Fifty years ago, the U.S. Supreme Court issued a decision that some considered the Brown v. Board of Education for students whose native language is not English.
In its 1974 ruling in Lau v. Nichols, the court held that the failure of the San Francisco school system to effectively educate some 1,800 Chinese-speaking students denied them “a meaningful opportunity” to participate in school.
Like the 1954 Brown decision striking down racial segregation in schools, Lau addressed educational inequities faced by a disadvantaged minority population. Like Brown, the justices spoke without dissent (though there were some minor differences over the case issued in concurring opinions).
The Lau decision was hailed by advocates for immigrant and native-born language-minority students and it resulted in slow but genuine improvements in the classroom for not only the Asian-American community but also the much larger Latino student population in the United States.
However, there were limitations to the scope and impact of the Lau decision. Unlike Brown, which relied on the 14th Amendment’s guarantee of equal protection of the laws, Lau was decided on the basis of Title VI of the Civil Rights Act of 1974, which bars discrimination on the basis of race, color, or national origin in federally funded programs. That made it more difficult to enforce.
And in contrast to Brown’s long gestation at the court over three years, Lau was decided relatively quickly—barely more than a month after oral arguments and without the attention surrounding most potentially landmark cases.
“It was just never as visible as Brown,” said Rachel F. Moran, a professor at Texas A&M University’s law school in Fort Worth, a scholar of the case.
The day after the decision, Lau was mentioned on the front page of The New York Times, but only secondarily in a story about another education ruling, also from Jan. 21, that invalidated school district policies requiring pregnant teachers to take leave well before it was medically necessary.
“The legacy of Lau is that it did have some symbolic value, even though the court never clearly stated that English learners had a right to education in their home language,” said Rosemary C. Salomone, a law professor at St. John’s University in New York City who has written widely on the case.
“Lau became a beacon of hope for English-language learners as a symbol of this notion of a ‘meaningful education,’” she said. “But it never fully delivered on that promise.”
A mother’s meeting leads to a lawsuit over her son’s schooling
The San Francisco case began in the late 1960s, when a community activist named Ling-Chi Wang tried to organize the city’s Chinese community to press for improvements in schooling for their children, who were mostly immersed in English-only instruction.
One of those parents, Kam Wai Lau, went to the Chinatown/North Beach office of the San Francisco Legal Assistance Foundation in 1970 to seek aid over a wage dispute. She met a newly minted lawyer named Edward Steinman, who was working at the legal aid office on a fellowship and seeking test cases to help improve people’s lives.
Steinman learned that Lau’s son, a 1st grader at Jean Parker Elementary School in Chinatown, was struggling with instruction because it was all in English. The boy, Kinney Kinmon Lau, had emigrated from Hong Kong at the age of 5 and spoke little English.
“Every one of my clients needed an interpreter,” Steinman, 79, said in an interview with Education Week. “It didn’t take long for a light bulb to go off that I had a case here.”
Steinman sued on behalf of Lau and a class of Chinese-speaking students under Title VI and the equal-protection clause. Both a federal district court and the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled against them on both claims.
Steinman believed he had a strong argument that would help his appeal to the Supreme Court. In 1970, the Department of Health, Education, and Welfare (HEW) issued guidance to school districts that Title VI’s anti-discrimination mandate applied to students whose dominant language was not English.
Under the guidance, federally funded schools had to “take affirmative steps to rectify the language deficiency to open instructional programs to these students.”
Steinman believed the high court would recognize the importance of the federal interpretation of Title VI in a way that the lower courts had not. There was another factor in his mind. In March 1973, the high court decided, in San Antonio Independent School District v. Rodriguez, that there was no federal constitutional right to an education.
That decision did not bode well for reviving the San Francisco students’ equal-protection claim. But Steinman believes the justices were a bit alarmed by negative public reaction to their sweeping decision in Rodriguez.
“And then this little case comes along,” he said, referring to the San Francisco students’ case.
The Supreme Court granted a review of the Chinese students’ case.
Students and the Nixon administration take on the San Francisco school system
Oral argument was on Dec. 10, 1973. None of the families involved in the suit could afford to travel to Washington, Steinman said. He stressed in his argument that the school system was perpetuating their inability to speak English.
“Our goal is that we want these students to be taught English and to understand English, so they can have the type of mastered English which our society requires,” Steinman said. “The problem now is that they are being taught in a language they do not understand.”
He said that the plaintiffs were not demanding any particular remedy, which would give the school system the leeway to act on its own expertise to develop one if the court ruled for the students.
President Richard M. Nixon’s administration supported the students, with J. Stanley Pottinger, an assistant U.S. attorney general, emphasizing Title VI of the Civil Rights Act.
“In interpreting both the basic protections of Title VI and the regulations, HEW has indeed gone further,” said Pottinger, who as civil rights chief at HEW had written the 1970 guidance. “It has construed the meaning of Title VI in a national origin discrimination memorandum relevant to this case by stating that where inability to speak and understand the English language excludes national origin minority group children from the effective participation in the educational program offered by the school district, the school district must take affirmative steps to rectify the language deficiency.”
The San Francisco school district, in its merits brief before the Supreme Court, said that merely because free public education was a service provided by the state did not mean that the children of Chinese descent could “compel the state to provide them with special instruction to remedy their own personal problems.”
At oral argument, Thomas M. O’Connor, the city attorney of San Francisco, sought to portray the district as doing the best it could with available resources to provide language instruction to its growing number of Chinese-, Japanese- and Spanish-speaking students.
“Under the equal-protection clause, … the school district [does not have] the constitutional duty to provide such instruction,” he said. “San Francisco would attempt to cover all if it had the resources with which to do it, that is the inclination of the board of education. However, they have not moved up on the complete coverage of all these children because of the other requirements of the budget.”
O’Connor also argued that Title VI and the HEW regulations did not impose a duty on the school district to provide additional instruction.
“No Chinese-speaking child is discriminated against in any of these courses,” he said. “He has the same education as others. He may not be able to benefit by it as much, but it is not up to the HEW to determine what effect this has.”
Behind the scenes, some quick agreement by the justices, but concerns about going too far
The justices met to discuss the case in their private conference on Dec. 12, 1973, and all evidence suggests they quickly coalesced in favor of the students on the basis of Title VI, not the equal-protection clause.
Chief Justice Warren E. Burger assigned the opinion to Justice William O. Douglas, who was appointed to the court by President Franklin D. Roosevelt in 1934 and would retire from the bench in 1975.
Based on the Lau case files of Douglas and Justice Harry A. Blackmun at the Library of Congress, Douglas circulated a draft opinion to his colleagues by Christmas. The opinion focused on Title VI, but the draft included a discussion of the equal protection issue. That gave some of his colleagues pause.
“My notes indicate that the consensus was to decide this case on the basis of the statute rather than on constitutional grounds,” Blackmun wrote in a memo to Douglas on Dec. 26. “Perhaps I am mistaken. I remain reluctant to pursue the equal protection route here and shall defer my vote pending expressions from the others.”
After Douglas circulated another draft, Burger wrote him a similar missive on Jan. 2, 1974, saying, “I will be unable to join any disposition that goes beyond the statute.”
Justice Byron R. White wrote to Douglas the same day, saying, “The equal protection thesis still shows through … too much for me to join.”
Justice Lewis F. Powell wrote to Douglas on Jan. 9, saying he expected to sign on to the opinion, but he was worried about a reference in the draft opinion to Brown v. Board of Education that might lead to other groups of students suing their school districts on equal protection grounds.
“I know from my own 11 years service on a school board that it is impossible to make available to all students at the same time all improvements, advanced techniques, and specific educational opportunities,” said Powell, who had served on the Richmond, Va., school board and later the Virginia state board of education.
Douglas agreed to eliminate the reference to Brown and his discussions of the equal protection clause. He soon had the votes of Powell as well as Justices William J. Brennan Jr., Thurgood Marshall, and William H. Rehnquist. That was enough to give Douglas’s opinion the weight of speaking for a majority of the court.
Douglas’s majority opinion was a mere six pages in print. He referred to a provision of California’s education code that requires students to meet proficiency in English to graduate from high school, as well as the state code’s compulsory requirement to attend school.
“Under these state-imposed standards there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education,” Douglas wrote.
“Basic English skills are at the very core of what these public schools teach. Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired those basic skills is to make a mockery of public education,” Douglas continued. “We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful.”
Douglas couched the opinion in Title VI and the HEW guidance.
“It seems obvious that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from [the San Francisco] school system which denies them a meaningful opportunity to participate in the educational program—all earmarks of the discrimination banned by the regulations,” Douglas said.
The court reversed the 9th Circuit’s judgment and sent the case back to the lower courts “for the fashioning of appropriate relief.”
The other four justices all concurred with the outcome, but they did not join the majority opinion, despite Douglas having eliminated most discussion of the equal-protection clause. Justice Potter Stewart wrote an opinion concurring in the judgment, joined by Burger and Blackmun, while Blackmun wrote his own concurrence joined by Burger. White joined in the outcome without signing any opinion.
A slow but eventually significant impact
The decision was a significant victory for the students, but when it was released Jan. 21, 1974, some in the Chinese community in San Francisco misinterpreted it, Steinman said, with some believing it would lead to desegregation-type busing.
The case was sent back to the same federal district judge in San Francisco who had thrown out the case for the development of a remedial plan. Steinman said the judge remained hostile to the student’s case and dragged his heels, as did the school system.
But by the fall of 1975, there was a consent decree approving a plan developed by a citizens’ task force. The plan included bilingual education and other approaches not just for native Chinese and Spanish speakers, but for other language minorities in the system, including students of Japanese, Korean, and Filipino descent.
Kinney Kinmon Lau did not directly benefit from those programs. But in a 1984 interview with Education Week, he said he eventually learned English, partly from watching TV.
“The shows on TV are more or less how the society speaks,” he said in that interview.
Lau changed his first name to Kenny, and later to Ken, and eventually graduated from San Francisco City College with a degree in computer programming. In a 2002 interview with The Boston Globe, he seemed ambivalent about his role in the case and about the strategies used to teach students English.
“I don’t know if bilingual education is better—I’m still trying to work it out,” he told the Globe.
Throughout the nation, the Lau decision did help promote bilingual education for English learners.
HEW developed what became known as the “Lau remedies,” detailed guidelines to help districts comply with the decision. But the guidelines remained informal and they were challenged on administrative law grounds by school districts in Alaska. HEW agreed to withdraw the guidelines and develop a formal regulation, subject to public comment.
By this time, it was late in President Jimmy Carter’s tenure and the new U.S. Department of Education, established by Congress in 1979, held contentious hearings that began to show the seeds of a backlash movement against bilingual education. The Lau-inspired regulation was never finalized before Carter left office, and President Ronald Reagan’s administration quickly backtracked when he took office in 1981.
Earlier, Congress in 1974 had passed the Equal Educational Opportunities Act, a measure motivated by a desire to rein in court-ordered busing but which included a provision that codified Lau in part by requiring states “to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.”
“The Equal Educational Opportunities Act held out the prospect that students who were deprived of help had the right to sue,” said Moran, of Texas A&M University law school.
Some federal appeals court and Supreme Court decisions since the 1980s have made it more difficult to sue for compensatory relief or disparate-impact discrimination under Title VI. And the high court has issued only one decision directly stemming from Lau and the EEOA.
Salomone said Lau has been “iconic for the idea that all children are entitled to a meaningful education. If they don’t understand what’s going on in the classroom, they are being excluded. I believe that’s very powerful.”