Bilingual education is not an invention of the 1960s. Contrary to popular misconception, earlier waves of immigrants often enrolled their children in bilingual or non-English-language schools — public and private.
In 1839, Ohio became the first state to adopt a bilingual education law, authorizing German-English instruction at parents’ request. Louisiana enacted an identical provision for French and English in 1847, and the New Mexico Territory did so for Spanish and English in 1850. By the end of the 19th century, about a dozen states had passed similar laws. Elsewhere, many localities provided bilingual instruction without state sanction, in languages as diverse as Norwegian, Italian, Polish, Czech, and Cherokee.
Enrollment surveys at the turn of the 20th century reported that at least 600,000 primary school students (public and parochial) were receiving part or all of their instruction in the German language — about 4% of all American children in the elementary grades. That’s larger than the percentage of students enrolled in Spanish-English programs today. (Until recently, German was the dominant minority language.)
But political winds shifted during the World War I era. Fears about the loyalty of non-English speakers in general, and of German Americans in particular, prompted a majority of states to enact English-only instruction laws designed to “Americanize” these groups. Some went so far as to ban the study of foreign languages in the early grades — a restriction that was struck down as unconstitutional in 1923.
Nonetheless, by the mid-1920s, bilingual schooling was largely dismantled throughout the country. English-only instruction continued as the norm for LEP students until its failure could no longer be ignored. LEP students in English-only classrooms were falling behind in their academic studies and dropping out of school at alarming rates.
The Bilingual Education Act of 1968 — passed during an era of growing immigration and an energized civil rights movement — provided federal funding to encourage local school districts to try approaches incorporating native-language instruction. Most states followed the lead of the federal government, enacting bilingual education laws of their own or at least decriminalizing the use of other languages in the classroom.
Soon after, the Supreme Court recognized that leaving LEP students to “sink or swim” in English-only classrooms made “a mockery of public education” — which must be equally available to all students. The court’s decision in the landmark Lau v. Nichols case required schools to take “affirmative steps” to overcome language barriers impeding children’s access to the curriculum. Congress immediately endorsed this principle in the Equal Educational Opportunity Act of 1974.
Neither the Bilingual Education Act nor the Lau decision requires any particular methodology for teaching LEP students. That is, there is no federal mandate for bilingual education (although a few states mandate it under certain circumstances). What civil rights laws do require are educational programs that offer equal opportunities for LEP children. To enforce this principle, the federal courts and the federal Office for Civil Rights apply a three-step test to ensure that schools provide:
- Research-based programs that are viewed as theoretically sound by experts in the field;
- Adequate resources — such as staff, training, and materials — to implement the program; and
- Standards and procedures to evaluate the program and a continuing obligation to modify a program that fails to produce results.
Politically inspired efforts to eliminate bilingual education, such as the Unz initiative in California, would have a hard time passing this test. States or school districts that persist in such civil rights violations could face severe sanctions, including the loss of all federal education funding.