specialized assistance. Of the remaining students who did receive English language assistance, more than 59% did not receive such assistance on a full-time basis. Finally, there were enough bilingual Chinese-speaking teachers to teach only 9% of the total Chinese-speaking student population who needed special English language instructions. These inadequacies caused difficulties and frustration among the LEP Chinese-speaking students, resulting in increased rates of truancy, delinquency, and drop-outs within an ethnic group that had previously been considered a “model minority.”

Things haven’t improved much since the Lau decision. A 2005 Pew Hispanic Center study found that foreign-born teens made up 8 percent of the nation’s teen population, but 25 percent of teen dropouts. Other key findings from that report:

  • The small share of foreign-born teens who arrived recently and had education difficulties before migration have an exceedingly elevated school dropout rate. More than 70 percent of such teens are high school dropouts.

  • The pattern of dropout rates by age at arrival and prior schooling history applies to foreign-born teens from all countries of origin.

  • The importance of recently arrived teens with prior education difficulties varies from country to country, but nonetheless, such youths have much greater dropout rates regardless of country of origin.

One of the salient features of the new Lau consent decree in San Francisco is that it extends its terms to five schools within its district that serve detained and incarcerated students who are not English-proficient. The San Francisco school district hadn’t been reporting much about English-learning students in these juvenile justice facilities, so it’s been difficult to assess whether those students were getting the rehabilitative and academic help they’ve needed.

This consent decree is the first to make it explicitly clear that the school district has the same legal obligations to its court-remanded students that it does for traditional school students. The decree serves as a warning to districts across the nation that have juvenile-justice schools within their jurisdictions: Make sure you are identifying and monitoring students with language barriers, or you could be the next up for investigation.

The overall message sent by Lau is that it’s insane to think that children born outside of the United States can participate equally in the nation’s school system if they can’t understand teachers’ instructions and materials. If immigration trends hold steady, this notion will soon become impossible for city schools to ignore.

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