Abstract

As immigration to the United States has surged over the last half-century, the number of students requiring English as a Second Language (ESL) instruction has risen dramatically, yet access to quality language education remains profoundly unequal. This article analyzes the landmark Supreme Court decisions of Lau v. Nichols (1974) and Plyler v. Doe (1982), which together established a right to English language education for all students, regardless of their ‘legal’ status in the United States. Despite these milestone decisions, the current state of ESL education demonstrates widespread noncompliance with the precedent, including underfunding, teacher shortages, and the absence of a standardized curriculum and expectations. As a result, the high school graduation rate of English learners is 69 percent, which is significantly lower than the national average of 86 percent. This failure to provide ESL instruction to immigrant children undermines the progressive spirit and rulings of Lau and Plyler, perpetuating systemic educational inequities. For students to achieve a meaningful education and have a real chance at social mobility, there must be an increase in federal funding, as well as a set of national guidelines for expectations of ESL education.

I. Introduction

Since the late 1800s, the United States has often been described as a ‘melting pot’ due to its large immigration from diverse nationalities, ethnicities, and races. In the last 50 years, immigration has undergone significant growth, as the share of immigrants as part of the population grew from 4.7 percent in 1970 to 14.3 percent in 2023.¹Migration Policy Institute, “U.S. Immigrant Population and Share over Time, 1850-Present,” https://www.migrationpolicy.org/programs/data-hub/charts/immigrant-population-over-time. A cause of this surge in immigration has been the influx of Latin Americans who have relocated to the United States. To emphasize, in 1960, there were less than a million Latin American immigrants, while in 2010 the number reached almost 19 million.²Marta Tienda and Susana Sanchez, “Latin American Immigration to the United States,” National Library of Congress, July 8, 2013, https://pmc.ncbi.nlm.nih.gov/articles/PMC4638184/. Polls conducted by the Pew Research Center demonstrated that 77 percent of Hispanics believe that, in American society, personal efforts lead to success³Mark Hugo López, Ana Gonzalez Barrera, and Jens Manuel Krogstad,”Latinos are more likely to believe in the American dream, but most say it is hard to achieve,” Pew Research Center, September 11, 2018, https://www.pewresearch.org/short-reads/2018/09/11/latinos-are-more-likely-to-believe-in-the-american-dream-but-most-say-it-is-hard-to-achieve/#:~:text=Hispanics%20are%20significantly%20more%20likely,hard%20for%20people%20like%20them., and seventy-nine percent of newly-arrived Hispanic immigrants believe that their children’s standard of living will be better than their own. Yet, in second and third-generation Hispanics, the view of the United States as a meritocratic society falls significantly. While second and third-generation Hispanics do not completely reject the notion of the American Dream, 74 percent argue that it is especially difficult for Hispanic immigrant families to attain it. The most significant components of the American Dream are financial security and professional success,⁴Ibid. and research has proven that income and career achievements are directly tied to the quality and degree of a person’s education.⁵Social Security Administration, “Research, Statistics & Policy Analysis, Education and Lifetime Earnings,” November 2015, https://www.ssa.gov/policy/docs/research-summaries/education-earnings.html.

For non-English-speaking immigrants to reach their full potential in academic subjects, whether it be science, mathematics, or history, they need to be skilled in English comprehension and writing. The purpose of English as a Second Language (ESL) education is precisely that: to offer non-English-speaking students the opportunity to master the new language and reach their academic potential.⁶Massachusetts Department of Elementary and Secondary Education, “Massachusetts Definition of English as a Second Language (ESL),” February 23, 2024, https://www.doe.mass.edu/ele/esl-toolkit/fundamentals/definition.html. ESL, therefore, is a key component of educational equity, or when all students enjoy equal opportunities to learn by receiving support for their unique needs.⁷Feifei Chen and Rohaya Binti Abdullah, “Teacher Cognition and Practice of Educational Equity in English as a Foreign Language Teaching,” National Library of Medicine, March 3, 2022, https://pmc.ncbi.nlm.nih.gov/articles/PMC8927677/.

Today, over 10 percent of all pre-kindergarten to high school students have been designated by their state to need ESL instruction.⁸Connor P. Williams, “A New Federal Equity Agenda for Dual Language Learners and English Learners,” The Century Foundation, December 8, 2021, https://tcf.org/content/report/new-federal-equity-agenda-dual-language-learners-english-learners/?gad_source=1&gad_campaignid=17051565021&gbraid=0AAAAADl6Qq65vLO9mmvDsInMONiuaY-ri&gclid=Cj0KCQiAq7HIBhDoARIsAOATDxDfyiHxHP4YPyPvlJnlTLm5Ap-JgzwjAA7cNOiZpc0sL-tc4qNN898aAujnEALw_wcB. Even though the Supreme Court cases of Lau v. Nichols (1974) and Plyler v. Doe (1982) ruled that all students, regardless of legal status, have an equal right to education and ESL, this does not represent the reality of immigrant children in the United States (especially those who are undocumented). American school systems must adhere to the precedent of anti-discrimination and English-language-support established in Plyler v. Doe and Lau v. Nichols so that immigrant students can receive a meaningful education and achieve social mobility.

II. Landmark Supreme Court Decisions on English as a Second Language (ESL) Education for Immigrants

IIa. Lau v. Nichols: Public Schools Must Provide Immigrant Students with ESL Education

The milestone decision of Brown v. Board of Education of Topeka (1) in 1954 set the tone for the subsequent rulings of the Supreme Court dealing with equal access and opportunities in education. In the context of the Civil Rights Movement of the 1950s and 60s, this case dismantled school segregation, ruling that students deserved access to the same facilities regardless of their race.⁹Brown v. Board of Education of Topeka (1), 347 US 483 (1954). After the Brown decision, the Civil Rights Movement gained significant traction, and led to more decisions regarding non-discrimination and equal opportunities in education for non-American citizen children. One of such cases was Lau v. Nichols (1974), which centered around how to address the language barriers of non-English-speaking students. During the integration of San Francisco’s school system, 2,856 students of Chinese ancestry entered schools that offered no appropriate language support and taught entirely in English. Lau, alongside other students of Chinese descent, brought a class action lawsuit, contending that the lack of linguistic support was not in compliance with the Fourteenth Amendment’s Equal Protection Clause. In the district court, the case was ruled in favor of the defendant, claiming that such school policies did not violate the Equal Protection Clause or the Civil Rights Act of 1964. After the United States Court of Appeals for the Ninth Circuit affirmed the decision of the lower court, the petitioner requested certiorari from the Supreme Court, which was granted.¹⁰Lau v. Nichols, 414 US 563 (1974).

The question at the heart of the case was: does a school district violate the Fourteenth Amendment and/or the Civil Rights Act of 1964 if it fails to provide non-English speaking students with English language classes? In a unanimous decision, the Supreme Court reversed and remanded the case, holding that the San Francisco public school district’s lack of supplemental English support for non-English-speaking students violated Section 601 of the Civil Rights Act of 1964. Such section “bans discrimination based ‘on the ground of race, color, or national origin,’ in ‘any program or activity receiving Federal financial assistance,’” and San Francisco public schools are recipients of federal financial assistance.¹¹Ibid. In his majority opinion, Justice William Douglas asserts that it would be a “mockery of public education” to expect non-English-speaking students to come into school already possessing the language skills that are necessarily taught at school.¹²Ibid. Justice Douglas holds that without English-language knowledge, these students could not receive a meaningful education, as English comprehension is necessary in all school subjects.¹³Ibid.

IIb: Plyler v. Doe: Fundamental Right to Education Applies to all Students Regardless of their ‘Legal’ Status

Eight years after the Lau case, the Supreme Court heard another case regarding the education of immigrants, now with a particular focus on whether documented and undocumented students are entitled to the same established educational rights. For decades, many families who lack ‘papers’ have taken-on the dangerous journey of crossing the Mexican-American border in hopes that border police will not stop them. Yet, under American law, it is a crime to enter the United States without the necessary legal documents. To address their concern of undocumented students in their schools, the Texas state legislature revised its Education Code (Section 21.031) in 1975. This revision both cut state funds that helped support undocumented children, and permitted school districts to outright deny enrollment to students who could not prove their ‘legal’ status. As a class action lawsuit, a group of Mexican students brought the matter to the District Court for the Eastern District of Texas, who ruled in favor of the petitioners. The lower court cited the Equal Protection Clause of the Fourteenth Amendment to argue that the education of undocumented children was necessary for their social mobility and for the overall health of the national economy. Additionally, the district court did not find that the financial cost of enrollment for these students would significantly burden state districts, as federal and state funding is based on enrollment numbers. Dissatisfied with the decision, the defendants brought the case to the Court of Appeals for the Fifth Circuit, which upheld the decision of the district court, and ultimately requested certiorari from the Supreme Court.¹⁴Plyler v. Doe, 457 US 202 (1982).

The issue, therefore, was whether Texas’ denial of both educational support and even education as a whole to undocumented students violated the Equal Protections Clause of the Fourteenth Amendment. The Supreme Court ruled in favor of the Mexican students, setting a historic assertion of the rights of immigrant children. In his majority opinion, Justice William Joseph Brennan makes significant strides to establish that the right to an education does not discriminate against the legality of the student’s status. To support his argument, the Justice cites the text of the Fourteenth Amendment: that “‘[n]o State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’”¹⁵Ibid. Going against the rhetoric of Texas, the Justice offers a powerful statement: that “even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”¹⁶Ibid. Focusing on precedent, Justice Brennan cites cases to prove that the Due Process Clause of the Fifth Amendment applies to immigrants, arguing that if due process concerns undocumented immigrants, equal protection under the Fourteenth Amendment should also offer legal relief.¹⁷Ibid.

Perhaps in his most notable statement, Justice Brennan describes undocumented students as “innocent;” because these students ‘illegally’ entered the United States does not indicate that they do not possess an inherent right to the “meaningful” education established in Lau v. Nichols.¹⁸Ibid.

III. Discussion: Contemporary Violations of Lau v. Nichols and Plyler v. Doe and a Way Forward

IIIa. Current Barriers to a Quality ESL Education

Almost 25 percent of students speak a language other than English at home, and over 10 percent of students require ESL instruction.¹⁹Supra note 8. This need for ESL instruction and lack thereof is a significant cause of the low high school graduation rate of non-English-proficient students, which is 69 percent, compared to the national average of 86 percent.²⁰Ibid. Although, since the rulings of Lau v. Nichols and Plyler v. Doe in the 1970s and 1980s, the demand for ESL education has increased, it is evident that there is a current failure to provide language support to non-English-speaking immigrant students.

Data has proven that students who require ESL instruction are disproportionately more likely to be in a state of poverty than their American, English-speaking peers.²¹Ibid. Therefore, the families of English Learner students cannot afford to pay for supplemental language support outside of school. It was, then, crucial for Lau v. Nichols to establish that public schools must provide this ESL instruction free-of-charge for these students. Yet, adding ESL support to public schools requires additional funding, and the federal government has been unsuccessful in providing such. In 2002, the federal government passed the first federal funding program for ESL through the No Child Left Behind (NCLB) Act.²²Connor P. Williams, “The Case for Expanding Federal Funding for English Learners,” The Century Foundation, March 31, 2020, https://tcf.org/content/commentary/case-expanding-federal-funding-english-learners/. While Title III of NCLB seemed to be an effort of the federal government to increase funds for English Learner students, these funds ultimately fell dramatically short of making a difference in the education of English Learner students.²³Supra note 8. In 2016, there were over 4.85 million children who needed ESL education, but federal funds granted only $150 per English Learner. It is evident that $150 dollars per EL student is insufficient, as even with 100 EL in a school, there would only be $1,500 in funds, which is not enough to even hire one ESL teacher.²⁴Ibid. Indeed, there is a significant shortage of ESL teachers at schools, and studies have observed that these educators are also often unqualified in the skills needed for bilingual education. This lack of ESL educators stems from the fact that federal funding has remained almost the same even though the EL population has increased from roughly a million since NCLB was enacted in 2002.²⁵Supra note 22.

This lack of resources and funding can be perceived through the stories of three immigrant Chinese students who moved to New York City.²⁶Dequi Zen, “What Is Wrong with ESL Programs in Schools?” Southeast Missouri State University, 2001, https://eric.ed.gov/?id=ED482580. These students participated in ESL classes for four to eight years but were still far from mastering the English language, causing one of the students to be unable to graduate. A significant contributor to why these students–and so many others within the system–were struggling is because ESL classes lack an established curriculum and expectations students must achieve.²⁷Ellen G. Batt, “Teachers’ Perceptions of ELL Education: Potential Solutions to Overcome the Greatest Challenges,” Multicultural Education, Spring 2008, https://eric.ed.gov/?id=EJ793903. Without clear guidelines and often even textbooks and other necessary materials, it is even more difficult for teachers to be successful in helping students.²⁸Ibid.

Ultimately, limited skills in English reading, writing, and comprehension due to a poor ESL education in primary school can hinder students’ success as they pursue a college degree.²⁹Yasuko Kanno and Manka M. Varghese, “Immigrant and Refugee ESL Students’ Challenges to Accessing Four-Year College Education: From Language Policy to Educational Policy,” 2010, Journal of Language, Identity & Education, 9(5), 310–328, https://www.tandfonline.com/doi/full/10.1080/15348458.2010.517693?casa_token=juaxGARzVG4AAAAA%3Auim4JmbsE-ZUs8x38OjSpm1cUAea3Ayy3YgJ3LC5TBJ2VVpYEX7ShC5jWMYff28YqBIZN0F1fzySy24#d1e257. Indeed, a study found that immigrant students came into college facing linguistic challenges in reading and writing, which clearly positions them at a disadvantage for attaining a degree in any field.³⁰Ibid. In addition to language barriers and difficulties, the study also explained how the structure of college admissions is particularly difficult for immigrant students who did not receive a quality ESL education.³¹Ibid. To explain, many top public and private colleges hold an English requirement for three years of college-preparatory English language or literature, meaning that immigrant students could qualify if they take only one year of High School ESL classes.³²Ibid. Nevertheless, because many ESL students do not achieve English mastery upon graduating high school, they often do not even attempt to apply to college: they are plagued by self-doubt and self-consciousness that they would not succeed in an even more rigorous English-speaking academic setting.³³Ibid.

As aforementioned, the combination of Lau v. Nichols and Plyler v. Doe was central in establishing the educational right to English-language support for immigrant students, regardless of their ‘legal’ or ‘illegal’ status in the United States. In the Lau ruling, Justice Douglas asserts that it is the duty of schools to provide students with English skills, as mastery of language is imperative to meaningfully participate in education.³⁴Supra note 10. The consequences of contemporary violations to Lau and Plyler, as discussed in this article, cannot be overstated. Research has proven that a primary-level education with quality teachers and individualized support is absolutely essential in helping low-income children achieve social mobility.³⁵John N. Friedman, “School Is for Social Mobility,” The New York Times, September 1, 2022, https://www.nytimes.com/2022/09/01/opinion/us-school-social-mobility.html. Hence, an inadequate ESL education for an English learner impacts not only the rest of the student’s academic performance, but his chance at pursuing a better life. As a nation that prides itself as a land of opportunity, the United States must ensure ESL education for its non-English speaking immigrant students so that they may have a more real opportunity at the American Dream.

IIIb. A Way Forward for ESL Education: Increased Federal Funding and an Established Curriculum

After evidencing the current violations of the Lau and Plyler rulings and the negative effect for children who lack ESL education, it is clear that a solution that redresses the issue must be implemented. This article puts forth a comprehensive solution for further discussion by policymakers and experts in the field. As discussed above, at the heart of the problem is the lack of school funding for ESL instruction.³⁶Supra note 22. A Senior Fellow for the Century Foundation, Dr. Connor P. Williams is an expert in English Learner immigrant students, and published a piece that scrutinized the historical and political issue of low funding for ESL education. Dr. Williams contends that lack of resources is a critical contributor to current ESL failure, such that policymakers must prioritize the increase of federal funding and education oversight for English Learners. With Dr. Williams’ findings in mind, part of this article’s proposed solution includes a significant increase in federal funding to subsidize ESL education in all states. The amount of funding received by each state should be consistent with the number of English learners enrolled in their public education system. To determine the number of funds that need to be allocated for each student, experts in accounting and government policy must be consulted. This funding would be employed for the salary and training of ESL teachers, as well as for purchasing relevant materials, especially textbooks.

To complement funding, the federal government must also establish a fixed ESL curriculum for content, evaluations, and teaching methods. To bring about this plan for ESL instruction, experts in education, especially in bilingual teaching, must be brought into this policy proposal. An Associate Professor at The College of Idaho, Ellen G. Batt performed research into the issues with ESL instruction to offer tailored solutions.³⁷Supra note 27. Her findings support this article’s proposal that the ESL curriculum must be revised to establish more ambitious expectations for students and more clearly-defined methods for teachers to teach language.³⁸Ibid. The professor also emphasizes that it is salient for there to be more professional development for ESL teachers.³⁹Ibid. Such a training would review how to address the particular needs of ESL students and explain how ESL classes and curriculum should be conducted.

IV. Conclusion

Fifty-one years ago, the Supreme Court decided Lau v. Nichols, in which it asserted that language proficiency is central to all academic courses and that public schools ought to provide English language support to non-English-speaking students.⁴⁰Supra note 10. Eight years later, the Court handed down the milestone decision of Plyler v. Doe, ruling that there is no distinction between American and undocumented immigrant students in their right to education under the Equal Protections Clause of the Fourteenth Amendment.⁴¹Supra note 14. Even though these rulings are considered landmark decisions in favor of immigrant rights, they undoubtedly do not represent the educational reality of undocumented children in the United States. The lack of sufficient federal funding, resources, and ESL educators is a significant contributor to the low graduation rates of English learner students. To respect the progressive rulings of Lau v. Nichols and Pyler v. Doe, there must be an increase in federal funding, as well as more clearly established guidelines and training for how to conduct ESL classes. These changes to ESL education are imperative for immigrant students to master English and, subsequently, be able to achieve their education potential. Only by fully and meaningfully participating in all school subjects (without language hindrance) may these immigrant children have a real chance at social mobility.⁴²John N. Friedman, “School Is for Social Mobility,” The New York Times, September 1, 2022, https://www.nytimes.com/2022/09/01/opinion/us-school-social-mobility.html.

This paper recognizes that it is difficult for the government to propose and approve any type of spending, and that education is a contested topic of federal and state power, so it may be difficult for states to accept new guidelines regarding ESL instruction. Therefore, a way forward in bettering ESL education requires the advice and assistance of lawyers and experts in politics and lobbying.

Edited by Annie Cayer and Emma Morgan

About the Author

Notes from the Author