Academic journal article Journal of Law and Education

The Equal Educational Opportunity Act 30 Years Later: Time to Revisit "Appropriate Action" for Assisting English Language Learners

Academic journal article Journal of Law and Education

The Equal Educational Opportunity Act 30 Years Later: Time to Revisit "Appropriate Action" for Assisting English Language Learners

Article excerpt

I. INTRODUCTION

When Congress passed the Equal Educational Opportunity Act of 1974 (EEOA), §1703(f) required that states take "appropriate action to overcome language barriers that impede equal participation by its students." Testimony in the legislative history showed that the EEOA was likely intended to create "a right to receive bilingual education"1 or at least intended as a codification of the legal rights afforded English language learners (hereinafter ELLs) under Lau v. Nichols.2 In interpreting "appropriate action," the Fifth Circuit in Castenada v. Pickard3 created a science-based test that required English language assistance programs for ELLs to be based on a sound educational theory supported by some qualified experts. In subsequent modifications of the practical application of the Castenada test, courts placed a burden upon plaintiff ELLs to show that an English language assistance program was "inappropriate" by demonstrating that a school district's language program was completely unsupportable under all circumstances.4 Using the Castenada test, the courts in Teresa P. v. Berkeley Unified School District5 and, most recently, in Valeria G. v. Wilson6 held that one-year, English immersion programs complied with §1703(f) though the educational theory upon which they are based was similar to that rejected by the Court in Lau and which has been routinely criticized as unsound.7 Further, the experts who support them are deemed to be a fringe minority by leading experts in second language acquisition, and out of step with the current, majority knowledge of the scientific community.8

This paper argues that recent interpretations of the Castenada test for determining "appropriate action" have gutted the requirements of §1703(f) because they misunderstand the fundamental processes through which scientific knowledge is acquired and legitimized; specifically, that scientific knowledge is a communal undertaking founded on critique and shifting levels of consensus in which there nearly always exists minority support for any theory. Further, this paper argues that the first part of the Castenada test misinterprets the role of federal judges in assessing the soundness of a scientific theory and the qualifications of an expert by deferring too readily to the scientific justifications put forth by school district officials and proposition supporters. As a result, courts have consistently upheld language support programs as "appropriate action" that likely are ineffective, and possibly harmful, to the English language development of English language learners.

To remedy this misinterpretation, this paper contends that the courts should not defer to school officials and proffered education experts in areas of scientific soundness and expertise until they have subjected the officials and experts as well as their testimony to a standard similar to the standard of admissibility set forth in Daubert v. Merrell Dow Pharmaceutical.9 By doing otherwise, the Courts have created a legal test without substance that permits education policy to adhere to disfavored, extreme views of scientific understandings in forming their policies and programs for English language support in schools which violates the plain language of §1703(f) of the EEOA and Congress' intent in enacting it.

II. CASTENDADA AND ITS PROGENY: SUFFICIENT THEORY FOR APPROPRIATE ACTION

Soon after its passage, ELLs began to utilize the EEOA to force school districts to change their second language programs, often asking that courts require school districts to increase their use of bilingual and firstlanguage instruction. In 1981, the Fifth Circuit in Castenada v. Pickardw established a three-part test for determining whether a school district's language plan was "appropriate action" as required by §1703(f). The test required that a school district's language plan:

(1) must be based on (a) a sound educational theory that is (b) supported by some qualified experts;

(2) must be provided with sufficient resources and personnel to be implemented effectively; and

(3) after a trial period, students must actually be learning English and, to some extent, subject matter content. …

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