From Law to Policy and Practice: Lessons Learned From a Policy Discriminating Against English Learners

Title VI of the Civil Rights Act of 1964

Title VI of the Civil Rights Act of 1964 is one of the first federal policies to provide protections for ELs in K-12 public schools. The law expressly prohibits discrimination based on race, color, or national origin (Lhamon & Gupta, 2015; U.S. Department of Education [USDOE], n.d.; U.S. Department of Justice [DOJ], 2015). Specifically, public elementary and secondary schools, and even public higher education institutions, receiving federal financial assistance cannot discriminate against any individuals based on the aforementioned criteria. In addition, public schools and higher education institutions receiving federal financial assistance are prohibited from denying ELs equal access to education because of limited English proficiency (USDOE, n.d.).

The Civil Rights Division at the DOJ and the Office of Civil Rights (OCR) at the USDOE are equally responsible for monitoring and enforcing Title VI by ensuring that State Education Agencies (SEAs) and school districts are following the necessary requirements (Lhamon & Gupta, 2015). The main requirement of Title VI is SEAs and school districts focus on “addressing any language barriers so that English language learners may participate meaningfully in school’s educational programs” (Lhamon & Gupta, 2015, p. 1). This prevents ELs from being excluded from educational programs even though their English proficiency may be limited.

Title VI presents school leaders with ambiguous policy decisions resulting in shortcomings in terms of implementation. On one hand, schools were required to address language barriers for ELs as part of the requirements of Title VI with little to no guidance until 2015 when the USDOE issued a Dear Colleague Letter outlining how schools can meet their legal obligations to ELs under Title VI and the EEOA (Lhamon & Gupta, 2015). However, on the other hand, it is difficult for school leaders to ensure language barriers are being addressed effectively when many ELs do not have access to necessary specialized instruction (Lindahl, 2015). Furthermore, research has consistently shown that teachers are ill-prepared to serve ELs within their classrooms, due to the fact that they lack the training necessary to modify instruction and assessments (Ajayi, 2005; Calderón, Slavin, & Sánchez, 2011; Hansen-Thomas, Grosso Richins, Kakkar, & Okeyo, 2016; Lucas, Villegas, & Freedson-Gonzalez, 2008; Schulz, 2009; Walker, Shafer, & Iiams, 2004).

The SDOL reiterated on numerous occasions throughout the duration of the lawsuit that they believed that ELs at Phoenix Academy were receiving the appropriate instruction for them to be able to meaningfully participate—and graduate on time—as lawfully required. Furthermore, district spokeswoman Burkholder added that all of the SDOL’s secondary schools provide the same type of English language instruction; essentially, she was stating that Phoenix Academy’s program for ELs was not different from the instruction provided for ELs at McCaskey High School (Newhouse, 2016a). SDOL fixated on the fact that they needed these older, uncredited EL students to graduate prior to the age of 21 years when they would no longer be eligible to attend high school in the state of Pennsylvania (24 Pa. Stat. § 13-1301); therefore, they presumed they were meeting their obligations under Title VI as long as these students graduated high school, rather than analyzing the law at a deeper level and understanding its true intent.

The District Court did not end up addressing the plaintiffs’ Title VI claims given that they concluded that the “relief granted on the EEOA and state law claims was ‘sufficient to resolve’ the preliminary-injunction motion” (Issa v. Sch. Dist. of Lancaster, 2017, p. 14). So, although Title VI is relevant to the lawsuit involving the SDOL, violations of the EEOA provided more substantive claims for the six plaintiffs and allowed them to prevail in their lawsuit against SDOL.

The EEOA of 1974

The EEOA of 1974 is a core federal law in providing protections for ELLs in K-12 public schools. The EEOA (1974), specifically, “prohibits states from denying equal educational opportunity to an individual on account of his or her race, color, sex, or national origin.” The EEOA (1974) also expressly mandates that this denial of an equal educational opportunity may not result simply from “the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” Furthermore, the EEOA requires schools to adopt a program to support ELs in English language acquisition (DOJ, 2015).

The EEOA, like Title VI, presents school leaders with vague policy language leading to misinterpretation and inappropriate implementation. At issue, specifically, is the term appropriate action. Under the EEOA, schools are mandated to take appropriate action to ensure that ELs’ language barriers are addressed in a way that permits them to participate equally in school instruction. However, the EEOA does not clearly define the meaning of “appropriate action,” and thus, school leaders are tasked with interpreting how to implement this provision appropriately with little guidance. School leaders may interpret this provision in vastly different ways in terms of creating programming that they find to be an “appropriate action” in terms of addressing language barriers for ELs, but may unfortunately fall short of the EEOA’s policy intentions.

The SDOL may not have been privy to the test courts use in determining whether the “appropriate action” clause has been met. In the Issa case, the Third Circuit Court of Appeals applied a four-part test to establish whether a violation of §1703 of the EEOA occurred. The four-part test includes the following elements: (1) The defendant must be an educational agency; (2) the plaintiff must face language barriers impeding her equal participation in the defendant’s instructional programs; (3) the defendant must have failed to take “appropriate action” to overcome those barriers; and (4) the plaintiff must have been denied equal educational opportunity on account of her race, color, sex, or national origin (Issa v. Sch. Dist. of Lancaster, 2017). The court held that the first, second, and fourth prongs were satisfied; however, another test had to be applied to determine whether the third prong (“appropriate action”) was satisfied to conclude that a violation of the EEOA had in fact occurred. The court used the Castañeda v. Pickard (1981) three-prong test to determine whether in fact “appropriate action” had been taken to help the plaintiffs in this case overcome language barriers. The three prongs require that the actions be (1) based on sound educational theory, (2) implemented effectively with sufficient resources and personnel, and (3) evaluated regularly to determine whether they are effective in helping students overcome language barriers (Castañeda v. Pickard, 5th Cir. 1981). In this case, the court concluded that the accelerated, nonsheltered instructional program offered at Phoenix Academy failed to satisfy the first and third prongs of the Castañeda test. To say it another way, the court determined that the instructional programming offered at Phoenix Academy was not based on sound educational theory and that it was not regularly evaluated to establish efficacy (Issa v. Sch. Dist. of Lancaster, 2017). Furthermore, given that the Castañeda test is conjunctive and the first and third prongs were satisfied, the court stated that they did not need to address the second prong.

In sum, the SDOL presumed that they were abiding by federal law in meeting their obligations to ELs by ensuring that they graduate prior to the age of 21 years, regardless of the students’ actual academic success. They implemented programming for ELs at Phoenix Academy, which they felt was appropriate given their interpretations of Title VI and the EEOA. However, they fell critically short in understanding and meeting the ambiguous requirements of the law. Given other recent cases involving similar issues, it is clear that many school leaders may be struggling with the same interpretation and implementation issues related to Title VI and the EEOA (see Methelus v. Sch. Bd. Of Collier Cnty., 2017; New York v. Utica City Sch. Dist., 2016). The SDOL’s misinterpretation of the requirements of Title VI and EEOA led to the 9-month legal battle that ended in the Third Circuit Court of Appeals creating precedential authority for states within the third circuit—and offering much needed persuasive authority for other circuit courts across the country on this timely issue of ensuring ELs receive what they are legally entitled to under federal law.

Legal Literacy for Policy Development

As this case illustrates, the ambiguities of federal laws and policies and school leaders’ misinterpretation of law and policy may lead to the development and passage of district and school policies that will not stand up to scrutiny and litigation. In evaluating the SDOL’s viewpoint against the court’s reasoning and the Castañeda Test, it is apparent that the SDOL may not have understood that the program they were offering ELs at Phoenix Academy was not based on sound educational theory. Furthermore, in relation to the third prong of the Castañeda test, the SDOL may not have known that they were obligated to regularly evaluate the English language programming at Phoenix Academy separately from McCaskey High School to determine its effectiveness in helping ELs achieve English language proficiency.

The SDOL’s policy of sending all new-to-the-district students older than the age of 17 years with limited credits to Phoenix Academy did not follow the requirements of federal law because it did not consider or address the unique needs of ELs. If more guidance at the federal level had been available, it is possible that the SDOL may not have found themselves at the center of a federal lawsuit. Moreover, if “appropriate action” had been defined in the EEOA in the first place, school leaders may have potentially understood the serious implications of their failure to meet the specifics of this legal obligation.

Furthermore, if educators had greater legal literacy, they would be better equipped to interpret federal law. As Decker (2014) noted, “educators with legal knowledge are needed to prevent districts from bearing the many costs of legal illiteracy, including, but not limited to, litigation” (p. 1). Decker and other scholars have argued that ensuring school administrators and teachers understand how the law affects their practice is critical because they must not only follow the law, but also make and interpret it as policy makers (Bull & McCarthy, 1995; Decker, 2014). When school administrators and teachers do not understand the law and how it affects their practice, they risk costly and time-consuming litigation.

Although education law scholars likely value the legal literacy of K-12 school administrators and teachers, few studies have been conducted that assess the legal literacy of K-12 school teachers and administrators. However, of the studies that do exist, we know that most teachers and school leaders are uniformed or misinformed about school law. In a study of 1,317 teachers in 17 states across the United States, Schimmel and Militello (2007) found that (a) more than 70% of teachers have taken no school law course; (b) a majority of teachers are uniformed or misinformed about important issues concerning student and teacher rights; (c) more than half of teachers surveyed listed other teachers as a moderate or substantial source of school law; (d) more than 65% of teachers are interested in learning more about school law; and (e) more than half of the teachers said their behavior would be different if they knew more about school law.

In a study of 493 principals from all states, except Vermont, Militello, Schimmel, and Eberwein (2009) found that principals, often misinformed or uninformed themselves, are giving a mixture of accurate, inaccurate, and ambiguous advice to their teachers about how to comply with the law. Similar to the study involving the teachers, school leaders not only want more information about the rights and responsibilities of teachers and students, but also said they need to have more information and would change their behavior in light of more information (Militello et al., 2009). A central call-to-action from the study by Militello and his colleagues (2009) is that school leaders “should become conscious, informed, and effective school law teachers of the staff” (p. 42).

School leaders need not only to be informed of the law to comply with directives and to practice preventive law, but also to understand legal reasoning. In combination, compliance with directives, preventive law, and legal reasoning provides school leaders with a legal perspective (Bull & McCarthy, 1995). Approaching the law with a legal perspective allows school leaders to make more informed and better decisions. As Bull and McCarthy (1995) noted, a legal perspective includes understanding the legal mandates and the process of the law, such as “how mandates are developed, interpreted, and applied” (p. 616). A legal perspective also includes an understanding of why we have laws and what values guide the development of laws, such as the values of equity, fairness, and individual liberty, which undergird the U.S. Constitution and civil rights legislation (Bull & McCarthy, 1995). By having a broader legal perspective, school leaders gain more insight into the legal implications of interactions among school leaders, teachers, and students. Having a broader legal perspective also allows for both fidelity when applying the law and the consideration of the needs of teachers and students.

When analyzing the situation in the SDOL, it is clear that the district may have had issues in understanding their federal obligations under Title VI and EEOA, therefore contributing to a violation of these laws. First, the brevity and ambiguity of Title VI’s language leaves room for inappropriate interpretations of the law. The law states that schools must address language barriers to ensure that ELs can meaningfully participate in schools’ programs; however, school leaders have the considerable burden of interpreting and subsequently applying what “addressing language barriers” and “meaningfully participate” truly mean in implementation. Similarly, the fact that the EEOA does not define “appropriate action” leaves the precarious interpretation up to schools. The SDOL erroneously thought that they were meeting their obligations by implementing a school policy that sends all students older than 17 and undercredited, including ELs, to Phoenix Academy to allow them to graduate on time. The SDOL considered that graduating these ELs before the age of 21 years, among other students, was more important than sending them to McCaskey High School, which offered more supports for ELs, including SLIFE.

Had SDOL leaders employed a legal perspective, they would have been conscious of both adhering to the law and the needs of their students. Utilizing this perspective can also contribute to the success of school leaders as policy makers. There is little research on school leaders as policy makers, but scholars have noted that as educational standards and attempts to improve opportunities for all students increase, school leaders must deal with multiple, and sometimes contradictory, policy demands (Ball, Maguire, Braun, Hoskins, & Perryman, 2012). School leaders also must contend with the hierarchical structure of policy to practice (i.e., governments passing policies for implementation in schools) and the tension between policy and practice. One reason tension arises between policy and practice is because of inadequate knowledge (Cohen, Moffitt, & Goldin, 2007). For example, evidence at the level of implementation (e.g., the classroom) may contradict policy and vice versa. Furthermore, policies rarely tell a school leader exactly what to do—rather they narrow the range of responses and school leaders must make sense of and mediate policies directed from the federal government, state governments, and school districts (Ball et al., 2012). In addition, research has shown that the ambiguity and abstract language presented in many policy messages influences school leaders’ grasp of those policy messages—sometimes affording school leaders only a surface level understanding of their obligations (Spillane, Reiser, & Reimer, 2002). Finally, some policies are ambiguous on purpose; for example, because the contexts in which the policy will be applied vary or because the policy maker imagines a hypothetical scenario that cannot be specified in much detail (Cohen et al., 2007).

In sum, school leaders are responsible for mediating and constructing policy. In the case of implementing the law, having the greatest amount of knowledge about the law and classroom practices will assist school leaders in the mediation and design of policies as well as make them effective school law teachers to their staff.