The struggle for equality and nondiscrimination in education at all levels has a long history in the United States. Following Brown v. Board of Education (1954) and the ensuing civil rights struggles of the 1950s and 1960s, Congress passed Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, age, creed, or national origin in any federally funded activity or program. In addition, the Fourteenth Amendment to the U.S. Constitution, adopted in 1868, declares that no state may deny any person the equal protection of the laws. This amendment protects the privileges of all citizens, provides equal protection under the law, and gives Congress the power to enforce this amendment through legislation.
In 1974, Congress enacted the Equal Educational Opportunities Act (EEOA) to champion the rights of all children to have equal educational opportunities. Insofar as the EEOA addresses the rights of students who may hope to continue their studies in colleges and universities, this entry reviews the act’s background and impact in K–12 settings. While focusing largely on K–12 issues, this entry is designed to provide educators and others who are interested in higher education with the ability to understand how the EEOA might impact the rights of the students with whom they interact on their campuses.
In 1968, the Department of Health, Education and Welfare (HEW), now the U.S. Department of Education, which has authority to disseminate regulations prohibiting discrimination in federally assisted school systems, issued a guideline clarifying that school officials are responsible for ensuring that students are not denied educational opportunities that are equal to those of their peers due to their race, color, or national origin. Later, HEW issued a memorandum on May 25, 1970, in an attempt to clarify the responsibilities of school board officials to provide equal educational opportunities to English language learners under Title VI. According to the memorandum, programs for students whose English is less than proficient should be designed to teach them English as soon as possible. The memorandum added that this approach should be carried out in a meaningful way that affords students who are non-English speakers the academic and social language skills that they need to succeed in school and life. The memorandum further stipulated that school boards have the duty to communicate with parents regarding their children’s education in a language the parents can understand. The memorandum also explained that students could not be placed in special education programs based solely on their inability to speak English.
In March 1972, President Nixon addressed the nation on two companion proposals. The proposals were aimed at providing the judiciary with a new and broader base on which to review future cases relating to equal educational opportunities, to place the emphasis on providing better education for all children, and to set forth alternatives to busing. The president’s definition of equal educational opportunity set the stage for what in 1974 would become the EEOA. The alternatives to busing were intended to preserve “neighborhood” schools.
In its landmark decision on the rights of language minorities, the Supreme Court in Lau v. Nichols (1974) held that students with limited English proficiency (LEP) who were not provided with special programs to help them learn English were being denied their rights under Title VI of the Civil Rights Act of 1964. In Lau, the Court held that the San Francisco Unified School District should have provided instruction in English to non- English-speaking Chinese students or provided them with instruction in their native language. The Court also pointed out that merely providing students with the same facilities, textbooks, teachers, and curriculum does not constitute equal treatment. In other words, the Court reasoned that students who do not understand English are effectively foreclosed from any meaningful education. At the same time, the Court upheld HEW’s 1970 memorandum as a valid interpretation of the requirements of Title VI. Lau v. Nichols was also important because it renewed interest in Nixon’s proposal to focus on equal educational opportunity for all students.
Provisions of the Equal Educational Opportunities Act
Shortly after Lau, Congress passed the EEOA. This act, along with the Bilingual Education Act, was part of the 1974 amendments to the Elementary and Secondary Education Act. The EEOA affirms that no state shall deny educational opportunity based on race, color, sex, or national origin by engaging in deliberate segregation by an educational agency; failing to remedy deliberate segregation; assigning a student, other than to a school closest to his or her residence, that results in a greater degree of segregation of students on the basis of race, color, sex, or national origin; discriminating by an educational agency on the basis of race, color, or national origin in the employment of faculty or staff; transferring students from one school to another, voluntarily or otherwise, if the purpose and effect of doing so would have increased segregation on the basis of race, color, or national origin; or failing to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.
The EEOA allows individuals who have been denied equal educational opportunities to file civil suits in appropriate federal trial courts against such parties as may be appropriate. In addition, the attorney general of the United States may institute civil actions on behalf of individuals. However, this power is rarely implemented, because most challenges emanate from parents and advocacy organizations. Despite the intent of the law, the vague language of the EEOA has left it to the courts to decide and shape the concept of equality in education for LEP students. The constitutional issue is the right of national origin minorities to have equal educational opportunities, a question that is making its presence felt in many institutions of higher education, because a significant number of enrolling students are lacking in basic skills.
In 1981, in Castañeda v. Pickard the Fifth Circuit established a three-prong test to evaluate whether educational officials have violated the rights of students who were LEP. The first prong inquires whether officials are pursuing a program informed by educational theory that is recognized by experts as sound. The second examines the steps that officials are taking to implement the approach, including whether they are providing the resources necessary to implement it effectively. The third question concerns whether, after a “legitimate trial” period, officials have examined the results of the program for results and modified it if results were not forthcoming. Furthermore, the court determined that students who are LEP should have not only the opportunity to learn English but also full access to the school system’s educational program.
When evaluating programs for students who are LEP, the courts require educators to meet all three of Castaneda’s prongs for both the teaching of English and the teaching of the entire curriculum. Although most courts relied on the Castañeda standard, the three-prong test is not without its judicial critics, as illustrated in Teresa P. v. Berkeley Unified School District (1989). This case also raised the issue of discrimination against Mexican Americans in the hiring and promotion of teachers and administrators.
Using the Castañeda standard in Keyes v. School District Number 1 (1983), the federal trial court in Colorado was of the opinion that traditional bilingual educational programs that taught English and provided understandable instruction in content areas was a sound educational theory. Nevertheless, the court remarked that the implementation system was inadequate due to a lack of emphasis on reading and writing, an apparent lack of regard for the curriculum needs of students who are LEP, and a lack of testing. Because school board officials had not provided the mandated program, the court did not address the third prong, holding that evaluating results at that point would be premature. The Keyes court decided that although the facts of the case did not require bilingual education as an exclusive means of access to students who were LEP, it might be required in specified circumstances. The court concluded that the issue was not whether bilingual programs were the least reparative manner for providing language instruction but whether the degree of separation is necessary to achieve the educational goal of the program in light of the fact that the students spoke Spanish.
State education agencies have been included in the enforcement of the EEOA. In 1982, in United States v. State of Texas, the Fifth Circuit required state education agencies to adopt guidelines regarding services provided to students who were LEP and to ensure that these guidelines were monitored and enforced. Previously the Ninth Circuit had posited, in Idaho Migrant Council v. Board of Education (1981), that state educational agencies have a duty to supervise local school boards to ensure compliance with federal mandates ensuring that the needs of students who are LEP are being met.
A current long-running case, Flores v. Arizona, was filed in the federal trial court in 1992 as parents and others alleged that state officials failed to provide students who were LEP with instruction making them proficient in English and enabling them to master the standard academic curriculum. In 2000, the court ruled that officials neither adequately funded the program nor provided enough teachers, paraprofessionals, classrooms, resources, or tutors for students who were LEP. The court thus ordered state officials to complete a cost study to establish the needed funding to implement programs for students who were LEP. As a result, the parties entered into a consent decree on nonmonetary issues, including a requirement that the state board and the department of education adopt rules and regulations for English language instruction, compensatory instruction, and monitoring by the department to ensure that students who were LEP had equal educational opportunities.
During the next phase of the litigation, in 2001, the cost study was released. However, because the study was of limited usefulness, the court ordered the state to provide adequate resources to educate students who were LEP by January 31, 2002, or by the end of any special session, whichever came first. After the legislature failed to appropriate sufficient funds, additional litigation ensued, culminating in the Ninth Circuit’s ultimately affirming that the state of Arizona was required to fund programs for English language learners fully in order to comply with the EEOA (EEOA). On further review in Flores v. Arizona (2009), the Supreme Court reversed and remanded the dispute for further consideration. In other words, the Court ruled that in light of legal and factual changes, such as Arizona’s shift away from bilingual education to structured immersion for ELL students and changes mandated by the No Child Left Behind Act with regard to the finding and programs for these children that took place since the lower courts agreed that state officials violated the EEOA, the state was entitled to present its position that it was entitled to relief from those earlier judgments.
Since the enactment of the EEOA, litigation has addressed issues of proper identification of LEP students for services, oversight and monitoring of programs, teacher quality and training, and funding. As more litigation ensues, it appears that because local and state educational agencies have continued to fall short of providing adequate services to LEP students, the responsibility of better educating these students will be felt when they enter institutions of higher learning, from community colleges through research universities, because these students are very likely to need remedial instruction in order to ensure their access to equal educational opportunities.
Darlene Y. Bruner
- Berenyi, J. R. (2008). “Appropriate action” inappropriately defined: Amending the Equal Educational Opportunities Act of 1974. Washington and Lee Law Review, 65, 639–674.
- Nixon, R. (1972, March 16). Address to the nation on equal educational opportunities and school busing. Public Papers, 90, 425, 426.
- Sorensen, G. P. (1998). Selected chronology of U.S. legislative and judicial documents enhancing equal educational opportunity for at-risk diverse learners in the last half-century. Education Law Reporter, 124, 17–19.
- Brown v. Board of Education, Topeka, 347 U.S. 483 (1954).
- Castañeda v. Pickard, 648 F.2d 989 (5th Cir. 1981).
- Equal Educational Opportunities Act, 20 U.S.C. § 1701 et seq.
- Flores v. Arizona, 516 F.3d 1140 (9th Cir. 2008), cert. granted, 129 S. Ct. 893 (2009).
- Idaho Migrant Council v. Board of Education, 647 F.2d 60 (9th Cir. 1981).
- Keyes v. School District Number 1, 576 F. Supp. 1503 (D. Colo. 1983).
- Lau v. Nichols, 414 U.S. 563 (1974).
- Teresa P. v. Berkeley Unified School District, 724 F. Supp. 698, 713 (N.D. Cal. 1989)
- Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000 et seq.
- United States v. State of Texas, 680 F.2d 356 (5th Cir. 1982).