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Legislative Effects On ESL

Legislative Effects On ESL

Legislative Effects On ESL

Undone by Law: The Uncertain Legacy of Lau v. Nichols

Rachel F. Moran*

Although there has been widespread celebration of the fiftieth anniversary of Brown v. Board of Education,^ there has been relatively tittle recognition of the thirtieth anniversary of Lau v. Nichols.^ Brown rested on a finding that intentional segregation of public school students by race violates the equal protection clause of the Fourteenth Amendment. Lau pushed beyond a paradigm of intentional harm to attack exclusionary practices, whether or not motivated by a discriminatory purpose. The Supreme Court’s decision in Lau was based not on a constitutional wrong, but on a violation of Title VI of the Civil Rights Act, as interpreted by the Office for Civil Rights (OCR). The statute, along with OCR’s interpretation, barred school practices that have the effect of excluding children from the educational process based on language, where language is a proxy for race, ethnicity, or national origin.

By finding a violation based on discriminatory effect, regardless of underlying intent, Lau greatly amplified the scope of civil rights protection. Today, that approach is under increasing attack, and the pressing question is how and if Lau will miraculously survive the undoing of its opinion. This article first provides a brief history of Lau and then examines how it has undergone a kind of ritual dismemberment in the courts. The article closes by exploring whether Law’s undoing really matters in light of other federal protections. Although these protections continue to provide meaningful access to the courts for English language learners, none is a perfect substitute for the enforcement regime established under Lau.


The Lau case was filed on behalf of 2,856 Chinese-speaking students in the San Francisco school system, nearly two-thirds of whom received instruction only in English. Although the school district offered special language assistance to Spanish- speaking students, it did nothing to accommodate Chinese-speaking students. In demanding relief, the plaintiffs relied not only on the equal protection clause but also on Title VI as interpreted by OCR.̂

* Robert D. and Leslie-Kay Raven Professor of Law, University of California School of Law (Boalt Hall). I would like to thank Professor Patricia Gandara for asking me to participate in a panel commemorating the thirtieth anniversary of Lau v. Nichols at the annual meeting of the American Educational Research Association (AERA) in 2004.1 also appreciate an invitation from Dr. Russell Rumberger, Director of the Language Minority Research Institute (LMRI), to publish my AERA presentation in the LMRI Newsletter. Finally, I am grateful for the opportunity to expand on my original work and reach a legal audience through the generosity of the Berkeley La Raza Law Journal.

1. 347 U.S. 483 (1954). 2. 414 U.S. 563 (1974), rev’g, 483 F.2d 791 (9th Cir. 1973). 3. 414 U.S. at 565. The plaintiffs also brought claims under California law, 483 F.2d at 793.




Passed in 1964, Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal fmancial assistance.”” In response to civil rights protests and ongoing unrest. Congress enacted the omnibus bill to target segregation and discrimination in the South. With its focus on the subordination of Blacks, Title VI did not specifically address the problems of linguistic minorities.^

Even so, in 1970, OCR, a federal agency charged with enforcing Title VI, concluded that its broad mandate of non-discrimination reached language barriers that “exclude[] national origin-minority group children fi-om effective participation in the educational program offered by a school district.”* According to OCR’s understanding, language could serve as a proxy for race, ethnicity, and national origin and should not be used to mask illicit discrimination on these grounds. Moreover, students harmed by a school’s language policy need not prove discriminatory intent to prevail; the effect of exclusion sufficed to establish a Title VI violation.^ OCR mandated that school districts “take affirmative steps to rectify the language deficiency in order to open its instructional program to [linguistic minority] students.”* Despite this federal demand for special instruction, San Francisco, along with most districts, continued to offer little, if any, assistance, and OCR lacked the resources to enforce its requirement.’

As a result, the Lau litigation was an important test of whether OCR could successfiilly broaden Title VI’s protections. By bringing the lawsuit against the San Francisco school system, Chinese-speaking students hoped to give OCR’s interpretation real force. At first, it appeared that these efforts would be thwarted. Both the trial judge and the court of appeals ruled against the students, rejecting their statutory and constitutional claims under federal and state law. The district court, though sympathetic to the students’ plight, concluded that the San Francisco school system had discharged its legal obligations by making “the same education.. .available on the same terms and conditions” as it did to others enrolled in the district.”‘ The court of appeals agreed, distinguishing the impact of state-mandated segregation from language difference. In the court’s view, govemment officials had taken steps to keep public schools racially identifiable, but “the language deficiency suffered by [these Chinese-speaking students] was not caused directly or indirectly by any State action.”” For that reason, the Ninth Circuit found the plaintiffs’ interpretation of equal protection and Title VI, one that directly refiected OCR’s views, “extreme”‘^ because it failed to recognize that children arrive at school with “different advantages and disadvantages caused in part by social, economic and cultural background, created and continued completely apart from any

These state law claims will not be discussed in detail here. 4. 42 U.S.C. § 2000d (2003). 5. Rachel F. Moran, The Politics of Discretion: Federal Intervention in Bilingual Education, 76

CAL. L. REV. 1249, 1266 (1988). 6. Identification of Discrimination and Denial of Services on the Basis of National Origin, 35 Fed.

Reg. 11,595 (1970). See genera//y Peter Margulies, Bilingual Education, Remedial Language Instruction. Title VI. and Proof of Discriminatory Purpose: A Suggested Approach, 17 COLUM. J.L. & SOC. PROBS. 99, 115-16 (1981) (recounting the history of administrative interpretations of Title VI).

7. Moran, supra note 5, at 1266-67. 8. Identification of Discrimination and Denial of Services on the Basis of National Origin, 35 Fed.

Reg. 11,595. 9. Moran, supra note 5, at 1267-68. 10. Lau V. Nichols, 483 F.2d 791, 793 (9th Cir. 1973), rev’d, 414 U.S. 563 (1974). 11. W. at 798. 12. W. at 794.




contribution by the school system.””’ In the Ninth Circuit’s view, the school was not required to rectify all of these differences and disadvantages.'”*

The United States Supreme Court reversed, relying heavily on OCR’s views about the scope of Title VI’s coverage. In adopting OCR’s interpretation, the Court noted that Congress had authorized the agency to interpret and enforce Title VI.” Moreover, the San Francisco school district had agreed to abide by OCR’s requirements when it accepted federal funds.”‘ The Court did not determine whether the San Francisco school system had denied the students equal protection under the Fourteenth Amendment, nor did the Justices order any specific remedy.” Instead, the Justices urged the school district to apply its expertise to devise appropriate accommodations for the Chinese-speaking students.’* Because there was no finding that the district’s actions were motivated by animus, the Court presumably remained optimistic that school officials would act in good faith to redress the problem of language difference.

The Court relied on several key principles to reach the decision in Lau. First, Congress had the power to prohibit behavior that does not necessarily amount to a constitutional violation.” The Constitution prohibits intentional wrongs but does not reach actions taken in good faith that have a racially adverse effect.^” Even so, under section 5 of the Fourteenth Amendment, Congress has been empowered to rectify inequality by recognizing disparate impact claims.^’ Second, Congress exercised this power when enacting Title VI of the Civil Rights Act; that is, the statute reaches not just intentional discrimination but also acts with an adverse effect.̂ ^ As a result, the federal govemment could police possible wrongdoing even when a discriminatory purpose was difficult to prove. Third, a federal enforcement agency’s understanding of the scope of civil rights protection was legitimate and authoritative.^” Because Congress had delegated enforcement responsibilities to OCR, the Court deferred to its conclusion that Title VI reached exclusionary language policies.^” Fourth, private individuals like the Chinese-speaking students in San Francisco could sue to ensure that Title VI’s mandates

13. Id 3X191. 14. Id. The Ninth Circuit emphasized the importance of state action in segregation cases, whether

de jure or de facto. Id. at 799. Because the California constitution appeared to reach both intentional and unintentional acts, the court of appeals could not dismiss the plaintiffs’ claim under state law simply because the San Francisco school district lacked any invidious motivation in denying students special language assistance. Instead, the court had to distinguish between state action and inaction to dismiss both the state and federal claims. Id.

15. 414 U.S. at 566-68. In their concurrence. Justices Stewart and Blackmun as well as Chief Justice Burger noted that agency interpretations were “entitled to great weight.” Id. at 569, 571 (citing Trafficante v. Metro. Life Ins. Co., 409 U.S. 205,210 (1972); Griggs v. Duke Power Co., 401 U.S. 424,433- 34 (1971); Udall v. Tallman, 380 U.S. 1 (1965)).

16. Law, 414 U.S. at 568-69. 17. W. at 566, 569. 18. Id. at 561. 19. See id 20. Lau did not reach this issue because the Court looked at Title VI, not the equal protection

clause in arriving at the decision. Id. at 566. Cases handed down shortly thereafter made the intent requirement clear. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,265 (1977); Washington v. Davis, 426 U.S. 229 (1976).

21. At the time of the Lau decision, the Court took a broad view of these congressional powers. See. e.g.. Katzenbach v. Morgan, 384 U.S. 641 (1966). The Court has since taken a far more restrictive approach to the scope of congressional authority to enforce the Fourteenth Amendment under section 5, as will be discussed later. See infra notes 41 – 42 and accompanying text.

22. l a u , 414 U.S. at 568. 23. See id at 567. 24. Id




were met.̂ ^ These private rights of action supplemented federal enforcement actions and were seen as critically important given the limited resources of agencies like OCR.̂ * Fifth and finally, in light of this history of congressional action and agency interpretation, the school district’s exclusive reliance on English-language instruction wrongfully excluded non-English-speaking children from access to the curriculum in violation of Title VI.”


Since Lau was handed down in 1974, its legal underpinnings have been under siege in the federal courts. Little by little, the case is being undone by law, and its fate grows increasingly uncertain. As will become clear, the Supreme Court has expressed significant doubts about the scope of congressional power and the discretion accorded to civil rights enforcement agencies under Title VI. In addition, the Justices have eliminated private rights of action for disparate impact claims under the statute.

The Court first undercut Lau’s assumption that Title VI addresses both intentional discrimination and disparate impact. Guardians Ass’n v. Civil Service Commission^^ held that Title VI authorizes compensatory relief only for purposeful wrongs, not actions with adverse effects.^’ The Justices hastened to add that Lau technically remained good law because it was predicated not just on the statute but also on OCR’s interpretation.^” Though Guardians Ass’n produced a fragmented and somewhat confusing set of opinions, the Court’s doctrinal position was subsequently clarified in Alexander v. Choate?^ There, the Court indicated that although Title VI itself did not support a disparate impact claim, agency regulations could rely on this theory of liability.”^

Lau suffered another blow in 2001 when the Court decided Alexander v. SandovalP In that case, the Justices held that there is no private right of action under Title VI disparate impact regulations.'”* In the Court’s view. Congress did not use clear and unambiguous language to establish a private right to sue based on disparate impact regulations, nor did the rights-based nature of these entitlements automatically imply an individual remedy in federal courts.”^ Now, if federal agencies interpret Title VI as reaching actions with adverse effects, it is up to those agencies to file legal actions based on this theory.’^ After Sandoval, then, private plaintiffs can sue only for intentional discrimination, an action already available under the Fourteenth Amendment.

Some legal commentators believe that plaintiffs can still use 42 U.S.C. § 1983

25. See id. at 564. 26. Rebecca E. Zeittow, Federalism’s Paradox: The Spending Power and Waiver of Sovereign

Immunity, 37 WAKE FOREST L. REV. 141, 214-15 (2002). 27. Z,aM, 414 U.S. at 568. 28. 463 U.S. 582(1983). 29. Id at 593. 30. W. at 591-92. 31. 469 U.S. 287(1985). 32. Id. at 294. 33. 532 U.S. 275(2001). 34. Id. at 293. 35. Id. at 289. 36. Id. at 290.




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