Are Federal Bilingual Rules A Foot in the Schoolhouse Door?

The Education Department says its proposed bilingual education rules merely carry out the civil rights law, but opponents call it federal intrusion into local education.

First it was race. Then sex and physical handicap. Now the civil rights enforcement issue is national origin: the federal government’s attempt to assure that children who don’t speak English get equal access to education.

That sounds fair enough. The United States is a melting pot, after all, and most Americans have their roots in a different language. Nobody disputes the provision of the 1964 Civil Rights Act that bans discrimination on the basis of national origin.

But the attempt by the new Education Department to write regulations requiring bilingual education for non-English-speaking students promises to unleash as much controversy and acrimony as all the other civil rights battles. Congress, in fact, has already ensured that the rules cannot be made final until Dec. 15 at the earliest.

The argument isn’t over the right of the children to learn. It isn’t even over the best way to teach them, although there are substantial disagreements on that score. The fight is about local control of education and the extent of federal authority to regulate what goes on in the classroom.

On Aug. 5, the Education Department proposed regulations to require schools to provide “bilingual” education to children with limited proficiency in English. These children would be taught English, but until they have mastered it, they would be taught other subjects — mathematics, social studies, science — in their native languages.

State and local officials and many education organizations complain that by dictating what goes on in the classroom, the proposed regulations violate the Constitution and the law setting up the Education Department.

But Hispanic, Asian-American and American Indian civil rights groups and other backers of the proposal say the department’s approach is the only way to assure these children equal educational opportunity.

“It doesn’t say education is a federal responsibility. Clearly, it is a state responsibility,” said Sharon P. Robinson, director of instruction and professional development for the National Education Association (NEA), one of the few education organizations supporting the rules. “But this is a civil rights issue, and that is a federal responsibility and there must be federal standards.”

In the case of regulations requiring equal access for the handicapped to public facilities, the major complaint of state and local governments has to do with cost. But on bilingual education, cost is less of an issue. Although state and local governments and school groups complain that no additional federal aid is contemplated to offset the cost of implementing the proposed rules, their reaction is muted, partly because most schools are already providing special instruction for their non-English-speaking students.

There are about 3.6 million schoolage children in the country who have difficulty understanding English. Some 73 per cent are Hispanic, but large numbers of students from Asian countries contribute to the total. The number of German, Italian, French and Russian speakers is considerable in some areas; Indian children are also involved.

Traditionally, it has been up to the immigrants to learn English any way they can, although programs have been available in some places since the 1800s. Since 1968, federal aid has helped states and localities provide special programs for limited-English students. But the program is quite small, now amounting to $167 million a year. Still, all but 8 states now have bilingual education programs and 19 states support these programs with $75 million of their own funds.

These programs did not all develop spontaneously. In 1974, the Supreme Court, ruling that students who speak little English do not have equal educational opportunity if they get only the same books and materials as English-speaking students, ordered the San Francisco school district to provide special help. Since then, the federal government has enforced this rule in almost 500 school districts.

Most of the resulting programs are bilingual, but some of them use “English as a second language,” which does not require teachers to speak the native tongue. Intensive English instruction, called “total immersion,” is also used in some places.

Most of the organizations that object to the proposed regulations actually favor the bilingual approach. They just don’t want the federal government telling them it’s the only method they may use.

“If the regulations are defeated and the states do nothing, it will be a very hollow victory,” said Anita Epstein, director of governmental affairs for the National Association of State Boards of Education. “We’ve got to get all the states to recognize they have to do something for these kids. But what they do has to be left up to the states and local districts, not the federal government.”


Proponents of the regulations argue that the Education Department is simply fulfilling its court-ordered responsibility to enforce the 1964 Civil Rights Act.

“It’s not even appropriate to classify these as bilingual regulations,” said Antonio J. Califa, deputy assistant Education secretary for the Office of Civil Rights and an author of the proposal. “A better description is equal educational opportunity regulations — equal access regs.”

The opposing state and local groups consider the proposed rules dangerously intrusive. They contend that the department is venturing into territory it has neither the constitutional nor the statutory authority to enter.

The regulations, they say, would prescribe a single method of instruction — the bilingual approach — in violation both of the 10th Amendment to the Constitution, which reserves powers to the states that aren’t specifically delegated to the federal government, and the Education Department’s legislative charter, which gives it no powers that its predecessor, the Health, Education and Welfare Department (HEW), did not have.

The nub of the argument is the interpretation of section 100.39(c)(1) of the proposed rules, which would require that instruction be “given in required subjects through both English and the primary language.”

Department officials contend this allows for a lot of local flexibility and point to another section that would permit the Education Department to waive this requirement for districts that have successful alternative methods. The proposal itself offers a disclaimer that the section does “not specify any particular pedagogical method, other than the use of both languages.”

But that is a pedagogical method, respond the opponents. Further, they complain, the school districts should not have to apply for a waiver to perform their constitutional right to fashion a curriculum.

Proponents of the regulations insist that if school districts are permitted to teach only in English, they will use that as an excuse to do nothing special for their limited-English students. They also believe the bilingual approach is the only effective one.

But opponents maintain that the requirement would set a dangerous precedent. “If we allow them to mandate a single method of teaching limited-English kids, why can’t they say, ‘Teach history this way,’ or, ‘Only teach the new math’?” Epstein asked. “Where would they stop?”

Because this fear of federal control is so widespread, the legislation setting up the new department carefully spelled out that it would have no greater educational authority than HEW, whose right to require bilingual education was never tested. Opponents of the regulations see the proposal as a violation of the department’s charter.

The desirability of bilingual education “is not the issue,” said Sen. William V. Roth Jr., R-Del., at a Sept. 10 meeting of the Senate Governmental Affairs Committee, which wrote the legislation establishing the department. “The issue is that the department, in direct violation, I believe, of our legislation, is becoming concerned or involved in local control of education.”

The committee has asked the Congressional Research Service to analyze departmental authority to issue the rules. “Any objective legal analysis would show that the department has zero authority to do what it has done,” said Gwendolyn H. Gregory, deputy counsel to the National School Boards Association.

“This is a very bad intergovernmental precedent for the first major effort by the Education Department,” said Ronald H. Field, education and labor director of the National Conference of State Legislatures. “It’s really getting off on the wrong foot.”

But supporters of the regulations scoff at these arguments and see the fuss over departmental authority as a diversionary tactic by departmental enemies.

“The Department of Education Act barely squeaked through Congress,” said Peter D. Roos of the Mexican American Legal Defense and Education Fund. “A lot of people were waiting in the wings, ready to jump all over the department. This is a product of that type of opposition.”

The fact that development of the regulations was under way long before the department was created might support that contention. As part of HEW, the Office of Civil Rights had been working on formal regulations since the 1974 Supreme Court decision in the San Francisco case, Lau v. Nichols, which held that the 1964 Civil Rights Act required special instruction for Chinese-American children who couldn’t speak English.

Opponents of the rules respond that they didn’t complain while HEW was preparing them because the department did not keep them informed about what it was doing.

Now that the regulations have been proposed, the opponents charge that the Supreme Court never specified bilingual education for San Francisco’s Chinese-American children. Instead, the Court left the approach up to the school district, suggesting several different methods and directing it to “apply its expertise to the problem and rectify the situation.”

But the proponents point out that the Supreme Court remanded the Lau case to a lower court, which accepted a consent decree in which the San Francisco school district agreed to establish a bilingual program for the affected Chinese students.

“Since then, many courts which have relied on Lau have required bilingual programs,” explained Stewart A. Baker, the Education Department’s deputy general counsel and an author of the rules. “I find that argument against the regulations unpersuasive.”

In addition to the handful of court cases since Lau, the Office of Civil Rights has used informal guidelines, called the “Lau remedies,” to enforce the Lau decision. Since it began applying the Lau remedies in 1975, it has negotiated nearly 500 local agreements based on those guidelines that, if anything, are more restrictive than the proposed rules.

“I don’t know why the opposition acts so surprised about these regulations,” said Tomas Saucedo of the National Council of LaRaza, a major Hispanic advocacy organization that was instrumental in setting up a Washington-based coalition promoting the proposal. “The Lau remedies have been around for five years. Five hundred plans are in effect. These are minimal regs and probably won’t make that much of a difference.”

So why didn’t the education groups fight the Lau remedies five years ago?

“We had nothing real to fight against before,” said Gregory. “It was a Catch-22. If we had made an attempt to fight the Lau remedies in court, then the Office of Civil Rights would have said they were not intended as a requirement, just an informal guideline. But the [HEW] regional offices treated them as a requirement when they charged the school districts with noncompliance.”

Gregory and other opponents of the proposed rules insist they are not fighting the department’s effort to enforce the Civil Rights Act. “We’re not opposed to the fact that the department proposed regs,” she said. “We commend them for finally getting to it. We’re opposed to bilingual as the only method.”

Instead of mandating a single approach, Gregory and the School Boards Association want the department to allow school districts to determine which students need special attention and then provide programs based on their needs. If the districts refuse, the department could force them to act.

“That’s the way any civil rights requirement is handled — race, sex discrimination,” said Gregory. “In this case, they skipped those first two stages. It would be like requiring every school district in the nation to have all schools racially balanced.”

The National Conference of State Legislatures would also like to see the Education Department take a different approach to enforcing the Civil Rights Act. It wants the department to require all states to submit plans for identifying and serving the children in need. The department would then measure the plans against the court requirements.

“That would put the burden on the states and school districts to prove they are serving those kids by whatever method they think meets their needs,” said Field.

But Robinson of the NEA retorted that federal enforcement officials would then have arbitrary power over the states and localities. The result, she said, could be more intrusive than the proposed regulations.

“How can they evaluate state plans without standards?” she asked. “I’d feel better if I knew that the standards by which programs were evaluated were equally applied to all states.”

The ethnic advocacy groups distrust state and local sincerity in fulfilling the requirements of the Civil Rights Act and see the need for strong federal rules to force compliance. Little bilingual education existed before they went to court, the groups say, and even now there is considerable resistance.

Texas, for example, has a comprehensive bilingual program with substantial federal aid. “But in Corpus Christi, they’re not about to give an inch to educate a Mexican,” said Saucedo. “Some people need a stick, and that stick is a federal mandate.”

San Antonio’s poor, predominantly Mexican-American Edgewood district provides bilingual education, “but we don’t have a school board requirement to teach bilingual,” said Edgewood superintendent James R. Vasquez. “I was at a meeting recently where another superintendent said his district didn’t need a bilingual program because the Mexicans didn’t want it. No Mexican-American was on his school board, so how could they have influence? These regulations at least will be a workable minimum.”


While considerable opposition to the proposed regulations has centered on the issue of federal authority, the cost of compliance has been relatively non-controversial.

One reason is that the states and school districts don’t know what the rules would cost.The Education Department estimated a wide range of price tags, depending on how many students are covered. Under the broader alternative, states and localities might have to spend as much as $590 million more than they do now. Under the narrower choice, their costs could increase by as little as $180 million a year over the first five years.

“But that would ignore the fact that it isn’t the regs versus nothing,” said Califa. “We have the Lau remedies now.”

Because the proposed regulations would substitute for the Lau remedies, the cost of implementing the rules would be substantially reduced, the department estimates.

But state and local governments don’t trust these estimates because of the wide variety of local conditions and existing programs. The Edgewood district’s current program doesn’t cost any more than a monolingual program, according to Vasquez, but that’s only because of special circumstances.

“It’s very different here than in other districts,” he said. “Ninety-four per cent of our population is Mexican-American, so bilingual is part of the central core of our curriculum. It’s not an ancillary program.”

On the other hand, Seattle estimates that it spends $1,255 more per year for each student in its bilingual program than in its regular curriculum. That’s partly because the limited-English students speak more than 40 languages.The cost implications of the proposed regulations have yet to be determined, but Mayor Charles Royer believes they probably would cost the city still more money.

The District of Columbia spends about $500,000 a year for its 10-year-old bilingual program that serves about 1,000 limited-English students, “I suspect [the proposed regulations] won’t have much of an effect,” said Marcelo R. Fernandez, bilingual director for D.C. schools, “because the program here has been in operation for so many years.”

The relatively calm reaction to the potential cost of the bilingual regulations contrasts with the storm surrounding another civil rights regulatory issue, the requirement to provide for the handicapped. (See NJ, 10/21/78, p. 1672. ) That’s particularly surprising because the federal government pays part of the bill for the controversial 1975 Education for All Handicapped Children Act while it proposes no additional financing to pay for the increased cost of implementing the bilingual rules.

That is not to say that the states would not welcome some federal money for bilingual programs. “The states are a little fed up with mandates from the federal government without a penny to support them,” said Epstein.

In fact, the need for help to pay for implementation is one of the points on which the opposing organizations and the NEA, which supports the proposal, agree.

“They’re not proposing to finance this adequately,” said the NEA’s Robinson. “A teacher cannot be held accountable if the resources aren’t provided. It’s just not going to work.”

“If the federal government paid for the expense, we might look a little differently at the proposals,” said Royer. “It’s unfair to the cities to ask them to carry this additional burden,” he said. “It’s just too much for the city to carry.”


Inadequate resources are only one of the potential problems presented by the proposed regulations. The wide divergence of circumstances to be covered by the rules makes the attempt to prescribe a single approach particularly unpopular in some quarters.

The largest group of children to be covered are Hispanic. But their needs are different from those of Chinese-American students or Indochinese refugee children.

“The research is drawn from the Hispanic community and is not necessarily applicable to Asian-Americans,” said Linda C. Wing, president of the National Association for Asian-American and Pacific Education, a vocal advocate of the proposed regulations but with reservations about some of the details.

The bilingual approach mandated in the rules may make sense for large concentrations of poor Hispanic children in inner cities and southwestern towns. Teaching materials and potential bilingual teachers are plentiful. It’s a very different story in many of the big cities experiencing large influxes of Asian refugees. Seattle is one example. In Chicago, the 90,000 pupils from non-English backgrounds speak 139 languages.

Where is a city supposed to find the teachers and materials for geography classes in Vietnamese and math in Ilokano (a language of the Philippines)? And what kind of materials could be used for teaching Laotian refugees who speak Hmong, an unwritten language that has no alphabet?

In some communities, parents don’t want their children in bilingual programs.

“The key is the community viewpoint, aspirations and wishes,” said G. Richard Tucker, director of the Center for Applied Linguistics, who favors the bilingual approach but opposes the regulations as too restrictive. “And even where bilingual may be the first choice, it may not be possible to provide a bilingual program.”

Even the experts disagree on the best way to identify the students who need special help, assess the dimensions of their needs and determine when they no longer require assistance. But the proposed regulations attempt to set out these steps in considerable detail, although department officials concede privately that modifications are likely before the rules are made final.

The teacher organizations on both sides of the issue contend that it’s more important that bilingual instructors be trained teachers than fluent speakers of the students’ native languages.

“The important thing is knowing how to teach,” said Robinson. “In a multilingual situation, a bilingual person would be just as incompetent as a monolingual person anyway.”

The advocacy groups, on the other hand, regard knowledge of the native language as paramount. They say that teachers argue otherwise merely because they are worried about losing their jobs. Teachers respond that the advocacy groups are trying to create a jobs program for Spanish-speaking people. Some of the proponents of the regulations see this argument as “an attempt to drive an artifical wedge between us,” as Saucedo put it.

The supporters have other problems with the Education Department proposal. The regulations would probably cover fewer students than the Lau remedies, which require school districts to set up programs if at least 20 limited-English children in the district speak the same language. The proposed rules would raise that floor to 25 children in two consecutive grades in the same school.

“The net impact of these regulations on Chicago’s bilingual programs is likely to result in diminished services for fewer students,” wrote Angeline P. Caruso, interim superintendent of Chicago’s public schools. She expressed the fear that the Illinois General Assembly — upon which Chicago relies for the bulk of its bilingual program money — might reduce state aid for bilingual education if the final regulations are looser than the Lau remedies.

Another provision of the proposed rules allows parents to remove their children from a bilingual program. Some advocates fear that school officials might use this provision to lower the number of children in bilingual classes below the minimum of 25.

“I know principals who would have no trepidation convincing parents that their children would be better off not in the program,” said Roos.”And if enough parents opt out, a school won’t have to have a program.”

Perhaps the most subtle problem of all is the threat that a bilingual program would be used to segregate a school system. Although the proposed regulations require school districts to show they are “using the least segregative method of meeting the requirements,” many of the advocates fear that some school officials would find a way around this.

“Without some sort of additional protections, that can happen,” said Roos. “It’s very likely in Texas, where they have used language to segregate kids in the past — and then didn’t do anything special for those segregated.”

“Folks can always find a reason for not doing what they don’t want to do,” added Robinson.


Congress has found a way to delay — if not stop altogether — issuance of the final regulations, which had been planned for before the end of the year. Before it recessed for the campaign, Congress amended the resolution providing stopgap spending authority for most federal agencies to prevent the use of Education Department funds for the adoption or enforcement of the proposals before next June 1.

Supporters of the amendment, proposed by Sen. Lawton Chiles, D-Fla., said they didn’t want the department to take any precipitate action while Congress was away. The spending resolution runs out on Dec. 15, and, technically, that provision will expire with it. But there’s a lot of hostility to the regulations in Congress, and both opponents and advocates expect some kind of permanent congressional action.

In fact, the Chiles amendment was a considerable weakening of a proposal by Sen. James A. McClure, R-Idaho, that would have not only prohibited issuance of the regulations but would probably have denied the use of federal funds for bilingual education.

The House has already adopted a longer-term injunction against the regulations — an amendment to the fiscal 1981 Education Department appropriation, proposed by John M. Ashbrook, R-Ill., that would forbid the department from issuing regulations that require the use of any teaching method “other than one of intensive instruction in English.” The bill awaits Senate action.

Off Capitol Hill, a lot of people are unhappy with all these actions. At the Education Department, Baker was particularly critical of McClure’s amendment, arguing that “an appropriations act or continuing resolution is an inappropriate vehicle for what amounts to an amendment of Title VI” of the 1964 Civil Rights Act.

Gregory, who opposes the rules, still considers the Senate action “a very unfortunate way of doing it.” She particularly opposes the Ashbrook amendment, which, she said, “basically does the same thing the department does — it mandates a single method of instruction.”

In the meantime, the Senate Governmental Affairs Committee is awaiting the Congressional Research Service analysis of departmental authority. It plans hearings on the issue.

Both sides of the question fear that a lot of congressional publicity could blow the controversy out of proportion.

“They could really open up a can of worms,” said Gregory. “It’s already such an emotional issue.”

“We’re a bit naive,” said Saucedo. “We’ve been trying to confront people with facts and all they want to argue about is states’ rights.”

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