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Rights versus Reality: The Gap between Civil Rights and English Learners’ High School Educational Opportunities

by Dafney Blanca Dabach & Rebecca M. Callahan - October 07, 2011

Nearly forty years after a landmark Supreme Court decision (Lau v. Nichols) and thirty years after a Fifth Circuit Court of Appeals case (Castañeda v. Pickard) concerning the educational rights of English learners (ELs), the authors argue that the essence of these rulings have yet to be systematically realized. Drawing on evidence from their research, the authors highlight the gaps between ideals and realities that secondary language minority youth face in securing educational opportunities. The authors also raise questions about theory, implementation, and evaluation in EL programs and students’ rights to a full academic curriculum.

In his recent Brown Lecture published in the Educational Researcher, Hakuta (2011) discussed two landmark cases that defined English learners (ELs)1 educational rights: Lau v. Nichols (1974) and Castañeda v. Pickard (1981). With Lau, no longer did the same instruction in mainstream courses comprise equal educational access; Lau meant that schools had an obligation to address ELs language barriers. Castañeda established three standards that gave greater definition to Lau in Office of Civil Rights reviews, directing EL programs to be: based on sound educational theory, appropriately implemented, and evaluated as effective for English language instruction and access to academic subjects (Ovando & Collier, 1998). Although some (e.g., Gándara, Moran, & García, 2004) have noted the erosion and instability of rights, one key aspect remains: instructional modifications are necessary for ELs if they are to have meaningful access to a full curriculum.

In this essay we examine the gap between the ideals represented in these cases and the realities confronting secondary EL students. Building on Hakutas (2011) observations and our prior independent research, we raise questions about the theory, implementation, and evaluation of EL programs. We argue that all too often, the promise of equitable educational access under Lau and Castañeda remains unfulfilled, in spite of the existence of programs intended to serve EL students.

Despite Rights, ELs Diminished Opportunities to Learn

Whether analyzing detailed classroom fieldnotes or course-taking patterns from nationally representative databases, we find ample evidence of disparities in both opportunity and achievement between EL students and their non-EL peers. Differences exist in mathematics and reading performance in elementary school by EL status, increase by middle school (Goldenberg, 2008), and prove untenable by high school, with only 18% of ELs completing a comprehensive measure of basic high school graduation requirements, compared to 44% of language minorities not enrolled in ESL, and 46% of native English speakers (Callahan & Shifrer, in press). Certainly, these statistics also reflect the predominance of long-term ELs (LTELs) in high schoolthose who, after 6-plus years in U.S. schools, have not met the linguistic and/or academic criteria required to exit the EL category. In examining school structures and programs intended to provide content area access for secondary EL students, we have both documented diminished opportunities to learn (Callahan, 2005; Callahan, Wilkinson, & Muller, 2010; Dabach, 2011b; Dabach, 2009). However, our experiences working with educators and schools lead us not to argue that this is deliberate, but rather that there are unintended consequences to the programs intended to serve EL students.

The most common linguistic support service, especially at the secondary level, is English as a second language (ESL) coursework , although many secondary ELs also receive sheltered content area instruction: subject-area classes delivered primarily in English but designed for those still acquiring the language (Echevarría, Vogt, & Short, 2004). Callahans work with colleagues underscores the Catch-22 of these placements by analyzing the course-taking patterns of two groups of language minority students matched on English proficiency and other characteristicsthose in EL placements, and those not. Although linguistic support services were intended to expand educational opportunity, placement in ESL during high school resulted in decreased access to higher-level math and science course-taking for all but the most recent arrivals with the lowest levels of English proficiency (Callahan et al., 2010). Moreover, Callahan (2005) found ELs academic placement to be more predictive of grades and test scores than students English proficiency. These analyses suggest the need to understand how programs designed to support EL students may actually impede access to educational opportunities.

Dabach (2009, 2011a, 2011b) further examined these processes in seven California comprehensive high schools by following 20 subject-area teachers who taught matching pairs of EL and general education courses in social studies, mathematics, and science. Dabach found interlocking elements compromising EL students educational opportunities. First, new teachers were more likely to be assigned EL placements than their senior colleagues. This jeopardized students access to rigorous instruction because novice teachers are typically not as effective as their more experienced counterparts (Clotfleter, Ladd, & Vigdor, 2005; Darling-Hammond, 1995, 2000). Second, a gap existed between teachers qualifications on paper and their ability to teach ELs academic content. Third, teacher accounts of students experience revealed EL-content courses to be spaces where youth had to negotiate the sheltered stigma. EL students, especially LTELs, associated these classes with stupidity and a lack of cognitive ability, when in theory they were supposed to enhance EL students opportunities to learn. Most striking were the connections across levels of analysis; students are likely to feel stupid in spaces where they are vulnerable to less effective instruction.

Clotfelter et al. (2005) argue that creating separate courses is not necessarily the problem; resources may be targeted to groups of students who must make rapid progress. Goldenbergs (2008) review reports small effects in favor of separate EL programs in kindergarten; however, our work investigates separation within the high school context, where tracking and stratification persist. While quality secondary educational programs and instruction exist (e.g., Jaffe-Walker & Lee, 2011), evidence suggests they are far too rare.

Together our findings complicate the notion that EL secondary content programs, as currently implemented, are necessarily beneficial for the increasingly heterogeneous EL student populationmany of whom are US-born and may have little in common with their recent immigrant peers. While some may read our findings as evidence for eliminating those EL supports called for under civil rights law, we advocate for effective instructional access through pedagogy, meaningful evaluation, and content area development. Our work and that of Olsen (2010), exploring the magnitude and prevalence of LTELs, provides evidence that something is clearly not working for many students trapped in a label with insufficient supports for re-classification out of EL status.

A tension exists in realizing the important civil rights victories embedded in Lau and Castañeda between the recognition of students genuine need for supports to overcome language barriers on the one hand and evidence that these supports may inadvertently reflect larger patterns of social inequality on the other. Our research, as well as prior studies, illustrates how EL programs may be marginalized (Olsen, 1997), consistently subtractive (Menken & Kleyn, 2010), and may block access to advanced study (Callahan et al., 2008, 2009, 2010). Some programs may comply on paper (i.e., by creating specialized courses), although arguably, not in practice. While measures exist to avoid such scenarios, the distance between district compliance procedures and the ability to rectify harm through the Office of Civil Rights (OCR) remains great (Gándara et al., 2004; Pollack, 2008). While repudiating any return to the pre-Lau era of sink-or-swim practices which ignored ELs dual charge of learning English and academic content, we hope to draw attention to some of the challenges in transforming legally-driven policy to pedagogically-sound practice in local contexts.

Along with Hakuta (2011), we argue that if EL programs are not effective, their guiding assumptions and processes must be revisited. We take this opportunity to expand on Castañedas three-pronged approach: theory, implementation, and evaluation:


Theory. Some programs (e.g., English submersion) are not based on language acquisition theory at all, but rather are politically motivated (Gándara & Orfield, 2010; Hakuta, 2011). In others, theory proves to be fossilized sound bites (e.g., BICS/CALP, i + 1)2 from an earlier era, rather than current research. Regardless, every theory has different pedagogical implications. If we consider more recent approachesparticularly, language ecology (i.e., van Lier, 2004)educators may be tasked with the creation of environments rich in learning affordances (e.g., Walqui & van Lier, 2010).3 Additionally, there should be opportunities for theory building beyond second language acquisition; such theory would account for language and content learning, teacher learning and enactment, and organizational context.


Program Implementation. We identify four critical issues of implementation: teacher capacity, leadership and organizational dynamics, accountability pressures, and sociocultural positioning. First, although subject-area teachers are increasingly certified to teach EL students, disparities in teacher capacity remain (Dabach, 2009). Model teacher education programs exist, although remain relatively rare (Lucas, 2011), while Little and Bartlett (2010) also note that professional qualifications alone are not a proxy for effectiveness. Second, leadership may contribute to systems of support (Elfers et al., 2009) on the one hand, or impediments for teachers. Dabach (2009) describes the clash between teachers who generated innovations in serving LTELs in mainstream classes, and district leaders who disbanded such efforts, perceived to run counter to the districts EL plan. Leaderships interaction with organizational contexts matters too, particularly in high schools where departmental cultures shape implementation efforts (Siskin, 1997). Third, accountability pressures may limit ELs access to content with the narrowing of curriculum that occurs with a targeted focus on tested subjects (English and mathematics), rather than the full curriculum (Olsen, 2010; Pollack, 2008). Finally, the status of most ELs as immigrant-origin, language minority students of color, means that EL programs face political opposition to educating other peoples children (Delpit, 1995), who may be perceived as a threat to the fabric of American society (Huntington, 2004). This point reminds us that, beyond language, status differences continue to shape educational opportunities.  



Evaluation. To effectively educate EL students, schools, districts and states must have the internal capacity not only to carry out meaningful EL program evaluationand arguably, many do not (Gándara, Rumberger, Maxwell-Jolly, & Callahan, 2003)but also to implement program improvement consistent with evaluation findings. Without grounding in the theory, pedagogy, and practice required to bring EL students closer to academic parity, we cannot expect program evaluation to produce valid measures of accountability. Currently, EL program evaluation focuses primarily on reclassification of EL students to English proficient (Gándara & Merino, 1993; Grissom, 2004; Linquanti, 2001; Robinson, 2011), yet it is not entirely clear that reclassification rates measure equitable educational access. In addition, EL program evaluation is often politically motivated (e.g., bilingual v. English-only), rather than focused on the root sources of educational inequity. Another issue is the lack of student voice when students are supposed to be the beneficiaries of programs. Engaging school staff with EL student perspectives regarding these programs combined with formative and summative data may make evaluation more meaningful. Finally, evaluation research should parse out program effects, school effects, and teacher effects while also accounting for student heterogeneity within the EL label.  

In closing, we reiterate the need to question both the theories we use to justify programs, as well as the nature of EL program implementation and evaluation. Unless programs are effectively implemented and meaningfully evaluated, their existence, in and of itself, will not provide the desired results. Programs may appear to follow the letter of the law, yet miss its spirit entirely.


1. The term English learner (EL) refers to language minority students formally identified by the school system for linguistic support services; federal and state agencies previously used the term limited English Proficient (LEP). Researchers have also used the terms bilingual, second language learners, and recently dual language learners. For purposes of this article, we use the term EL.

2. BICS and CALP refer to Cummins (1979, 1981) distinction between Basic Interpersonal Conversational Skills and Cognitive Academic Language Proficiency while i + 1 refers to Krashens (1985) input hypotheses.

3. See Valdés (2011) for a recent critique of second language acquisition (SLA) theories and their implications.


Callahan, R. M. (2005). Tracking and high school English learners: Limiting opportunity to learn. American Educational Research Journal, 42(2), 305-328.

Callahan, R. M., Wilkinson, L., & Muller, C. (2008). School context and the effect of ESL placement on Mexican-origin adolescents achievement. Social Science Quarterly, 89, 177-198.

Callahan, R. M., Wilkinson, L., Muller, C., & Frisco, M.L. (2009). ESL placement and schools: Effects on immigrant achievement. Educational Policy, 23, 355-384.

Callahan, R. M., Wilkinson, L., & Muller, C. (2010). Academic achievement and course taking among language minority youth in U.S. schools: Effects of ESL placement. Educational Evaluation and Policy Analysis, 32(1), 84-117.

Callahan, R. M., & Shifrer, D. (In Press). High school ESL placement: Practice, policy and effects on achievement. In Y. Kanno & L. Harklau (Eds.), Linguistic minority students go to college: Preparation, access, and persistence. New York: Routledge.

Castañeda v. Pickard. 648, F. 2d 989 (5th Cir. 1981).

Cummins, J. (1979). Cognitive/academic language proficiency, linguistic interdependence, the optimum age question and some other matters. Papers on Bilingualism, 19, 121-129.

Cummins, J. (1981). The role of primary language development in promoting educational success for language minority students. In California Department of Education (Ed.), Schooling and language minority students: A theoretical framework (pp. 3-49). Los Angeles: Evaluation, Dissemination and Assessment Center, California State University.

Clotfelter, C. T., Ladd, H. F., & Vigdor, J. (2005). Who teaches whom? Race and distribution of novice teachers. Economics of Education Review, 24, 377392.

Dabach, D.B. (2009). Teachers as a context of reception for immigrant youth: Adaptations in sheltered and mainstream classrooms. Unpublished doctoral dissertation, University of CaliforniaBerkeley.

Dabach, D.B. (2011a). Teachers as agents of reception: An analysis of teacher preference for immigrant-origin second language learners. The New Educator, 7(1), 66-86.

Dabach, D.B. (2011b). Teacher placement into EL courses: Teacher distribution to teach immigrant-origin EL youth within comprehensive high schools. Manuscript submitted for publication.

Darling-Hammond, L. (1995). Inequality and access to knowledge. In J. Banks & C.A. Banks (Eds.), Handbook of research on multicultural education (pp. 465-483). NY: MacMillan.

Darling-Hammond, L. (2000). Teacher quality and student achievement: A review of state policy evidence. Education Policy Analysis Archives, 8(1), 1-44.

Delpit, L. (1995). Other peoples children: Cultural conflict in the classroom. New York: The New Press.

Echevarria, J., Vogt, M., & Short, D. (2004). Making content comprehensible for English language learners: The SIOP model, (2nd ed.). Boston: Allyn & Bacon.

Elfers, A. M., Stritikus, T., Percy Calaff, K., Von Esch, K. S., Lucero, A., Knapp, M. S., & Plecki, M. L. (2009). Building systems of support for classroom teachers working with second language learners. Seattle, WA: University of Washington. Retrieved from http://depts.washington.edu/ctpmail/PDFs/ELLStudy-July2009.pdf

Gándara, P., & Merino, B. J. (1993). Measuring the outcomes of LEP programs: Test scores, exit rates, and other mythological data. Educational Evaluation & Policy Analysis, 15(3), 320-338.

Gándara, P., Moran, R., & García, E. (2004). The legacy of Brown: Lau and language policy in the United States. Review of Research in Education, 28, 27-56.

Gándara, P., & Orfield, G. (2010). A return to the Mexican room: The segregation of Arizonas English learners. Los Angeles, CA: Civil Rights Project/Proyecto Derechos Civiles. Retrieved from http://civilrightsproject.ucla.edu/research/k-12-education/language-minority-students/a-return-to-the-mexican-room-the-segregation-of-arizonas-english-learners-1

Gándara, P., Rumberger, R., Maxwell-Jolly, J., & Callahan, R. (2003). English learners in California schools: Unequal resources, unequal outcomes. Education Policy Analysis Archives, 11(36).

Goldenberg, C. (2008). Teaching English language learners: What the research doesand does notsay. American Educator, Summer, 8-23, 42-44 .

Grissom, J. B. (2004). Reclassification of English learners. Education Policy Analysis Archives, 12(36). Retrieved from http://epaa.asu.edu/ojs/article/view/191

Hakuta, K. (2011). Educating language minority students and affirming their equal rights: Research and practical perspectives. Educational Researcher, 40(4), 163-174.


Huntington, S. P. (2004). The Hispanic challenge. Foreign Policy, March/April, 30-45.

Lau v. Nichols, 414 U.S. 563 (1974).

Jaffe-Walker, R., & Lee, S.J. (2011). To trust in my root and to take that forward: Supporting college access for immigrant youth in the global city. Anthropology & Education Quarterly, 42(3), 281-296.

Krashen, S. (1985). The input hypothesis: Issues and implications. London: Longman.

Linquanti, R. (2001). The redesignation dilemma: Challenges and choices in fostering meaningful accountability for English learners. Santa Barbara: University of California Linguistic Minority Research Institute. Retrieved from http://escholarship.org/uc/item/2hw8k347#page-2

Little. J. W., & Bartlett, L. (2010). The teacher workforce and problems of educational equity. Review of Research in Education, 34, 285-328.

Lucas, T. (2011) Teacher preparation for linguistically diverse classrooms: A resource for teacher educators. New York: Routledge.

Menken, K., & Kleyn, T. (2010). The long-term impact of subtractive schooling in the educational experiences of secondary English learners. International Journal of Bilingual Education and Bilingualism, 13(4), 399-417.

Ovando, C., & Collier, V. (1998). Bilingual and ESL classrooms: Teaching in multicultural contexts. San Francisco, CA: McGraw Hill.

Olsen, L. (1997). Made in America. New York: The New Press.

Olsen, L. (2010). Reparable harm: Fulfilling the unkept promise of educational opportunity for Californias long term English learners. Long Beach, CA: Californians Together.

Pollack, M. (2008). Because of race: How Americans debate harm and opportunity in our schools. Princeton, NJ: Princeton University Press.

Robinson, J. P. (2011). Evaluating criteria for English learner reclassification: A causal-effects approach using a binding-score regression discontinuity design with instrumental variables. Educational Evaluation & Policy Analysis, 33(3), 267-292.

Siskin, L. S. (1997). The challenge of leadership in comprehensive high schools: School vision and departmental divisions. Educational Administration Quarterly, 33, 604-623.

van Lier, L. (2004). The ecology and semiotics of language learning: A sociocultural perspective. Norwell, MA: Kluwer Academic.

Valdés, G. (2011). Realistic expectations: English language learners and the acquisition of academic English. In G. Valdés, S. Capitelli & L. Alvarez, Latino children learning English: Steps in the journey (pp. 15-42). New York: Teachers College Press.

Walqui, A. & van Lier (2010). Scaffolding the academic success of adolescent English language learners: A pedagogy of promise. San Francisco: WestEd.

Zehler, A., Fleischman, H. L., Hopstock, P. J., Stephenson, T. G., M. L. Pendzick, & Sapru, S. (2003). Descriptive study of services to LEP students and LEP students with disabilities. Arlington, VA Development Associates, Inc. submitted to the U.S. Department of Education.


We would like to thank Robert Linquanti, Josh Meidav, and Tom Stritikus for valuable feedback on earlier drafts. Dabach would also like to acknowledge Sarah Freedman, Judith Warren Little, and Alex Saragoza for valuable feedback on the development of the research reported in this article. Dabachs research was funded by UC Language Minority Research Institute (LMRI), UC All Campus Consortium on Research for Diversity (ACCORD), the Center for Latino Policy Research, and the Spencer Research Training Grant program. Callahans recent research has been supported by grants from the American Educational Research Association which receives funds for its AERA Grants Program from the National Science Foundation under #DRL-0634035, and from the Russell Sage Foundation (RSF Project # 88-06-12).  Opinions are those of the authors and do not necessarily reflect the opinions of funders.

Cite This Article as: Teachers College Record, Date Published: October 07, 2011
https://www.tcrecord.org ID Number: 16558, Date Accessed: 1/21/2022 10:31:30 AM

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About the Author
  • Dafney Blanca Dabach
    University of Washington
    E-mail Author
    DAFNEY BLANCA DABACH is an Assistant Professor at the University of Washington. Her research focuses on the adaptation of host society institutions to immigrant populations, the nature of immigrant integration in secondary school settings, and teachers' work with immigrant-origin youth. Dabach's research reported in this article won the 2011 AERA Bilingual Education Research SIG Outstanding Dissertation Award.
  • Rebecca M. Callahan
    University of Texas, Austin
    E-mail Author
    REBECCA M. CALLAHAN is an Assistant Professor at the University of Texas, Austin. Her research focuses on educational and social experiences of immigrant youth in US high schools, and in their transition to young adulthood. Callahan was awarded the 2011 AERA Bilingual Education Research SIG Early Career Award, in part for the research reported in this article.
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