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Author Name: Wright, Wayne

Book or Periodical Title: Foundations for Teaching English Language Learners
Vol. (iss), Date: 2nd edition
Year Published: 2015
Publisher & Location: Caslon Publishing: Philadelphia
Pages in excerpt: 67-88
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 nd
Education Policy for
English Language Learners
Educators can play significant roles in advocating for their students and mitigating
th e effects of poorly con ceived or inappropriate educational language polici es, or
where more favorable policies have been implemented, teachers can enhance
their students' educational opportunities by building on students' h ome and
comm unity languages w hile h elping them to Jearn the dominant languages
typically required as media of instmction.-Terrence G. Wiley

•••••••••••••••••••••••••••••••••••••••••••••••••••••
KEY TERMS
• adequate yearly progress (AYP) • Equal Educationa l Opportunities Act (EEOA)
• annual measurable ach ievement objectives of 1974
(AMAOs) • ESEA Flexibility
• Bilingual Education Act (Title VII) • Lau Remed ies
• Common Core State Standards (CCSS) • No Child Left Behind Act (NCLB) of 2001
• Elementary and Secondary Education Act • Race to the Top (RTTT)
(ESEA)
• English for the Chi ldren initiatives (Proposi-
tion 227, Proposition 203, and Question 2)

GUIDING QUESTIONS
1. How has the policy context surrounding the ed uca tion of ELLs changed in the United States?
2. How do national state- led consortia and individual state policies and initiatives influence the ed u-
cation of ELLs on the local district and schoollevels7
3. How have the courts influenced the education of ELLs?
4. How can ed ucators use their understanding of the policy and legislative context surrounding ELL
education to enhance their ELLs' access to ed ucational opportunities?

Language and education policy for ELLs in the United States is complicated by the
absence of a centralized education system. Policies that outline rules, regulations, and
procedures related to educating ELLs may come from the federal government, state gov-
ernments, voter initiatives, or court decisions. Policies are set by powerful institutions
usually controlled by members of the dominant group. Some policies have had a dis-
criminatory impact on minorities. Other policies may have been designed to ensure the
protection of minority rights. Sometimes the various stakeholders have reached com-
promises through the democratic process to ensure fairness to all involved. Other times,
those negatively affected by policies have turned to the courts for assistance; these efforts
result in orders that either uphold or require changes to existing policies. As we see in
this chapter, the pendulum swings between discourses of relative tolerance or support
for linguistic diversity and discourses of increased language restrictionism and English-
only efforts. These discourses have serious implications for the education of ELLs.
68 Chapter 4 • Language and Education Policy for Engli sh Language Learners

Educators who work with ELLs need to understand the history and the current lan-
guage and education policies and legislation that affect .their students and classrooms.
We begin with a brief history of bilingual education and policy regarding language use
in the United States. Then we review national state-led consortia and individual state
policies and initiatives regarding ELLs and look at the important role the courts have
played in guiding policies for these students. The chapter concludes by emphasizing how
educators can draw on their understanding of the larger policy context to develop sound
policies on the local district and school levels that ensure equal educational opportuni-
ties for their ELLs.

Historical Perspective
Many people believe that the challenge of educating ELLs and the need for special pro-
grams for them are relatively recent phenomena. Many also believe that in the past immi-
grants and their children quicldy gave up their home languages and cultures to become
Americanized monolingual English speakers. These assumptions are false. The United
States is now, always has been, and will continue to be a multilingual and multicultural
country (de Jong, 2011; Shin, 2013).
Many people assume also that English is the official language of the United States.
But the founding fathers never declared any language as an official language, and the
U.S. Constitution has never been amended to declare English as the official language.
To the founders, declaring an official language would have been unnecessary. By the time
the Constitution was ratified, English was well established as the dominant language.
Also, the founders respected diversity among those who had fought for independence
and were hesitant to offend them by restricting their languages or in any way implying
their inferiority. Throughout U.S. history English has functioned as if it were the official
language, and therefore there has never been a need for an official designation.
Bilingual education has been referred to by some critics as an "experiment" that
began with the passage of the federal Bilingual Education Act of 1968. Three centuries
ago, however, home language instruction and bilingual education were common in
those areas of the United States where non-English-speaking immigrant groups settled
and made up a major portion of the local population (Box 4.1 and Fig. 4.1). For exam-
ple, German bilingual education was offered in the 17th century and continued to be
common in German communities throughout the United States until the United States
entered World War I (Fig. 4.2). Spanish bilingual education programs were common
throughout the Southwest in the 19th century. Blanton (2004) documents the history of
bilingual education in Texas beginning in 1836. And in 1848 the territory of New Mex-
ico, which included modern-day Arizona and parts of Colorado, Utah, and Nevada, had
a law calling for Spanish-English bilingual programs, and other schools in the United
States offered instruction in Chinese, Japanese, French, Cherokee, Swedish, Danish, Nor-
wegian, Italian, Polish, Dutch, and Czech (Crawford, 2004). In Texas, for example, in the
small community of Danevang, founded by settlers from Denmark, students were taught
Danish language and history at the Danevang School, which was established around 1895
(Davis, 2008) (Fig. 4.3).
In 1858 the American Journal of Education published an article, translated from Ger-
man, describing the work of the German scholar Wolfgang Ratich, who in 1612 decried
the sink-or-swim method and proposed that young students be instructed in their na-
tive language first and attain sufficient literacy skills before they were transitioned to
other languages. As Ratich stated, "After the mother tongue, then the other languages"
 Historical Perspective 69

BOX 4.1 American Bilingual Tradition: Education

1800s
• French was a compulsory subject in Massachusetts high schools.
• Dutch was taught in the district schools of seven communities in Michiga n.
• German was taught in Washington, DC elementary schools.
• Many midwestern high schools were bilingual German-English.
Early 1900s
• In some towns in New Jersey, Missouri, Texas, Minnesota, and Indiana, nearly all elementary
school students received German instruction.
• Swed ish, Norwegian, and Danish were taught in many high schools and elementary schools
in Iowa, North Dakota, South Dakota, Minnesota, Wisconsin, Illinois, Iowa, Nebraska, and
Washington.
• Czech was taught in some schools in Texas and Nebraska and was likely taught in other ele-
mentary schools throughout the Midwest.
• Polish was taught in public schools in Milwaukee, and Italian was taught in all grade levels in
elementary school.
• Spanish was a compulsory subject in New Mexico public high schools.
• The French, Russia n, Hungarian, and Italian governments provided support to public and
private schools for the teaching of French in New Orleans, Russian in Alaska, Magyar in Con-
necticut, and Italian in schools throughout the country, respectively.

Mid 1900s
Spanish was taught in elementary schools in severa l cities, including Corpus Christi, Sa n An-
tonio, and El Paso, TX; Los Angeles and San Diego, CA; and Ga inesville and Miami, FL.
Kloss, 1998.

41.( No.I!.) !.-

Philadelphifche
Z E IT UN G.
S 0 N N ABEND, den '4 Jun. ' 73'·

Figure 4.1 Front page of the Philadel-

phische Ze itung, June 24, 1732. Thi s
was Ameri ca's first German-language
newspaper, printed by Benjamin Franklin .
(Retrieved from Library of Congress, www
.lac .gov/rr/european/i mde/i mages/zeitu ng
.jpg)
Chapter 4 • Language and Education Policy for English Language Learners

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: \(\ fl' \' 111\b 1!~\d J t' \1. .c)\) ( lll'l' lt hu ci \lll'\11 l1nil 'on 'od11 ~~nd1 ? .~lctl lln i1~· ~·~· \11'11
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91t'it nuj bt'l' ltlllH' ~

in th\0 lm 'i

Figure 4.2 Bi lingua l German primer used in Texas and other German schoo ls in the United
States in the early 1900s. Published by the American Book Company, New York . (From
University of Texas-San Antonio Libraries Specia l Collections.)

(von Raumer, 1858, p. 229). Ratich had many critics at the time who, like present-day
critics of bilingual education, found his ideas to be radical and scandalous. Ratich died
before he was given a fair chance to prove his ideas, but others carried on his work.
Among them was a language teacher named Hedwig who put Ratich's methods to work
in Germany shortly after his death and "was considered one of the most skillful teachers
of his day" (p. 25 1).
Language minorities have always been a part of the American landscape, but their
unique languages and cultural practices have not always been warmly welcomed by the
broader society. Although there are many instances in the country's history in which
languages other than English were tolerated or even promoted, there also have been
waves of linguistic restrictionism, that is, policies and practices that attempted to limit
or outlaw the use of languages other than English. Such language restrictions by the
dominant group in society against language minority communities were most often im-
posed for purposes of social control, not to help immigrants (and non-English-speaking
native-born Americans) learn English. For example:
• Enslaved Africans were prohibited from using their native tongues for fear their
doing so would facilitate resistance or rebellion.
 Historical Perspective !11

Figure 4.3 Danevang School, 1908. (Photo no. 072- 0724 from University of Texas- San
Antonio Libraries Spec ial Collections.)

• In the 1740s, southern colonies institutionalized "compulsory ignorance" laws,

which prohibited enslaved Africans from acquiring English literacy. These slave
codes remained in force until the end of the Civil War in 1865.
• English proficiency was made a requirement for naturalization and citizenship at
the turn of the 20th century.
• The Americanization movement during and after World War I pushed the belief
that to be American means to speak only English.
• Coercive assimilation policies targeted Native Americans through the establishment
of English-only Indian boarding schools. These schools were designed to eradicate
Indian languages and cultural practices and facilitated the taking of Native Amer-
ican land.
• After World War I, heavy restrictions were placed on German-language instruc-
tion in schools.
• After World War II, Japanese-language schools in California and Hawaii were
closed. (Wiley & Wright, 2004) 1
Restrictions on languages other than English tend to come in waves. Before 1900,
several states and local school districts had laws or policies that allowed bilingual educa-
tion, or at least did not restrict schools from offering such programs (see the examples

1
Wiley, T. G., & Wright, W. E. (2004). Against the undertow: The politics of language instruction in the United States. Educntiounl
Policy, 18(1) , 142- 168. ©Copyright 2004 Sage Publications.
72 1 Chapter 4 • Language and Education Policy for English Language Learners

in Box 4.1). By the late 1880s and early 1900s, however, several states implemented laws
requiring that English be used as the language of instruction in schools.
Language restrictionism is usually tied to other forms of discrimination. Thus, at-
tempts at language restrictionism are rarely about concerns over the languages them-
selves but, rather, about the individuals who speak them (Wiley, 2012). The recent calls
for language restriction coincide with mounting concerns by the majority about chang-
ing demographics with a large and growing Latino population. Debates over bilingual
education take place in the context oflarger debates over issues of immigration.

Evolution of Federal Policy

for English Language Learners
Although the United States has a long history oflanguage diversity, federal involvement
in education is a fairly recent endeavor. Education is not addressed in the U.S. Constitu-
tion. The United States did not have a Department of Education until 1980. Education is
the responsibility of each state.
The federal government has great interest in ensuring the country has well-educated
citizens, but because of the lack of jurisdiction, the best it can do is to offer funding to
supplement state and local funding for schools. The catch is that if states accept federal
education funding, they must follow federal education policies. Currently, all states ac-
cept federal funding, which typically makes up less than 10% of each school's funding.
Nonetheless, all states are subject to federal education law.
Before 1968, there were no federal educational language policies for ELLs. Too often,
schools ignored the needs of language minority students and simply placed them in
regular (often segregated) classrooms, where they were left to "sink or swim:' Education
for language minority students began to improve during the civil rights movement and
President Lyndon B. Johnson's War on Poverty. In 1965 Congress passed the Elemen-
tary and Secondary Education Act (ESEA). Some of the key components of the ESEA
are funds, policies, and procedures that target students from low-income families.

Title VII Bilingual Education Act (1968-2002)

Within the context of the civil rights movement, educators and policymakers became
more sensitive to the needs of the rapidly growing language minority student popula-
tion. Concerned educators noted a high drop-out rate among Mexican American stu-
dents. According to the 1960 U.S. Census, white students on average completed 14 years
of schooling, while Mexican American students on average completed less than 5 years.
In 1966 a conference on the education of Spanish-speaking children sponsored by
the National Education Association resulted in an influential report titled The Invisible
Minority . . . pero no vencibles [but undefeatable]. The report outlined areas of concern
and described innovative education programs in southwestern states that made use of
students' home languages. A successful two-way bilingual program for Cuban refugee
students at Coral Way Elementary School in Florida also garnered much attention. The
report recommended repeal of state English-only instruction laws and declared "In-
struction in pre-school and throughout the early grades should be in both Spanish and
English" and "English should be taught as a second language" (National Education As-
sociation, 1966, p. 6).
Soon after the report was published, Senator Ralph Yarborough of Texas introduced
a bill to provide federal funding for school districts to support bilingual education pro-
 Evolution of Federal Policy for English Language Learners I 73
grams. His bill eventually became the 1968 Bilingual Education Act and entered into
federal law as Title VII of the ESEA. The Bilingual Education Act provided grants to
school districts and other eligible entities through a competitive grant process. Thus,
most regulations associated with Title VII applied only to funded programs.
Yarborough's original bill applied only to Spanish-surnamed students, but 37 similar
proposals introduced by other legislators were ultimately merged into the final bill,
which called for the inclusion of all "children of limited-English speaking ability" (LESA),
defined as "children who come from environments where the dominant language is
.other than English:' The LESA label and additional poverty criteria stressed that the
population to be served was deficient in English and very poor and thus needed remedi-
ation. This deficit view of students is apparent in the findings section of the Bilingual
Education Act (§701), which describes the presence of "millions of children of limited
English-speaking ability" as "one of the most acute educational problems in the United
States" and as a "unique and perplexing educational situation:'
The original version of the Bilingual Education Act was quite vague about solutions
and, ironically, did not include a definition of bilingual education. This omission re-
sulted in great confusion and little agreement among educators and policymakers on the
purpose and goals of Title VII and how students would benefit from instruction in their
home language. Programs receiving Title VII funds were called "bilingual education"
programs, yet were not consistent in the use of students' home languages.
The passage of the Bilingual Education Act led to the adoption of similar policies in
several states. By the early 2000s, 32 states had statutes allowing home language instruc-
tion, and seven states mandated it under certain conditions; seven other states stopped
enforcing their laws prohibiting home language instruction (Crawford, 2004).
Since 1968, the ESEA has been reauthorized six times (1974, 1978, 1984, 1988, 1994,
200 1). Each reauthorization resulted in changes to the Bilingual Education Act. By 1994,
after five reauthorizations and numerous debates and compromises between advocates
and opponents of bilingual education, the goals of Title VII were clarified and defini-
tions of the target population and the programs to serve them were made more explicit.
Each reauthorization resulted in greater recognition of the personal and societal benefits
of bilingualism and bilingual education. The focus on helping ELLs achieve fluency in
English remained constant. Each reauthorization, however, expanded the types of pro-
grams eligible for Title VII funding. Transitional bilingual education programs were the
most likely to receive funding. And though compromises led to some funding for non-
bilingual approaches, the majority of funds were reserved for programs that provided at
least some home language instruction. In addition, there was increasing support for de-
velopmental and dual language programs. Many saw this support as key to changing the
public's view of bilingual education from a compensatory program to an enrichment
program. The Bilingual Education Act was reauthorized for the final time in 1994 and
remained in effect until the beginning of 2002. A detailed discussion of the reauthoriza-
• tions is available on the Companion Website.

No Child Left Behind

Federal policy for language minority students learning English changed dramatically
with the passage of the No Child Left Behind Act (NCLB) of 2001 (Public Law 107-
110), President George W Bush's plan for the reauthorization of the ESEA. The Title VII
Bilingual Education Act was replaced by Title III, "Language Instruction for Limited
English Proficient and Immigrant Students:' Note that the word bilingual was removed,
and that NCLB uses the limited English proficient (LEP) label depicting students from a
Chapter 4 • Language and Education Po li cy for English Language Learners

deficit view. NCLB also removed the word bilingual in the renaming of the associated
office and clearinghouse.2
ELL issues are also featured prominently in changes to Title I, "Improving the Aca-
demic Achievement of the Economically Disadvantaged;' which places heavy emphasis
on accountability through high-stakes testing. In the sections below, we will briefly re-
view the requirements of NCLB. It is important to note upfront, however, that while
NCLB remains the law of the land (as of this writing), by 2014 nearly all states were
granted flexibility from the accountability requirements of Title I, as will be discussed
below. The requirements specific to ELLs in Title III remain intact, and thus will be ad-
dressed first, while Title I will only be discussed briefly.

Title III: Language Instruction for Limited English Proficient

and Immigrant Students
Title III provides formula grants to state education agencies, which, in turn, make sub-
grants to eligible local education agencies (i.e., school districts and charter schools) that
apply to the state for the funds. Unlike the Bilingual Education Act, Title III does not
make any distinctions between bilingual and nonbilingual programs. The federal law
requires only that ELLs be placed in "language instruction education programs;' defined
as an instructional course:
(A) in which a limited English proficient child is placed for the purpose of de-
veloping and attaining English proficiency, while meeting challenging State ac-
ademic content and student academic achievement standards; and
(B) that may make instructional use of both English and a child's native language
to enable the child to develop and attain English proficiency, and may include the
participation of English proficient children if such course is designed to enable
all participating children to become proficient in English and a second language.
(NCLB §3301[8])
Thus, any program for ELLs must meet only two requirements: teach English, and
teach academic content, as outlined in state English language proficiency (ELP) and aca-
demic standards. Instruction in the native language is optional. This option, without
referring to transitional bilingual education or dual language programs by name, nonethe-
less makes allowances for these types of programs. Title III gives the ultimate authority
to each state to determine what programs it will allow. To receive Title III funds, school
districts must submit plans to the state, which in turn must submit plans to the U.S. De-
partment of Education. These plans must describe how they are "using a language in-
struction curriculum that is tied to scientifically based research on teaching LEP children
and that has been demonstrated to be effective ... in the manner the eligible entities
determine to be the most effective" (NCLB §3301 [b][6]).
Unlike Title VII, Title III includes no recognition of the personal and societal bene-
fits of bilingual education and bilingualism. The recognition of the linguistic resources
ELLs bring to school and the benefits of bilingualism to society so apparent in the 1994
reauthorization of Title VII were stripped from federal law. Nor is there any acknowl-
edgment of the factors that have negatively affected the education of ELLs, such as segre-
gation, improper placement in special education, underrepresentation of ELLs in gifted

'Under NCLB, the Office of Bilingual Education and Minority Language Affairs was renamed the Office of English Language
Acquisition, Language Enhancement, and Academic Achievement for Limited English Proficient Students; the National Clear-
ingho use for Bilingual Education was renamed the National Clearinghouse for English Language Acquisition and Language In-
stru ction Educational Programs.
 Evolution of Federal Policy for English Language Learners

and talented education, and shortages of bilingual teachers. Not addressed are issues of
cultural differences or the need for multicultural understanding.
The sole focus of Title III is English. The list of purposes stresses repeatedly that Title
III funds and programs are to "ensure that LEP students attain English proficiency, de-
velop high levels of academic attainment in English, and meet the same challenging
State academic content and student academic achievement standards as all children are
expected to meet" and to assist state and local education agencies in creating "high qual-
ity instructional programs" that prepare LEP students to "enter all-English instruction
settings" (NCLB §3102). Another stated purpose of Title III is "to hold State educational
agencies, local educational agencies, and schools accountable for increases in English
proficiency and core academic content knowledge" ofLEP students by requiring "demon-
strated improvements in the English proficiency" and "adequate yearly progress" on
state academic achievement tests (NCLB §3102[8]).
To identify ELLs, most school districts administer a home language survey at the
time of initial school enrollment to determine whether students have a "primary home
language other than English" (PHLOTE). PHLOTE students are then assessed with an
ELP test. Those determined to be lower than proficient are identified as ELLs. There
is great variability across states and school districts in the home language surveys, ELP
tests, and procedures used to identify ELLs. These inconsistencies make it difficult to
accurately measure the national ELL population accurately.
NCLB requires each state to develop ELP standards and ELP assessments designed to
measure ELLs' progress in meeting those standards. The standards and assessments must
be based on "the four domains of speaking, reading, listening, and writing;' and assess-
ments must also include the domain of "comprehension" as exhibited through listening
and reading (U.S. Department of Education, 2003, p. 5). In addition, the standards es-
tablished for each grade level must identify benchmarks for ELLs at different levels of
English proficiency. Each state's ELP standards must have the following components:
1. A label for each level (e.g., Beginning, Early Intermediate, Intermediate, Early Ad-
vanced, Advanced)
2. A brief narrative description that suggests the defining characteristics of the level
3. A description of what students can do in content at this level of English language
proficiency
4. An assessment score that determines the attainment of the level (p. 8)
When NCLB went into effect few states had language proficiency standards and assess-
ments that met these requirements. Most states faced substantial challenges meeting
federal deadlines for the development and reporting the results of these ELP standards
and assessments.
ELP assessments must be given annually to all ELLs, and results are a part of each
state's accountability system. Each state must establish baseline data and then set annual
measurable achievement objectives (AMAOs) to hold school districts accountable for
the progress of ELLs in attaining proficiency in English. School districts' adequate
yearly progress (AYP) in achieving Title III AMAOs is determined by "annual increases
in the number or percentage of children making progress in learning English" and "an-
nual increases in · the number or percentage of children attaining English proficiency
by the end of each school year" (N CLB §3122 [a] [3]). In addition, AMAOs under Title
III include ELLs meeting the AYP requirements under Title I. Title III outlines serious
consequences for districts that fail to make AYP related to ELLs' progress and attain-
ment of ELP. These consequences range from requiring districts to develop and follow
an improvement plan to replacing district educators and cutting off Title III funding.
Chapter 4 • Language and Education Policy for English Language Learners

While ELP standards and assessments are important for guiding instruction and
tracking student progress in developing proficiency, they have their own unique set of
problems. As noted previously, the construct of language proficiency is highly complex
and multidimensional, maldng it nearly impossible to organize language into neat lists
of specific knowledge and skills, and very difficult to measure with accuracy.

Title I: Improving the Achievement of the Economically Disadvantaged

The stated purpose of Title I is "to ensure that all children have a fair, equal, and signifi-
cant opportunity to obtain a high quality education and reach, at a minimum, proficiency
on challenging State academic achievement standards and State academic assessments"
(NCLB §3122[b]). Title I mandates annual testing of all students in grades 3 through 8
and once in high school in reading/English language arts and mathematics, and three
times between grades 3 and 12 in science. This included ELLs, regardless of their English
proficiency or how long they had been in the country. 3 Title I requires that ELLs must be
tested in a "valid and reliable manner" and be provided "reasonable accommodations:'
Each state is required to create its own academic content and achievement standards
and assessments to measure those standards and use the results to hold schools, districts,
and the state itself accountable. States were expected to ensure that all students (including
ELLs) passed these state tests by 2014. To accomplish this lofty goal, states were required
to set AMAOs with increasingly higher percentages of students passing state tests up to
a 100% passing rate expectation in 2014. Schools, districts, and states that met these an-
nual achievement targets were deemed to be making AYP. Students are disaggregated by
gender, major racial or ethnic groups, students with disabilities, students with limited
English proficiency, and students who are economically disadvantaged. If any of these
subgroups failed to meet the annual achievement target, the entire school, district, or
state was deemed as failing to make AYP. Consistent failure to make AYP led to sanctions
with increasing levels of severity for each year of failure, with the ultimate threat of firing
all the teachers and administrators, or turning the school over to a private company.
Title I testing requirements for academic content tended to discourage the use of
bilingual education programs (Gandara & Hopldns, 2010; Menken, 2008; Wright, 2007).
Despite allowances for testing in the home language, the vast majority of ELLs took state
tests in English. Schools with large ELL populations felt immense pressure to ensure that
the LEP subgroup made AYP at the risk of the entire school being labeled as failing.
Despite the challenges, critics and proponents of NCLB agree that it has brought re-
newed attention to the needs of ELLs (Haycock, 2006). Nonetheless, there is widespread
evidence that NCLB's technical flaws, unrealistic expectations, and overreliance on high-
stakes tests ended up causing much more harm than good (Menken, 2008; Nichols &
Berliner, 2007; Wright, 2005, 2008). After a decade of defending NCLB, there is now
widespread, bipartisan acknowledgment among policymakers that despite good inten-
tions, NCLB is flawed, rigid, and unrealistic and has failed to produce the promised aca -
demic gains. As the school year ended in 2014, schools and states were far from reaching
the expectation that 100% of students-including ELLs-passed all of their state tests.

Obama Administration and Federal Education Policy

When Barack Obama was sworn in as the 44th president in 2009, education reform had
taken a back seat to other pressing national concerns, particularly the economy. During

' Two exceptions were eventually added for newcomer ELLs in the United States for less than one year. Beginning in 2002 they could
to be excluded from reading tests, and beginning in 2006 their math test scores could be excluded from school AYP calculations.
 Evolution of Federa l Policy for Engl ish Language Learners

his initial campaign, Obama expressed support for bilingual education and criticized
NCLB and its emphasis on high-stakes testing. Few defenders ofNCLB remain. None-
theless, to date Congress has failed to make any changes, although the ESEA has been
overdue for reauthorization since 2008. The Obama administration found ways to work
around NCLB by launching other significant school-reform initiatives leading to sub-
stantial changes at the federal level, including Race to the Top grants and ESEA Flexibility.
These reforms also set the national stage for a state-led new standards and assessments
movement.

Race to the Top

The Obama administration set the stage for major education reforms through the Amer-
ican Recovery and Reinvestment Act of 2009 (ARRA), which included over $44 billion
in stimulus funding for education. In July 2009 President Obama announced a new pro-
gram as part of the ARRA called Race to the Top (RTTT), which provided over $4 bil-
lion in competitive grants for states to begin education reform efforts. By 2012, nearly
half of the states had been awarded RTTT grants. 4 State grantees must adhere to four
general requirements for the use of RTTT funds (U.S. Department of Education 2009a,
2009b):
1. Adopting internationally benchmarked standards that prepare students for suc-
cess in college and the workplace, and high-quality assessments that are valid and
reliable for all students, including English language learners and students with
disabilities
2. Recruiting, developing, rewarding, and retaining effective teachers and principals
3. Increased transparency by building data systems that measure student success
and inform teachers and principals how they can improve their practices
4. Supporting effective intervention strategies to turn around the lowest-performing
schools
ELL advocates and others have expressed deep concern that the emphasis on high-stakes
testing remains (Sawchul<, 2010). The requirement that teacher performance evaluations
be tied to their students' test scores means that teachers of ELLs will be held accountable
for test scores of questionable validity and thus may be unfairly penalized. In addition,
civil rights groups found that ELL issues were not adequately addressed in funded state
proposals (Zehr, 2010a) .

Elementary and Secondary Education Act Flexibility

As noted earlier, NCLB remains the law of the land. In 2011, the vast majority of states
were deemed as failing to make AYP. With the looming unrealistic expectation just 3 years
away that 100% of students would pass state tests, the Obama administration invited
states to apply for ESEA Flexibility. Specifically, states may be granted flexibility from
the Title I accountability requirements of NCLB. In a reflection of the RTTT principles,
to qualify, each state had to submit a request proposing an acceptable alternative system
for school reform and accountability, addressing the following key principles:
1. College- and career-ready expectations for all students-States are required to adopt
college ·a nd career-ready standards, such as the Common Core State Standards,

4 RTTT grant recipients: Arizona, California, Colorado, Delaware, DC, Florida, Georgia, Hawaii, illinois, Kentucky, Louisiana,
Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode
Island, Tennessee, Washington, and Wisconsin. School district level RTTT grants are also awarded in some stales without state-
wide RTTT grants.
 Chapter 4 • Language and Education Policy for English Language Learners

and also to revise their English language proficiency standards for ELLs to reflect
the academic language skills corresponding with these college- and career-ready
standards.
2. State-developed differentiated recognition, accountability, and support-States are
required to develop or adopt fair, flexible, and focused accountability and support
systems. This_includes the development or adoption of a new generation of tests
and assessment procedures aligned with college and career-ready standards, such
as those being developed by the two state consortia, PARCC and Smarter Bal-
anced. States must also establish interventions specifically focused on improving
the performance of ELLs.
3. Supporting effective instruction and leadership-States are required to develop fair
but rigorous principal and teacher evaluation systems. A required key component
is evaluating teachers based on their students' test scores. (U.S. Department of
Education, 2012)
By the end of 2014, 43 states, the District of Columbia, and Puerto Rico had been ap-
proved for ESEA Flexibility, with other requests awaiting approval. 5 While California as
a whole does not have flexibility, 10 of the state's largest school districts came together to
form a learning cooperative called the California Office to Reform Education (CORE) to
obtain their own ESEA Flexibility. 6
Most state flexibility applications provide little detail about how ELL issues will be
addressed. In many of the state plans, ELLs are combined with other "at-risk" students
into one large super-subgroup, rather than in their own subgroup. This practice poten-
tially means the unique linguistic, cultural, and academic needs of ELLs will be far less
apparent and less likely to be addressed.
The U.S. Department of Education responded to these concerns by contracting with
the American Institutes for Research to review state ESEA Flexibility applications and to
issue guidelines containing specific steps states must take to address ELL issues (August,
Estrada, & Boyle, 2012). As these efforts are just beginning at the time of this writing,
· it remains to be seen how well they will be implemented. The flexibility and guidelines,
however, do create an opportunity to provide states with greater leeway for more effec-
tive approaches for teaching and assessing ELLs, with reasonable expectations based on
important factors, such as how long ELLs have been in the country and their current
level of English proficiency. While the ESEA Flexibility has been a welcomed relief from
NCLB's unreasonable expectations, state policymakers have charged it is an insufficient
temporary fix and continue to demand that Congress take action to make needed changes
and reauthorize the ESEA (Lambert, 2012).

State-Led Initiatives and Consortia

With the absence of a national centralized education system, each state and territory of
the United States must develop its own standards, curriculum, and assessments. While
these must be aligned with federal education policy to be eligible to receive federal
school funding, the U.S. government lacks the authority to impose a specific national
curriculum and assessments. Thus, as states have scrambled to comply with NCLB, we
technically have had over 50 different sets of standards and assessments with varying

' Iowa and Wyoming, as weU as the Bureau oflndian Education, have outstanding requests for ESEA Flexibility. The five states that
did not have active requests are California, Montana, Nebraska, Nort h Dakota, and Vermont.
6
1he 10 school districts that form CORE are Clovis, Fresno, Garden Grove, Long Beach, Los Angeles, Oakland, Sacramento, San
Francisco. Sanger, and Santa Ana.
 State-Led Initiatives and Consortia 179
degrees of rigor and expectations. This system makes it difficult to make meaningful
comparisons across states, particularly for ELLs as each state defines, identifies, assesses,
and redesignates ELLs in different ways. Furthermore, less-populated states often have
fewer resources and less expertise to develop sophisticated school accountability systems.
To address these issues, many states have formed coalitions to jointly develop stan-
dards and assessments. Some of these state coalitions were formed to address the require-
ments ofNCLB, and others have been formed to move beyond NCLB in the space opened
up by RTTT and ESEA Flexibility. We turn next to these state-led initiatives.

Common Core State Standards Initiative

The Common Core State Standards (CCSS) Initiative is a state-led effort initiated by the
National Governors Association and the Council of Chief State School Officers (CCSSO)
to develop language arts and mathematics standards that states voluntarily adopt. In line
with federal principles and requirements to obtain an RTTT grant or ESEA Flexibility,
the cess are described as rigorous, internationally benchmarked college- and career-
ready "next generation" standards that are designed to raise the bar and ensure that all
high school graduates are prepared for the academic rigors of college coursework and
the demands of the workforce. Individual states and territories began to voluntarily
adopt the CCSS in 2010. By 2014, 43 states, the District of Columbia, four U.S. territo-
ries, and the Department of Defense school system had adopted the CCSS, which must
make up at least 85% of their state's language arts and mathematics standards. 7 A sepa-
• rate but related national effort led to release of the Next Generation Science Standards in
2013, which many states and territories will also lil<ely eventually adopt.
The CCSS Initiative stresses that it does not call for or support a "national curricu-
lum"; rather, the cess identify the essential knowledge and skills that all students need
but do not specify how they are to be taught. Nonetheless, these nearly national stan-
dards are designed to open the way for the development of common textbooks, digital
media, and teaching materials that are aligned to cess and thus can be used across the
country. More significantly, the CCSS Initiative is designed to enable common compre-
hensive assessment systems to replace existing state testing programs.
Critics have questioned why the CCSS have been adopted so widely without any
field testing and whether they are really a "state-led" effort. Critics also have argued that
the real agenda behind the cess is to make it easier and much more profitable for pri-
vate companies to develop and sell educational products and tests to the K-12 market
(Box 4.2). Critics have expressed concern too that the CCSS Initiative will lead to even
more testing, at more grade levels, than has been required under NCLB, thus generating
even bigger profits for testing companies and other businesses and creating greater bur-
dens on teachers and students (Krashen, 2012).
The CCSS do not specifically address ELLs and do not replace the state English lan-
guage proficiency standards required by Title III. But they do include specific language
standards and are designed to develop the "academic language" skills of all students. The
cess do not specify the language of instruction and thus are compatible with bilingual
education approaches (Brisk & Proctor, 2012). For example, the New York Bilingual
Common Core Initiative has established home and new language arts progressions and
other tools to help teachers differentiate language arts instruction according to students'

7
By the end of2014 Alaska, Indiana, Nebraska, Oklahoma, Texas, Virginia, and Puerto Rico had not adopted the CCSS. Minne-
sota adopted only the English language arts (ELA) standards. lndiana originally adopted the CCSS but became the first state to
pull out.
ao I Chapter 4 • Language and Education Policy for Engli sh Language Learners

BOX 4.2 Are the Common Core State Standards a "State-Led" Grassroots Effort?
Some critics charge that the CCSS are not a voluntary state-led grassroots effort, but rather
have been driven by big business and the federa l government. Ravitch (2013b) notes that "they
were developed by an organ ization called Achieve and the National Governors Association,
both of which were generously funded by the Gates Foundation" and argues that "it was well
understood by states that they wou ld not be eligible for Race to the Top funding ($4.35 bi llion)
unless they adopted the Common Core standards" (p. 1). Most states seeking ESEA Flexibility
adopted the cess also beca use of pressure to meet federal requirements for "college and ca-
reer readiness sta ndards," t hough some states (e.g., Texas, Indiana) elected to develop their
own. In 2010 the Obama adm inistration provided $330 million in funding through the RTTT
Assessment Grant program to two state consortia (PARCC and Smarter Balanced) to develop a
"new generation of tests" aligned with the CCSS. The federal government also provided over
$16 million in funding to two consortia of states, WIDA and ELPA21, to develop new generation
English language proficiency assessments that are based on standards that correspond with
the cess.
The business community's staunch support for the CCSS, even in the face of growing bipar-
tisan opposition, suggests they have much to gain (Krashen, 2012; Ravitch, 2013a, 2013b;
Strauss, 2013). Indeed, Weiss (2011), the chief of staff to U.S. Secretary of Education Arne
Duncan, declared in the Harvard Business Review blog that "the adoption of common stan-
dards and shared assessments means that education entrepreneurs will enjoy national markets
where the best products can be taken to scale" (p. 1). The business comm unity has already
provided millions of dollars in grants and other financial support to various entities involved in
the cess, and the leaders of 73 top business corporations took out a full-page advertisement in
the NE v, tm .:;, on February 12, 2013, to publish an open letter of support for the cess.

language development levels. Teachers can also use these progressions to support dynamic
bilingual and biliteracy development in CCSS classrooms (EngageNY, 2013). At the
same time, the CCSSO, the California Department of Education (CDE), and the San
Diego County Office of Education (SDCOE) have created a translated and linguistically
augmented version of the CCSS in Spanish titled Common Core en Espafiol
ELL advocates and experts are divided over the implications of the CCSS for ELLs.
Some, as noted earlier, question the real agenda behind the standards and are concerned
that raising the bar for all students with rigorous new standards, increasing the use of
high-stakes standardized tests, and emphasizing the use of complex informational texts
will only leave ELLs even further behind (Crawford, 201 2; .KJ.·ashen, 201 2; Ohanian, 2013;
Ravitch, 2013b).
Other ELL experts, however, view the CCSS as an opportunity to make much-
needed instructional and assessment changes that will lead to higher levels of achieve-
ment for ELLs (Calderon, 2013; Fillmore, 2013; Hakuta, 2011). Pompa and Hakuta
(2012) note the potential benefits for ELLs:
The current policy environment is inhospitable to the improvement of educa-
tional prospects for ELLs. Yet the wave of reform unleashed by the new stan-
dards offers opportunities for better policies that would benefit ELLs because of
an amplified focus on language. The policy, practice and research communities
concerned with ELLs must emerge with a clear and coherent consensus on the
aspects of the CCSS that advance educational prospects for ELLs, to help define
 State-Led Initiatives and Consortia

what is appropriate and well-tailored to the needs of the range of ELL students.
(p. 6)
Several ELL experts are working within state consortia related to the CCSS, and a team
of prominent national ELL experts has formed the Understanding Language group led
by Kenji Hakuta, a Stanford University professor, and Maria Santos, deputy superinten-
dent of the Oaldand Unified School District. The purpose of the Understanding Lan-
• guage national initiative is to develop knowledge and resources to help content-area
teachers meet the linguistics needs of ELLs as they address the CCSS.

Common Core State Standards Assessment Consortia

Two state consortia have received federal funding from the RTTT Assessment Program
to develop "next-generation" language arts and mathematics assessments designed to
measure student achievement of the CCSS. The Partnership for the Assessment of Read-
iness for College and Careers (PARCC ) is a consortium of 13 states and territories,
working in partnership with Achieve, Inc., to manage the project. 8 The Smarter Bal-
anced Assessment Consortium ("Smarter Balanced" for short) is a consortium of 23
states and territories, working with WestEd as their management partner. Both consor-
tia are developing a series of online formative and summative computer-based tests to
be administered at different points throughout a school year that will require schools
to have access to a substantial number of sophisticated computers and fast and reliable
Internet access. Both consortia are collaborating with ELL experts to develop policies,
procedures, and accommodations for ELLs. The assessments are to be fully implemented
in the 2014- 2015 school year and will be used by each participating state as the federally
required language arts and math assessments. Both consortia will also have additional
diagnostic and optional formative assessments, including at grade levels not required by
the federal government, that states may choose to adopt. Both PARCC and Smarter Bal-
anced will also claim the ability to measure the progress of individual students' growth
over time.

English Language Proficiency Assessment Consortia

The World-class Instructional Design and Assessment (WIDA) state consortium, led by
Wisconsin, was established in 2002 to develop common English language proficiency
standards and assessments to comply with Title III ofNCLB. WIDA contracted with the
Center for Applied Linguistics to develop the English language proficiency assessment,
called the Assessing Comprehension and Communication in English State-to-State for
English Language Learners (ACCESS for ELLs). By 2012, the ACCESS for ELLs assess-
ment had been fully administered to nearly 1 million ELLs across 27 states. As of 201 4,
35 states and territories were participating in the WIDA Consortium. In 201 2, WIDA
made revisions to its standards to produce what it called the "Amplification of tl1e WIDA
English Language Development Standards" (WIDA Consortium, 2012) . These revisions
were made to comply with the requirement for member states that received ESEA Flexi-
bility or that had adopted the CCSS to have English language proficiency standards that
correspond with college- and career-ready standards.

8
The number of PARCC participating states and territories declined from 24 to 13 by 201 4. A couple of states also pulled out of
the Smarter Balanced consortium by 201 4. This decline demonstrates the complex.ities of the politics and debate surrounding
Common Core standards and assessments.
Chapter 4 • Language and Education Policy for English Language Learners

A consortium of 35 states led by Wisconsin, in collaboration with WIDA under the

name Assessment Services Supporting ELs through Technology Systems (ASSETS), was
awarded a $10.5 million Enhanced Assessment Grant in 2011 from the U.S. Department
of Education to develop a new computer-based English language proficiency assessment
based on WIDA's ACCESS for ELLs and aligned with the CCSS. Nearly all states in the
ASSETS Consortium are already participants in the WIDA Consortium. The Cent.er for
Applied Linguistics has been contracted to help develop the new computer-based as-
sessment ACCESS for ELLs 2.0, which is scheduled for completion and implementation
in the 2015-2016 school year.
In 2012, a group of 11 states led by Oregon-the English Language Proficiency As-
sessment for the 21st Century (ELPA21) Consortium-was awarded a $6.3 million fed-
eral grant for the creation of a common computer-based English language proficiency
assessment based on the English Language Proficiency Standards developed by WestEd
and aligned with the CCSS. Educational Testing Service (ETS) has been contracted to
help develop the ELPA21 assessments, scheduled to be fully implemented by the 2016-
2017 school year. Table 4.llists the state members of each consortium.

State Policies for English Language Learners

Bilingual education, as discussed earlier, was once common in this country, particularly
in isolated areas where immigrants from non-English-speaking countries settled and
were the dominant groups and in areas of the Southwest where Spanish speakers were
long the dominant group. As state governments began assuming more responsibility
for public schooling and as pressure built during the Americanization movement, many
states passed English-only instruction laws. After the passage of the Bilingual Education
Act in 1968 and the Lau v. Nichols decision by the U.S. Supreme Court in 1974 (dis-
cussed in the next section), many state governments repealed these laws and many oth-
ers also created their own bilingual education mandates.
The policy scene changed dramatically after voters in three states with large ELL
populations-California, Arizona, and Massachusetts-approved English for the Chil-
dren initiatives, which placed severe restrictions on bilingual education programs. In
1998 California voters approved Proposition 227, in 2000 Arizona voters approved
Proposition 203, and in 2002 Massachusetts voters approved Question 2. An attempt
to pass a similar initiative in Colorado (Amendment 31) failed.
The initiatives were authored, funded, and led by a California millionaire software
developer who ignored the history, purpose, and design of bilingual programs. He
claimed that bilingual education programs are a violation of immigrant children's right
to learn English and used misleading statistics and data and false claims in making the
case for eliminating bilingual education programs. TI1e Companion Website contains a
short article with details about these misleading and false claims.
Analyses of the impact of the initiatives have found no evidence that the replacement
of bilingual education programs with mandates for structured (or sheltered) English im-
mersion have helped ELLs learn English faster or perform at higher levels on state
achievement tests (American Institutes for Research & WestEd, 2006; Hill, 2006; Ma-
honey, Thompson, & MacSwan, 2005; Wright & Pu, 2005). Arizona education officials
attempted to claim that Proposition 203 resulted in more than doubling the number of
ELLs attaining English proficiency each year (Zehr, 2010b). An investigation by the fed-
eral Office of Civil Rights in 2010, however, revealed that Arizona's English language
proficiency test was not providing a valid measure of ELLs' English proficiency, and that
 State Policies for English Language Learners

TABLE 4.1 State Consortia

Common Core State Standards English Language Proficiency Standards and
Assessment Consortia Assessment Consortia
Smarter Balanced PARCC WIDA/ASSETS ELPA21
California Arkansas Alabama Arkansas
Connecticut Colorado Alaska Florida
Delaware District of Columbia Colorado Iowa
Hawaii Illinois Delaware Kansas
Idaho Louisiana District of Columbia Louisiana
Iowa Maryland Florida* Nebraska
Ma ine Massachusetts Georgiat Ohio
Michigan Mississippi Hawaii Oregon
Missouri New jersey Idaho* South Carolina
Montana New Mexico Illinois Washington
Nevada New York Indiana West Virginia
New Hampshire Oh io Kentucky
North Carolina Rhode Island Maine
North Dakota Maryland
Oregon Massachusetts
Pennsylvania Michigan
South Dakota Minnesota
U.S. Virgin Islands Mississippi
Vermont Missouri
Washington Montana
West Virginia Nevada
Wisconsin New Hampsh ire
Wyoming New jersey
New Mexico
North Carolina
North Dakota
N. Mariana Islands
Oklahoma
Pennsylvania
Puerto Rico*
Rhode Island
South Dakota
South Carolina
U.S. Virgin Islands§
Utah
Vermont
Virginia
Wisconsin
Wyoming
. . This li st reflects me mbership as of August 20 I4. Several states or iginally w ith one o r more co nsortia have withdrawn, and more changes are likely be-
lili cause oft he growing oppos ition to the CCSS. For the latest see li st of member states for PARCC. Smarter Ba lanced , \VIDA, and ELPt\2 1.
4
Adopti on of Standards only.
1W IDAonly.

*Adoption ofW IDA Spanish language development standard s.

' ASSETS only.

the state was forcing students out of ELL programs and into mainstream classroom be-
fore they had attained sufficient English proficiency (Office for Civil Rights, 2010).
Despite opposition, bilingual education is thriving, even in the three states that
passed the English for the Children initiatives. Several schools in California, Arizona,
and Massachusetts have used the waiver provisions of the law to continue bilingual pro-
grams because they are effective and parents want them for their children (Combs et al.,
2005; Wright, 2004b, 2005). The annual conference of the California Association for
Bilingual Education continues to draw thousands of educators each year, and in 2012
California was the first state in the country to establish the Seal of Biliteracy to officially
84 I Chapter 4 • Language and Education Po licy for English Language Learners

recognize the bilingual skills of graduating seniors on their high school diplomas. A leg-
islative proposal (SB 1174) has been approved in California to place an initiative before
voters in November 2016 to replace Proposition 227 with a bill allowing schools to im-
plement bilingual and multilingual education programs. In Massachusetts, dual language
programs were exempted from the law altogether (de Jong, Gort, & Cobb, 2005). Several
states still have strong bilingual education policies, and in most other states, bilingual
education is neither restricted nor required but remains a viable option. Nearly half of
the states in the country have professional organizations for bilingual education, and the
number of states reporting one or more school districts offering bilingual programs in-
creased from 38 to 43 in 2008 (OELA, 2012). Thus, many schools are indeed continuing
to provide bilingual programs because they have found them to be effective in meeting
the language and academic needs of their ELLs.

Important Court Decisions and Legislation

Historical reluctance by many states throughout the country to provide equitable educa-
tional opportunities to ELLs and other minority students and controversies over the use
of languages other than English in public schools have sparked a large number of law-
suits. Court decisions in these lawsuits have led to legislative changes that have helped
to shape the policy climate of today. Here we briefly look at a few key court rulings that
have affected ELL education. A more detailed review of these and other cases is available
on the Companion Website.
Brown v. Board of Education (1954) along with other segregation cases have made it
clear that ELLs cannot be fully separated from other students throughout their educa-
tion under the guise of helping them learn English. But Brown also made clear that states
are responsible for providing students with "equal educational opportunities;' opening
the way for high-quality bilingual programs. Court rulings in cases such as Meyer v.
Nebraska (1923) and Farrington v. Tokushige (1927) have established states' authority
to determine the language of instruction in public schools, but the court protected the
right of parents to organize after-school and weekend heritage language classes for their
children.
The 1974 Supreme Court case Lau v. Nichols resulted in perhaps the most important
court decision regarding ELL education. Chinese American students in San Francisco
were placed in mainstream classrooms despite their lack of proficiency in English and
left to "sink or swim:' The district argued that the Chinese American students received
treatment equal to that of other students. Justice William Douglass, in writing the court's
opinion, strongly disagreed, arguing: "There is no equality of treatment merely by pro-
viding students with the same facilities, textbooks, teachers, and curriculum; for stu-
dents who do not understand English are effectively foreclosed from any meaningful
education:'
Following the court's decision, the U.S. Department of Education's Office of Civil
Rights created the Lau Remedies to go after districts that were ignoring the needs of
ELLs. The Lau Remedies essentially required districts to implement bilingual education
programs for ELLs. 1he essence of Lau was codified into federal law though the Equal
Educational Opportunities Act (EEOA) of 1974, soon after the case was decided. Sec-
tion 1703(£) declares: "No state shall deny educational opportunities to an individual on
account of his or her race, color, sex, or national origin by . .. the failure of an educa-
tional agency to take appropriate action to overcome language barriers that impede equal
participation by its students in its instructional programs:' Although other legal actions
 Language Policy at the Local Level ls5
have since made it clear that the Supreme Court did not mandate bilingual education,
the EEOA remains in effect and several subsequent lawsuits have been based on this
important legislation.
The right to bilingual education suffered a further blow in 1981 in the Texas case
Castaneda v. Pickard. Although the federal court found that the Raymondville School
District fell far short of meeting the requirements of the EEOA, the court did not sup-
port the plaintiff's demands for bilingual education. A major outcome of this case, how-
ever, is a three-pronged test to determine whether schools are taking "appropriate action"
to address the needs of ELLs as required by the EEOA.
The Castaneda standard mandates that ELL programs are (1) based on a sound edu-
cational theory, (2) implemented effectively with sufficient resources and personnel, and
(3) evaluated to determine whether they are effective in helping students overcome lan-
guage barriers (Del Valle, 2003). The Castaneda standard has essentially become the law
of the land in determining the adequacy of programs for ELLs. The Castaneda test, how-
ever, has shortcomings. Under the first two prongs, nearly any program can be justified
by an educational theory, and some approaches require very little in the way of staff or
funding (Del Valle, 2003). Under the third prong, a certain amount of time must pass
before a determination can be made about the adequacy of the programs. Thus, many
students may be harmed before inadequate programs are identified and rectified. With
this ambivalence, in some cases the Castaneda test has been used successfully to rectify
inadequate programs for ELLs (e.g., Gomez v. Illinois State Board of Education, 1987),
while in other cases, the tests' shortcomings have led to decisions upholding policies and
programs of highly questionable quality (e.g., Flores v. Arizona, 2000).
These cases reviewed, along with many others, demonstrate that courts have been
reluctant to mandate a particular educational model or to give language minorities fun -
damental rights directly related to the use of their home languages. But the courts have
made it clear that schools may not ignore the unique needs of ELLs. Any program for
ELLs, regardless of the language of instruction or the models used, must do two very
important things: teach English and teach academic content. Schools must provide En-
glish language development instruction for ELLs because they are not yet proficient in
English, and because they need fluency in English to succeed in mainstream classrooms
and to be successful in life in general in the United States. At the same time, schools can-
not focus just on teaching English. Students must also learn the same academic content
their English proficient peers are learning in such subj ects as language arts, math, sci-
ence, social studies, music, art, and physical education. In the next chapter we review the
different program models for ELLs and how these programs address the legal require-
ments for teaching English and the content areas.

Language Policy at the Local Level

Federal and state policies for ELLs have raised awareness that schools are responsible for
meeting the needs of ELLs. An important first step in assuming that responsibility is to
articulate a school or district language policy. "A language policy;' according to Corson
(19<i9),

is a document compiled by the staff of a school, who are often assisted by other
members of the school community, to which the staff give their assent and com-
mitment. It identifies areas in the school's scope of operations and programs
where language problems exist that need the commonly agreed approach offered
by a policy. A language policy sets out what the school intends to do about these
Chapter 4 • Language and Education Policy for English Language Learners

areas of concern and includes provisions for follow-up, monitoring, and revision
of the policy itself in light of changing circumstances. It is a dynamic action
statement that changes along with the dynamic context of a school. (p: 1)

Corson (2001) asserts that in multilingual settings W<e the United States, three pol-
icy principles are necessary:

1. Children have the right to be educated in their home language.

2. If the first principle cannot be met, children have the right to attend a school that
respects and values their home language.
3. Children have the right to learn the standard language variety (e.g., standard En-
glish in the United States) to the highest level of proficiency possible.

These three principles should be a starting point for schools in developing their own
language policies. A school's language policy, along with an accompanying implementa-
tion manual or guide, provides the necessary structure for ensuring that ELLs have equal
access to educational opportunities on the local level. The programs for ELLs that are
based on the policy reflect the mission and vision of the school and the district for all
students, including ELLs.
ELL programs are based on the strengths and needs of the students and community
and on second language/bilingual teaching and learning. While the programs must be
in compliance with all federal and state mandates and accountability requirements,
measures should be taken to minimize any harm ill-informed policies may have on the
students. Programs must also be aligned with court findings regarding equitable educa-
tion for ELLs. To ensure that everyone responsible for the education of ELLs at school
(coaches; administrators; literacy specialists; and general education, bilingual, ESL, and
special education teachers) understands his or her role in educating ELLs, programs for
ELLs must be clearly defined and the policies and procedures ensuring effective imple-
mentation must be outlined. In this era of accountability, districts and schools must have
a valid and reliable means of assessing ELLs, and the policy and implementation guide
must lay out the specifics of that assessment plan with attention to what data are col-
lected, when, by whom, and for what purposes. All policies, procedures, and forms re-
garding the education of ELLs, from placement to proficiency, should be included in the
implementation guide, which is reviewed and revised regularly.
The language policy and implementation guide provide a vehicle for creating a co-
herent vision of ELL education and for the institutionalization of effective programs dis-
trictwide. When every educator who is responsible for the education of ELLs on the local
level shares a common understanding, a common language, and a common practice
committed to equal access to educational opportunities for ELLs, programs improve, in -
struction improves, and ELL performance improves (Field & Menken, 2015 ).

a • •. 8 • • • • • a • a • • • • • • a •• • . • • a • a •• 8 • • • . M II • • • • a •. • •. • a • •

SUMMARY
The United States has a long history of bilingual education, though direct federal in-
volvement in the education of ELLs essentially began with the passage of Title VII Bilin-
gual Education Act of 1968. Over 30 years of federal funding and support for bilingual
education came to an abrupt end with the passage of the No Child Left Behind Act of
2001, which focuses exclusively on English. While bilingual education is still allowed,
NCLB makes it clear that whatever ELL programs districts choose to offer, they must en-
sure that ELLs learn English as quicldy as possible. NCLB's heavy reliance on high -stakes
 Language Pol icy at the Loca l Leve l

testing may indirectly discourage bilingual programs. NCLB has brought increased at-
tention to the linguistic and academic needs of ELLs, but the mandated one-size-fits-all
standards, testing, and accountability requirements are not appropriate for the diverse
ELL population. The Obama administration has acknowledged problems with NCLB
and has promised change, but as of this writing the work on reauthorizing the ESEA in
Congress has yet to begin. National school reform efforts are nonetheless taking place
through the Obama administration's RTTT grants, ESEA Flexibility, and support for
state-led initiatives related to the CCSS Initiative. While these changes may lead to oppor-
tunities for greater flexibility in teaching and assessing ELLs, concerns remain about the
continued focus on accountability through high-stakes testing and new requirements to
evaluate teachers based on student test scores.
Since 2002, state education policies have been driven largely by NCLB and now will
also be greatly influenced by state involvement (or not) in the various consortia con-
nected to the CCSS. Bilingual education remains a viable option in most states, even in
California, Arizona, and Massachusetts, where voter initiatives in the late 1990s and
early 2000s attempted to restrict bilingual programs. The courts play a significant role in
the development of policy for ELLs and have made it clear that language minorities have
the right to teach their children their home language through private language classes,
that schools cannot ignore the linguistic and academic needs of ELLs, that programs for
ELLs must be based on sound educational theory, that ELL programs must be provided
with adequate resources and properly trained teachers, and that programs must be eval-
uated to ensure that they are sufficient in meeting student needs. With a strong under-
standing of history and the limitations of and potential opportunities provided by cur-
rent language and education policies, teachers can effectively work with their districts
and schools to develop their own language policies and procedures to ensure that their
ELL programs comply with all federal and state policies and meet the needs of the stu-
dents and communities they serve.

DISCUSSION QUESTIONS
1. How has federal policy for ELLs changed since 1968? How does Title III of NCLB
compare to the Bilingual Education Act it replaced? In what ways has the Obama ad-
ministration enabled states to work around NCLB, and why do you think the admin-
istration has encouraged this action? Do you feel these have been positive or negative
changes for ELLs? Why?
2. What is the CCSS? How do these "next generation" of standards and assessments dif-
fer from those required under NCLB, and what are the implications for ELLs? Which
consortium does your state belong to, and how has membership in this consortium
led to changes for ELLs?
3. What has been the role of the courts in guiding federal policy for ELLs? What has
case law identified as the main responsibilities of schools in meeting their needs?
Which case set forth a test for determining the adequacy of an ELL program, and
what are the three prongs of this test? What are the shortcomings of this test in ensur-
ing high-quality programs for ELLs?
4. View the clip of Delia Pompa, vice president for education for the National Council of La
Raza and member of the Understanding Language group, discussing policy advance-
ments for ELLs under the Common Core. What does she say about tl1e need for teachers
to be familiar with policy for ELLs? Do you agree? What other reasons might you add?
II 5. Veteran educator Susan Ohanian is one of the leading critics of the Common Core
State Standards. Choose one of her postings about the Common Core on her website.
88 Chapter 4 • Language and Education Po licy for English Langu age Lea rn ers

Summarize her main arguments (or the arguments of the author of the posting) and
share your own opinions. Discuss the implications for ELL students.

RESEARCH ACTIVITIES
1. ELL Student Interview Interview a current or former ELL. Ask questions to deter-
mine the extent to which the student has or has not benefited from the language and
education policies in your state.
2. ELL Teacher Interview Interview a teacher of ELLs. Ask what impact N CLB has had
on his or her classroom and whether the law's focus on standards and high-stakes
testing has been beneficial or harmful to the ELLs. If the teacher is in a state with
RTTT grants or ESEA Flexibility or that is in the PARCC, Smarter Balanced, WIDA/
ASSETTS, or ELPA2 1 consortia, ask what changes have come as a result, how the
teacher feels about the changes, and the impacts so far on the ELLs.
3. ELL Classroom Observation To understand how policy gets translated into practice,
choose one or more of the policies described in this chapter that is applicable to your
state (e.g., NCLB, RTTT, ESEA Flexibility, CCSS, bilingual education requirements
or restrictions). With an understanding of the requirements of the policy, observe a
classroom of ELLs and determine some of the specific ways the policy affects the
classroom structure, teacher instruction, and student learning.
4. Online Research Activity Obtain detailed school achievement and accountability data
for your own school or for a school with which you are familiar. These can typically
be obtained in the form of school report cards available from your state's Department
of Education website. Compare the achievement of ELLs with state, consortia, or fed -
eral expectations, and with other student groups in the school.

RECOMMENDED READING
Ar ias, M. B., & Faltis, C. (Eds.). (201 2). Implementing education al language policy in Arizona: Legal,
historical, and current practices in SEI. Bristol, UK: Multilingual Matters.
This book takes a critical look at Arizona's Proposition 203 and the implementation of its mandated
sheltered English immersion model. Leading experts in the field provide historical, legal, policy, and
pedagogical analyses, revealing the harm of Arizona's policies and the need for changes to better
add ress the needs of ELLs.
Hamayan, E., & Field, R. F. (Eds.). (2012). English language learn ers at school: A guide for administrators
(2nd ed.). Philadelphia: Caslon.
Over 80 questions from teachers and administrators are answered by more than 70 ELL experts,
who provide clear, concise, practical responses that can be applied in schools.
Menken, K., & Garcia, 0. (2010). Negotiating language policies in schools: Educators as policymakers.
New York: Routledge.
Nat ional and state language and education policies are put into practice by classroom teachers who
interp ret, negotiate, resist, and (re)create these policies in different ways, and thus also become pol-
icymakers. This book provides examples from th e United States and countries around the world of
educators negotiating policies within their local contexts.