By Bailey Kennedy, J.D.
Longstanding obligations meet new challenges
In 1974, the Supreme Court held in Lau v. Nichols that the San Francisco school district had failed to provide Chinese-speaking students in the district with “a meaningful opportunity to participate in the educational program.” This case still remains a touchstone in the body of law requiring English language instruction in federally-funded schools to children whose first language is not English. However, the coronavirus crisis and the ensuing move to online education by many school districts across the country has made it more difficult for states to fulfill their obligations to this vulnerable population of students.
Around 10% of American elementary and secondary school students are English language learners (ELLs). The number varies widely by state, from a low of 0.8% of West Virginian students to a high of 19.2% of Californian students. Teachers can take different approaches in reaching these students, including intensive English instruction, bilingual education, and dual-language immersion. Regardless of the method of instruction chosen by school districts and individual teachers, federal law requires states to take steps to make sure that students who speak other languages are still able to access education.
The coronavirus has presented educators with new obstacles in fulfilling their legal obligations to this population of students. While the Department of Education has issued some guidance on how schools are permitted to deviate from normal requirements during the COVID-19 era, there remains some ambiguity in how schools can best fulfill their obligations and serve their student population. With no real end in sight to the nationwide distance learning experiment, it’s worth examining how states have responded to the challenges of educating English language learners during a global pandemic.
Department of Education Guidelines for ELL During COVID
In May 2020, the Department of Education released a fact sheet outlining states’ ongoing responsibilities to their English language learners. The fact sheet suggests that the coronavirus has abrogated the state responsibility to conduct English language proficiency exams. While states are still required to provide language instruction to English language learners, the fact sheet also notes that “during this national emergency, schools may not be able to provide all services in the same manner they are typically provided.”
While it may be understandable that standards have been altered in the face of an unexpected and world-altering pandemic, the lack of proficiency testing may have serious ramifications for affected students. The proficiency tests are used both to identify those who qualify for English language learning services and to hold states accountable for helping their students reach proficiency. Without proficiency tests, students whose language needs aren’t being met may slip beneath the radar of even the most careful ELL teachers.
In addition to regression in language skills, ELL students also face the same educational “slide” that native English speakers have faced in a remote learning environment. However, without a requirement for content testing in their native languages, educators might face challenges in assessing the content learning loss of English language learners. These emergency measures seem to contradict what is normally required for the education of ELLs under Title VI.
In general, the guidelines outlined in the Department of Education fact sheet focus on maximizing the amount of flexibility available to local educational agencies (LEAs). The guidelines note that where technology poses a barrier to education, teachers may deliver education in a different mode than they are otherwise using. But in some cases, it’s appeared that English instruction hasn’t been delivered in a different modality and instead has simply disappeared or been minimized in weekly schedules.
Special Challenges Faced by English Language Learners
Educators and school districts have a legal obligation to ensure that English language learners are able to access the same opportunities that the student body at large receives, but ELLs face obstacles well beyond the ones that come directly from the language barrier. The Hispanic population, which makes up a high percentage of English learners, has borne a disproportionate burden of illness as the coronavirus crisis has worn on. Moreover, ELL students might not come from a family that is able to support their learning from home, or even have access to the technology required to make the best use of online resources. Finally, by removing students from classrooms and schools where they are surrounded by English, distance learning erases opportunities for immersion in language environments that are conducive to fluency.
Desperate times, desperate measures?
In pre-coronavirus times, schools that failed to provide adequate English language instruction to their students faced lawsuits. If districts are unable to provide adequate instruction in the COVID-19 era, they might face similar challenges. Already, parents of students with learning disabilities have brought suit claiming that online learning is insufficient to meet student needs. Families in California have also brought suit against the state for its failure to adequately educate low-income students of color. Los Angeles United School District has also been sued by a group of parents, including the parents of English learners, for inadequate online education. It’s possible that these suits could be followed by more suits to specifically redress the harms done to the education of English language learners, which are distinct from the harms suffered by the student population at large.
Some schools tried to preempt suits like the ones noted above by providing opportunities for ELL students to learn in-person even when the majority of students were kept learning from home. However, this has left these schools vulnerable to criticism (including by the federal government under the Trump administration) that they have unfairly favored certain groups of students rather than others.
While the Department of Education under the Trump administration was, as illustrated above, generally lenient with school districts struggling to adapt to the new learning environment presented by COVID-19, it remains to be seen whether new President Joe Biden’s Department of Education will feel similarly about allowing flexibility.
Moreover, while it probably made sense to give school districts a maximum level of flexibility when the coronavirus was new and distance learning was an experiment, it’s unclear that this leniency is still the best possibility as the country moves towards a full year of online academics. Some ELL students have not seen the inside of a classroom since March 2020: if, in that time, schools have failed to adapt in a way that allows ELL students to benefit from the full flight of opportunities that are available to the broader population, it’s unclear that the public interest is served by allowing these schools to continue to claim the pandemic as the cause of a failure to properly educate students.
A year with no winners
Schools are in a bind when it comes to properly educating their ELL students. The Trump administration understandably was hesitant early in the pandemic to take action against schools that found themselves unable to meet traditional requirements for educating these students while caught in an emergency situation. A year later, it’s hard to argue that the prolonged crisis is truly an emergency. But while the obligation to provide an adequate education to ELL students is real, it’s much easier said than done. Online learning has improved in the last year, and should continue to improve over the next few months — but, at this point, it’s pretty clear that the best option for these students, as for most students, is to get back in the classroom.
This article was originally published on the COVID-19 and the Law blog.
Bailey Kennedy graduated from Harvard Law School in May 2022.
