Kelly Fogle
EDPS 685
 2013 

Included with Brown v. Board of Education as one of the
cases with the greatest impact on the field of education in
the past 60 years
(Zirkel, 2001)

Expanded on Brown v. Board of Education by seeking a
ruling on exclusionary practices – intentional or not
(Moran, 2005)

San Francisco Unified School District was integrated in
1971

2,856 non-English speaking Chinese students in the school
system
o 1,800 did not receive any supplemental English instruction and
were immersed in the regular curriculum full-time

Non-English speaking students felt they were denied a
meaningful public education
(Sugarman & Widess, 1974)
 1,800
Chinese-American students
o Kam Wai Lau, mother of one of the students (Kinney
Kinmon Lau)
 Education
is not ‘meaningful’ if students are taught
in a language they are not able to understand
(Sugarman & Widess, 1974)
Photo credit: Historical photo collection of San
Francisco Public Library’s San Francisco
History Center

Alan H. Nichols
o President of the Board of Education of the San Francisco Unified
School District

Did not have resources to provide bilingual education
o Lack of budget and teachers

“English-only” policy denies non-English speaking students equal
protection of the laws
o Education is not ‘meaningful’ if students are taught in a language they
are not able to understand

Consequences of a “sink or swim?” approach:
o Slower-paced learning
o Grade retention
o Placement in special education classes

Lau and colleagues’ suggestions
(Crawford, 1996; Sugarman & Widess, 1974)

Case was first heard by the District Court for the Northern District
of California
o RULING: School district offered “the same education” to the plaintiffs
as it did to other students in the district
• Plaintiffs denied relief

Decision appealed to the Court of Appeals for the Ninth Circuit
o Plaintiffs denied relief
• Reasoning: “every student brings to the starting line of his educational
career, different advantages and disadvantages” which may impact his
education “apart from any contribution by the school system”

 U.S. Supreme Court
(Moran, 2005; Sugarman & Widess, 1974)

Consequences of a decision in favor of the plaintiffs:
o Substantial positive changes in the education of non-English-
speaking children
o Could be viewed as judicial intrusion into local education policies

Consequences of a decision in favor of the defendants:
o Could be viewed as a lack of commitment to equal educational
opportunity for minority children
• Consider time period – integration of San Francisco schools was
relatively recent
(Sugarman & Widess, 1974)

January 21, 1974 --- Decision was unanimously reversed

San Francisco school system denied students a meaningful
opportunity to participate in the public educational program
o Violation of the Civil Rights Act of 1964
o Students have the right to a meaningful education under the school’s
program
• Calls for more than just English language development classes
o Left remedy for the problem up
to local governments
• ESL classes + access to
general curriculum
(Lucas & Katz, 1994; Moran, 2005;
Sugarman & Widess, 1974)
Warren Burger Supreme Court

California
o Bilingual education plan
(Crawford, 1996)

The “Lau Remedies”
o Identify student’s primary/home language
o Diagnostic/prescriptive approach
o Educational program selection
o Required and elective courses
o Instructional personnel requirements
o Evaluation
(Baker & deKanter, 1983; Southwest Educational Development Laboratory, 1976)

Lau Remedies were not formalized (Reagan administration)
o Office of Civil Rights cut back enforcement
o Funding cuts for ELL programs
• LEP population increased by 40%, funding decreased by 40%
• “Additive bilingualism” – L2 development does not need to be at the expense of L1
(Crawford, 1996)

Lau decision being “undone” by law:
o Guardians Association v. Civil Service Commission
• “Title VI authorizes compensatory relief only for purposeful wrongs, not actions with
adverse effects.”
o Alexander v. Sandoval
• Private plaintiffs can only file lawsuits for intentional discrimination
• 14th Amendment
o Equal Educational Opportunities Act (EEOA)
• Only applies to instruction, not high stakes testing
(Moran, 2005)

Insufficient resources and staff for ELL programs
o Lack of evidence-based materials, assessments, etc.

Politics
o Inconsistent support for programs based on voter attitudes
• Anti-immigrant bias
(Crawford, 1996)

Office of English Learning and Migrant Education
o Title III of NCLB
• Seeks to help Limited English Proficient (LEP) students become proficient in
English and meet the same academic standards as their peers
o Procedures:
•
•
•
•
•
Home Language Survey
LAS Links Placement test
Identification as LEP
Annual Parent Notification
Individual Learning Plan
• Annual LAS Links assessment
•
English development services until student receives two Level 5 scores
• Non-English Speaking Program (NESP)
• State funded for eligible school corporations
(Indiana Department of Education, 2011)

Learning another language takes time
(Collier, 1989)

Programs for LEP students
o Bilingual Education
o Special Alternative Instructional Programs (SAIPs)
• generally English-only instruction
• Partial bilingual programs
• E.g., Group work in native language
(Baker & deKanter, 1983; Lucas & Katz, 1994)

Challenges for School Psychologists?
o RTI
o Comprehensive assessment
• Tests with high language and cultural loadings
(Lopez et al., 1996; Orosco & Klingner, 2010).
Baker, K.A. & de Kanter, A.A. (1983). Bilingual Education: A Reappraisal of Federal Policy. Lexington, MA: D.C. Heath.
Collier, V. P. (1989). How long? A synthesis of research on academic achievement in a second language. TESOL Quarterly, 23,
509-531.
Commission on Civil Rights (1997). Equal educational opportunity and nondiscrimination for students with limited English
proficiency: Federal enforcement of Title VI and “Lau v. Nichols”. Equal Educational Opportunity Project Series, 3, 1-248.
Crawford, J. (1996). Summing up the Lau decision: Justice is never simple. Revisiting the Lau Decision – 20 Years After:
Proceedings of a National Commemorative Symposium. San Francisco, CA: ARC Associates.
Indiana Department of Education (2011). English learning and migrant education. Retrieved from http://www.doe.in.gov/elme
Lopez, E. C., Lamar, D., & Scully-Demartini, D. (1997). The cognitive assessment of limited-English-proficient children: Current
problems and practical recommendations. Cultural Diversity and Mental Health, 3, 117-130.
Lucas, T. & Katz, A. (1994). Reframing the debate: The roles of native languages in English-only programs for language minority
students. TESOL Quarterly, 28, 537-561.
Moran, R. F. (2005). Undone by law: The uncertain legacy of Lau v. Nichols. Berkeley La Raza Law Journal, 16, 1-10.
Orosco, M. J. & Klingner, J. (2010). One school’s implementation of RTI with English language learners: “Referring into RTI”.
Journal of Learning Disabilities, 43, 269-288.
Southwest Educational Development Laboratory (1976). Findings specifying remedies for eliminating past educational practices
ruled unlawful under LAU v. Nichols. Proceedings of National Conferences on Research & Policy Implications: Lau Task
Force Report. 1-315.
Sugarman, S. D. & Widess, E. G. (1974). Equal protection for non-English-speaking school children: Lau v. Nichols. California Law
Review,62: 157-182.
Watson, T. S. (2004). Lau v. Nichols. In T. S. Watson & C. H. Skinner (Eds.), Encyclopedia of School Psychology, (pp. 174-176).
New York, NY: Kluwer Academic/Plenum Publishers.
Zirkel, P. A. (2001). Decisions that have shaped U.S. education. Educational Leadership, 6-12.