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Chapter 5: The Evolution of Federal Policy
By James Crawford

When Proposition 227 took effect in 1998, dismantling most of California’s bilingual education programs, two school districts were not directly affected. San Francisco and San Jose remained under court orders dating from 1974 and 1985, respectively, that required them to provide native-language instruction to English learners. Years earlier, parents had sued the districts, alleging that they were violating civil-rights law by neglecting the needs of these students. Federal courts agreed. To remedy the problem, judges in both cases mandated bilingual education as a way to open up the curriculum to children who had been effectively excluded. Under the U.S. Constitution, federal authority generally takes precedence over state and local authority where national concerns such as civil rights are at stake. Therefore, these court decisions “trumped” Proposition 227 in San Francisco and San Jose. The two districts were obligated to continue providing bilingual programs for LEP students, just as they had done before passage of the ballot initiative, while other districts in the state were being forced to eliminate bilingual programs.

As applied in this situation, the legal logic is clear enough. Considered more broadly, however, it raises a number of questions. One might reasonably ask, for example, why LEP students in the rest of California should be treated any differently from those in San Francisco and San Jose. If bilingual education is required to safeguard the civil rights of English learners in those districts, why not in all? For that matter, why was Proposition 227 itself permissible? By banning a program deemed to be effective in helping LEP children overcome language barriers – and imposing an unproven alternative pedagogy – how could California’s law not conflict with the students’ federally guaranteed right to an equal education?

These were among the arguments raised in federal court by advocates for bilingual education in seeking to overturn Proposition 227 statewide. But the judge in this case found them to be unpersuasive. He declined to block the measure from taking effect, ruling that the plaintiffs had shown no threat of “irreparable harm” to children. The decision did little to dispel the general confusion and contention over these issues.

Unlike many countries, the United States has historically left responsibility for funding and operating public schools largely to state and local governments. Federal involvement was minimal before the 1960s, except in specialized fields such as vocational and Indian education. The National Defense Education Act of 1958, passed in response to Sputnik (the satellite that demonstrated the Soviet Union’s early lead in space exploration), was the first effort at the national level to strengthen mathematics, science, and foreign-language instruction. While initial subsidies and requirements were modest, the federal role increased steadily under the Great Society reforms of the 1960s. Key legislation included the Civil Rights Act of 1964, which banned race, sex, and national-origin discrimination in public facilities, and the Elementary and Secondary Education Act of 1965 (ESEA), which addressed the academic needs of poor children. Both laws have been instrumental in improving the schooling of English learners. At the same time, they have greatly complicated the lines of authority among federal, state, and local officials over public education. Laws and regulations have proliferated, often changing without much notice to stakeholders. So it is no wonder that uncertainty persists about schools’ legal options and obligations in serving LEP students.

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