Alternative Methods of Segregation: Bilingual and Special Education
It is beyond the scope of this book to review all the law relating to public education, although there are a number of texts that do so. 1 Instead, this chapter considers the important landmark decisions of the American judicial system and evaluates the effects of those decisions on public education in the area of bilingual and, special education. Although these areas have been briefly mentioned in earlier chapters discussing the reform of public education, they are considered here in the legal context of judicial application of the due process and equal protection clauses of the Fourteenth Amendment. More specifically, this chapter considers the effects of such judicial intervention on the quality of public education.
One legal scholar has observed the surprising frequency with which "the Constitution has provided the law that directly controls an educational issue. Moreover, it always provides the fundamental legal framework within which every educational issue must be resolved." 2 In the early case of Marbury v. Madison, 3 it was determined that the Constitution gives to the Supreme Court the power to determine whether laws or government policies are constitutional.
In the previous chapter, the role of racial discrimination in the segregation of the public schools was discussed. However, racial considerations are but one of the factors used by schools to segregate students. It will be recalled that segregation by age was the basis for the Prussianization of the American schools during the period following the Civil War. 4 Theories of male superiority and domination resulted in the segregation of sexes in the educational establishment, with females predominating as teachers, and males predominating under the Prussian "male leadership principle as supervisors and administrators. 5
Other methods of segregating students according to perceived differences in characteristics persist today in the public schools. Special education and programs of bilingual education continue to segregate students according to primary language, national origin, and socioeconomic status. It is to the Supreme Court's intervention in these areas that we now turn.