Language and Education Rights of Linguistic Minorities
Introduction
Marking the 50th anniversary of Lau v. Nichols, this summary chronologically recounts the history and impact of legal cases and California Propositions that have advanced the educational and bilingual education rights of minorities in the U.S. The landmark California Supreme Court decision Tape v. Hurley (1885) was started in San Francisco (CA) and paved the way for the national Supreme Court’s Brown v. Board of Education (1954) decision. Two decades later, Lau v. Nichols successfully addressed bilingual education rights of linguistic minorities. Today, 40 percent of California students are currently or were once English learners, meaning California has more English learners than any other state. However, according to a 2023 report released by The Century Foundation, a public policy think tank based in New York City and Washington, D.C., California enrolls a far lower percentage of English learners in bilingual education programs. Instead of neglecting the rich cultural and linguistic assets, California needs to channel them into bilingual education. The San Francisco Unified School District, where Lau v. Nichols originated should especially view bilingual education as invaluable assets.
In 2024, SFUSD is deciding the fate of a dual language immersion program in middle schools through the Resource Alignment Initiative (RAI). Studies show that dual language immersion programs are the most effective bilingual program model for helping children achieve biliteracy, weaving rich linguistic and cultural assets into each school community. This summary reexamines several U.S. legal cases surrounding language rights of linguistic minorities and the impact of these legal movements on education. The hard-fought local legal victories of the past helped set international standards toward the advancement of equal educational and language rights of children, especially linguistic minority children. This legacy, we need to carry on together.
Tape v. Hurley (1885); Mendez v. Westminster (1947); Brown v. Board of Education (1954)
In 1882, Congress passed the Chinese Exclusion Act two years after the California State Legislature passed a law (California Code 1662) that entitled all children in the state to public schools. The Chinese Exclusion Act imposed a strict 10-year ban on Chinese laborers immigrating to the United States and prevented them from becoming naturalized American citizens. Impacted by the Chinese Exclusion Act, an American-born Chinese American girl, Mamie Tape, age 8, was denied acceptance into her local Spring Valley Primary school in San Francisco. Her mother sued Principal Jennie M.A. Hurley and the school board. In 1885, the California Supreme Court found that the exclusion of a Chinese American student from public school based on ancestry was unlawful. This ruling confirmed that minority children were entitled to attend public school in California.
Throughout the 19th century, children of Mexican ancestry were exempted from school segregation. However, as the population of Mexican Americans increased to become California’s largest minority group in 1930s, children of Mexican ancestry were pressured to attend separate “Mexican schools.” In 1945, when he was notified that his three children would have to attend the "Mexican school," Gonzalo Mendez organized Mexican American parents to challenge the segregation of their children in Westminster, CA and other Orange County school districts. Making the argument that segregating K–12 students based on their nationality or ethnic background violated the 14th Amendment of the U.S. Constitution, Mendez won his case in the California federal courts in 1947.
Only a few years after Mendez v. Westminster, in 1951, the public school system in Topeka, KS, refused to enroll local black resident Linda Brown at her closest school, instead insisting she get bussed to a segregated Black school farther away. Arguing that segregation policy was unconstitutional, the Browns and twelve other local black families in similar situations filed a class-action lawsuit against the Topeka Board of Education, hence known as Brown v. Board of Education. In 1954, the Supreme Court ruled that separating children in public schools on the basis of race was unconstitutional. Brown v. Board of Education signaled the end of legalized racial segregation in U.S. schools, overruling the “separate but equal” mandate stemming from 1896’s Plessy v. Ferguson case. In his delivery of the court decision, Chief Justice Earl Warren stated that, “We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal ….”
Bilingual Education Act (1968); Johnson v. SFUSD (1971); and Lau v. Nichols (1974)
In 1968, Congress passed the Bilingual Education Act to address the needs of Limited English Speaking Abilities students. It provided federal grants to school districts for the purpose of establishing educational programs for children with limited English-speaking ability. However, its application was limited, and school participation in those programs was voluntary.
Despite the civil rights and language rights movement, segregation continued in many districts, including the San Francisco Unified School District (SFUSD). Then in 1971 in the Johnson v. SFUSD case, the National Association for the Advancement of Colored People (NAACP) successfully sued the SFUSD on behalf of Black students and teachers for discriminatory practices and segregation. Responding to Johnson v. SFUSD, the district adopted its first elementary school desegregation plan, called the “Horseshoe Plan” because of its shape on the map when geographic lines were drawn to desegregate elementary schools.
A year prior to SFUSD’s desegregation, in 1970, Wai Kam Lau, along with other Chinese parents, sued the San Francisco Unified School District for violating the Civil Rights Act of 1964 and depriving English language learners the equal opportunity of a quality education. In 1974, in the Lau v. Nichols case, the Supreme Court ruled in favor of Chinese parents, stating that the school district had a responsibility to provide English-language learners with quality bilingual education.
In 1998, Silicon Valley millionaire Ron Unz played a major role enabling the passage of California’s Proposition 227, designed to restrict bilingual education as an instructional tool in public schools. However, acknowledging the significance of bilingual programs, 18 years later, in 2016, California passed Proposition 58. By overturning Prop 227, it supports bilingual education in public schools.
International Standards on Language Rights of Linguistic Minorities
In 2013, Rita Izsák-Ndiaye, the UN Special Rapporteur on minority issues, presented her annual report to the UN Human Rights Council focusing on the challenges and rights of linguistic minorities. In her report, she expressed concern that linguistic minorities in all regions faced challenges to their language rights. The challenges include: “restrictions on the opportunities available to linguistic minorities to learn and receive education for their children in minority languages, as well as limitations on the use of minority languages in public life and the media.” Furthermore, she warned that globally, many minority languages are under threat of significant decline or disappearance due to factors including the dominance of national and international languages and processes of assimilation.
The 2017 guide, Language Rights of Linguistic Minorities: A Practical Guide for Implementation, published by the UN Human Rights, Office of the High Commissioner, states that, “Funding for all public educational activities, including for those in minority languages, must be accessible and disbursed in a non-discriminatory manner, including on the ground of language. Public education in minority languages must in addition seek to achieve bilingualism.” (p. 20) Despite some differences, this guide, alongside the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UNESCO’s Three Principles of Language and Education, and other organizations in similar fields, define language rights as human rights and state that these rights are shared by linguistic minorities. The 2017 guide clearly states that, “Quality public education in the mother tongue should ‘be extended to as late a stage in education as possible,’ up to and including public university education where practicable. Ideally, the instruction in the mother tongue should last for a minimum of between six to eight years–more when this is feasible.”
The guide mentions studies from the late 1990s to early 2010s published by the World Bank, UNESCO, UNICEF found the benefits of proportionate use of minority languages in education. Specifically, when combined with quality teaching in the official language, the inclusion of minority language equals: 1. more cost-efficiency in the long term; 2. reduction of dropout and repetition rates; 3. better academic results; 4. improved literacy and fluency in both the mother tongue and the official language; 5. greater family and community involvement; and 6. increased inclusiveness, participation, access, quality, and effectiveness when used in public and state administration.
In 2020, reiterating the benefits of education in a minority’s mother tongue, UN Special Rapporteur Fernand de Varennes added that education in a minority’s mother tongue is not only necessary for inclusive, quality education but also to respect the human rights of all children.
Conclusion
The legal activism of linguistic minorities for equal access to quality education since the late 19th century in San Francisco has grown and expanded to include diverse bilingual programs that serve as an effective bridge to bring cultures, languages, and communities together. Yet the threats to these rights are still present. Today, SFUSD is on the verge of dismantling or reducing 6-8th grade dual language immersion programs, a successful bilingual education program model achieving biliteracy. At a virtual town hall meeting in March 2024, SFUSD began gathering input regarding the RAI, a strategic planning process launched in 2022 to align its programs and school portfolio with its declining resources and enrollment. RAI will affect the entire school district community in multiple areas, including school availability and program offerings. As SFUSD is underway with the RAI roadmap, it’s pertinent that the district identifies the powerful assets of rich linguistic and cultural diversity rooted in its community and meet the demands of parents and the state for bilingual education. It also must respect the language rights of linguistic minorities. Providing dual language immersion programs in middle schools is one big step forward for diversity, inclusion, and equity for all children.
Submitted by Sung Sohn
References
Legal cases
Marking the 50th anniversary of Lau v. Nichols, this summary chronologically recounts the history and impact of legal cases and California Propositions that have advanced the educational and bilingual education rights of minorities in the U.S. The landmark California Supreme Court decision Tape v. Hurley (1885) was started in San Francisco (CA) and paved the way for the national Supreme Court’s Brown v. Board of Education (1954) decision. Two decades later, Lau v. Nichols successfully addressed bilingual education rights of linguistic minorities. Today, 40 percent of California students are currently or were once English learners, meaning California has more English learners than any other state. However, according to a 2023 report released by The Century Foundation, a public policy think tank based in New York City and Washington, D.C., California enrolls a far lower percentage of English learners in bilingual education programs. Instead of neglecting the rich cultural and linguistic assets, California needs to channel them into bilingual education. The San Francisco Unified School District, where Lau v. Nichols originated should especially view bilingual education as invaluable assets.
In 2024, SFUSD is deciding the fate of a dual language immersion program in middle schools through the Resource Alignment Initiative (RAI). Studies show that dual language immersion programs are the most effective bilingual program model for helping children achieve biliteracy, weaving rich linguistic and cultural assets into each school community. This summary reexamines several U.S. legal cases surrounding language rights of linguistic minorities and the impact of these legal movements on education. The hard-fought local legal victories of the past helped set international standards toward the advancement of equal educational and language rights of children, especially linguistic minority children. This legacy, we need to carry on together.
Tape v. Hurley (1885); Mendez v. Westminster (1947); Brown v. Board of Education (1954)
In 1882, Congress passed the Chinese Exclusion Act two years after the California State Legislature passed a law (California Code 1662) that entitled all children in the state to public schools. The Chinese Exclusion Act imposed a strict 10-year ban on Chinese laborers immigrating to the United States and prevented them from becoming naturalized American citizens. Impacted by the Chinese Exclusion Act, an American-born Chinese American girl, Mamie Tape, age 8, was denied acceptance into her local Spring Valley Primary school in San Francisco. Her mother sued Principal Jennie M.A. Hurley and the school board. In 1885, the California Supreme Court found that the exclusion of a Chinese American student from public school based on ancestry was unlawful. This ruling confirmed that minority children were entitled to attend public school in California.
Throughout the 19th century, children of Mexican ancestry were exempted from school segregation. However, as the population of Mexican Americans increased to become California’s largest minority group in 1930s, children of Mexican ancestry were pressured to attend separate “Mexican schools.” In 1945, when he was notified that his three children would have to attend the "Mexican school," Gonzalo Mendez organized Mexican American parents to challenge the segregation of their children in Westminster, CA and other Orange County school districts. Making the argument that segregating K–12 students based on their nationality or ethnic background violated the 14th Amendment of the U.S. Constitution, Mendez won his case in the California federal courts in 1947.
Only a few years after Mendez v. Westminster, in 1951, the public school system in Topeka, KS, refused to enroll local black resident Linda Brown at her closest school, instead insisting she get bussed to a segregated Black school farther away. Arguing that segregation policy was unconstitutional, the Browns and twelve other local black families in similar situations filed a class-action lawsuit against the Topeka Board of Education, hence known as Brown v. Board of Education. In 1954, the Supreme Court ruled that separating children in public schools on the basis of race was unconstitutional. Brown v. Board of Education signaled the end of legalized racial segregation in U.S. schools, overruling the “separate but equal” mandate stemming from 1896’s Plessy v. Ferguson case. In his delivery of the court decision, Chief Justice Earl Warren stated that, “We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal ….”
Bilingual Education Act (1968); Johnson v. SFUSD (1971); and Lau v. Nichols (1974)
In 1968, Congress passed the Bilingual Education Act to address the needs of Limited English Speaking Abilities students. It provided federal grants to school districts for the purpose of establishing educational programs for children with limited English-speaking ability. However, its application was limited, and school participation in those programs was voluntary.
Despite the civil rights and language rights movement, segregation continued in many districts, including the San Francisco Unified School District (SFUSD). Then in 1971 in the Johnson v. SFUSD case, the National Association for the Advancement of Colored People (NAACP) successfully sued the SFUSD on behalf of Black students and teachers for discriminatory practices and segregation. Responding to Johnson v. SFUSD, the district adopted its first elementary school desegregation plan, called the “Horseshoe Plan” because of its shape on the map when geographic lines were drawn to desegregate elementary schools.
A year prior to SFUSD’s desegregation, in 1970, Wai Kam Lau, along with other Chinese parents, sued the San Francisco Unified School District for violating the Civil Rights Act of 1964 and depriving English language learners the equal opportunity of a quality education. In 1974, in the Lau v. Nichols case, the Supreme Court ruled in favor of Chinese parents, stating that the school district had a responsibility to provide English-language learners with quality bilingual education.
In 1998, Silicon Valley millionaire Ron Unz played a major role enabling the passage of California’s Proposition 227, designed to restrict bilingual education as an instructional tool in public schools. However, acknowledging the significance of bilingual programs, 18 years later, in 2016, California passed Proposition 58. By overturning Prop 227, it supports bilingual education in public schools.
International Standards on Language Rights of Linguistic Minorities
In 2013, Rita Izsák-Ndiaye, the UN Special Rapporteur on minority issues, presented her annual report to the UN Human Rights Council focusing on the challenges and rights of linguistic minorities. In her report, she expressed concern that linguistic minorities in all regions faced challenges to their language rights. The challenges include: “restrictions on the opportunities available to linguistic minorities to learn and receive education for their children in minority languages, as well as limitations on the use of minority languages in public life and the media.” Furthermore, she warned that globally, many minority languages are under threat of significant decline or disappearance due to factors including the dominance of national and international languages and processes of assimilation.
The 2017 guide, Language Rights of Linguistic Minorities: A Practical Guide for Implementation, published by the UN Human Rights, Office of the High Commissioner, states that, “Funding for all public educational activities, including for those in minority languages, must be accessible and disbursed in a non-discriminatory manner, including on the ground of language. Public education in minority languages must in addition seek to achieve bilingualism.” (p. 20) Despite some differences, this guide, alongside the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UNESCO’s Three Principles of Language and Education, and other organizations in similar fields, define language rights as human rights and state that these rights are shared by linguistic minorities. The 2017 guide clearly states that, “Quality public education in the mother tongue should ‘be extended to as late a stage in education as possible,’ up to and including public university education where practicable. Ideally, the instruction in the mother tongue should last for a minimum of between six to eight years–more when this is feasible.”
The guide mentions studies from the late 1990s to early 2010s published by the World Bank, UNESCO, UNICEF found the benefits of proportionate use of minority languages in education. Specifically, when combined with quality teaching in the official language, the inclusion of minority language equals: 1. more cost-efficiency in the long term; 2. reduction of dropout and repetition rates; 3. better academic results; 4. improved literacy and fluency in both the mother tongue and the official language; 5. greater family and community involvement; and 6. increased inclusiveness, participation, access, quality, and effectiveness when used in public and state administration.
In 2020, reiterating the benefits of education in a minority’s mother tongue, UN Special Rapporteur Fernand de Varennes added that education in a minority’s mother tongue is not only necessary for inclusive, quality education but also to respect the human rights of all children.
Conclusion
The legal activism of linguistic minorities for equal access to quality education since the late 19th century in San Francisco has grown and expanded to include diverse bilingual programs that serve as an effective bridge to bring cultures, languages, and communities together. Yet the threats to these rights are still present. Today, SFUSD is on the verge of dismantling or reducing 6-8th grade dual language immersion programs, a successful bilingual education program model achieving biliteracy. At a virtual town hall meeting in March 2024, SFUSD began gathering input regarding the RAI, a strategic planning process launched in 2022 to align its programs and school portfolio with its declining resources and enrollment. RAI will affect the entire school district community in multiple areas, including school availability and program offerings. As SFUSD is underway with the RAI roadmap, it’s pertinent that the district identifies the powerful assets of rich linguistic and cultural diversity rooted in its community and meet the demands of parents and the state for bilingual education. It also must respect the language rights of linguistic minorities. Providing dual language immersion programs in middle schools is one big step forward for diversity, inclusion, and equity for all children.
Submitted by Sung Sohn
References
Legal cases
- Bilingual Education Act (1968), USLegal, available at https://education.uslegal.com/bilingualism/landmark-legislation/bilingual-education-act-1968/
- Brown v. Board of Education (1954), National Archives, available at https://www.archives.gov/milestone-documents/brown-v-board-of-education#:~:text=Citation%3A%20Brown%20v.%20Board%20of,Record%20Group%20267%3B%20National%20Archives.&text=In%20this%20milestone%20decision%2C%20the,basis%20of%20race%20was%20unconstitutional
- Johnson v. SFUSD (1971), SFUSD, available at https://www.sfusd.edu/facing-our-past-changing-our-future-part-i-century-segregation-san-francisco-unified-school-district
- Lau v. Nichols (1974), U.S. Department of Education, available at https://www2.ed.gov/about/offices/list/ocr/ell/lau.html
- Mendez v. Westminster (1947), United States Courts, available at https://www.uscourts.gov/educational-resources/educational-activities/background-mendez-v-westminster-re-enactment
- Tape v. Hurley, The Asian American Education Project, available at https://asianamericanedu.org/school-desegregation.html
- The Century Foundation, 2023, available at https://tcf.org/content/report/moving-from-vision-to-reality-establishing-california-as-a-national-bilingual-education-and-dual-language-immersion-leader/
- Report of the Independent Expert on minority issues on linguistic minorities, A/HRC/22/49, 2013, available at http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/AHRC2249_English.PDF
- UN General Assembly resolution 47/135, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992, available at https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-rights-persons-belonging-national-or-ethnic
- UN Human Rights, Office of the High Commissioner, Language Rights of Linguistic Minorities: A Practical Guide for Implementation, 2017, available at https://www.ohchr.org/en/documents/tools-and-resources/language-rights-linguistic-minorities-practical-guide-implementation
- UN News, 2020, available at https://news.un.org/en/story/2020/03/1059241#:~:text=The%20independent%20expert%2C%20a%20Canadian,be%20taught%20as%20a%20subject