DIVISION OF LEGISLATIVE SERVICES
VIRGINIA LEGISLATIVE ISSUE BRIEF
Number 26 December 2001

2002 SESSION: General Assembly Issues

Business - Campaigns/Elections - Constitutional Amendments - Courts -
Education - Finance/Taxation - Health - Local Government -
Mental Health - Natural Resources - Transportation - Virginians with Disabilities

Education

Limited-English-Proficient Students

Across Virginia, programs for limited-English-proficient (LEP) students have grown in number and in cost. Virginia's school-age population of students for whom English is a second or not-native language has grown from 5,390 in 1977 to 36,802 in 2000.

Although the largest concentration of LEP students resides in Northern Virginia (76.8 percent), virtually every school division is affected. For example, in 2000, 10.7 percent of Fairfax County students (16,746) were LEP students; Arlington County enrollment included 25.8 percent (4,858) LEP students; and Alexandria had 16.2 percent (1,806) LEP students. Similarly, Harrisonburg enrolled 17.5 percent and Galax 9.4 percent LEP students.

More than half (58 percent) of the LEP students are Spanish-speakers; 4.9 percent are Korean; 4.5 percent are Vietnamese; 3.7 percent speak Urdu; 3.7 percent speak Arabic; and 2.7 percent speak one of the Chinese languages. Among the other languages represented in Virginia's schools are Afghan/Pashto, Farsi, Bangali, Burmese, Dutch, French, German, Greek, Gujarati, Hebrew, Hindi, Indonesian, Italian, Japanese, Kurdi, Laotian, Malay, Navajo, Nepali, Persian, Polish, Portuguese, Punjabi, Romanian, Russian, Serbo-Croatian, Somali, Tagalog or Filipino, Thai, Turkish, and Twi.

Most of the LEP students in Virginia receive English immersion or intensive instruction in English while grouped in classes with speakers of various languages. However, in some instances, bilingual or dual-immersion instruction is provided to a small percentage of the LEP students. According to the Department of Education, at least two Northern Virginia localities offer such heritage language instruction through either a bilingual program for very young children or a dual-immersion program in which both English speakers and Spanish speakers receive instruction half of the time in each language.

Federal Law

Federal law relating to education rights and English as a Second Language (ESL) students and programs is essentially composed of two statutes: Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the Equal Educational Opportunity Act of 1974 (EEOA), 20 U.S.C. § 1701 et seq.

Title VI of the Civil Rights Act of 1964 prohibits racial and ethnic discrimination in any program receiving federal money. In the case of public education, virtually every school must comply with this law. Specifically, Title VI of the Civil Rights Act of 1964 requires that "no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, denied the benefits of, or be subject to discrimination under any program or activity receiving federal assistance" (emphasis added). Thus, school divisions, because they all receive federal money, must not exclude, deny, or discriminate based upon the national origin of their students.

In the early 1970s, Title VI was interpreted by the federal enforcement agency to require instruction for LEP students that allows "meaningful access" to educational programs. In 1974, the U.S. Supreme Court held that a school system's failure to provide English language instruction to Chinese students denied them a meaningful opportunity to participate in public educational programs, violating the Civil Rights Act. The Supreme Court stated, in its opinion in Lau v. Nichols, 414 U.S. 563 (1974), that "students who do not understand English are effectively foreclosed from any meaningful education. Basic English skills are at the very core of what these public schools teach."

The EEOA was passed in 1974, specifying that states must take "appropriate action to overcome language barriers that impede equal participation by [their] students in [their] instructional programs." In other words, the Supreme Court's decision in Lau was reinforced by the Equal Educational Opportunity Act, which provides that "no state shall deny equal educational opportunity to an individual on account of his or her race, color, sex or national origin, by . . . the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs."

Thus, because not being able to speak English is an indicator of ethnicity or national origin, a school system may not exclude, deny, or discriminate against a student in the provision of an education based on the language the student speaks. Further, schools are required to address the needs of students with limited English proficiency by "appropriate action."

Various federal court decisions and the provisions of various federal and state laws must be merged to understand the way schools can handle LEP programs. For example, federal policy provides that the time required for LEP students to learn English well enough to compete with other students cannot be set as a hard-and-fast time limitation. Federal immigration law, court decisions, and the Virginia Constitution require that free public education be provided to students who are bona fide residents.

Funding

Virginia provided $5,166,782 in funding for local LEP programs in 2000-2001. Federal programs in 2000-2001 provided allocations to localities totaling $2,223,324 through the Emergency Immigrant Education Program and $376,849 through the Refugee Impact Program. The majority of the costs for LEP programs falls on localities—Fairfax County alone has incurred local costs for LEP programs totaling $34 million in 2000-2001.

As the LEP student population continues to increase across the state and localities are faced with educating students from war-torn countries, including young people in their teens who have received little education in their own language, the costs and delivery of LEP programs may intensify.

Norma E. Szakal

Educational Accountability

Educational accountability should again figure prominently in the 2002 Session of the General Assembly. The past two sessions have considered, but failed to pass, a number of measures addressing the use of "multiple criteria" in determinations of school accreditation, graduation requirements, and student promotion and retention policies. Because the issue continues to fuel discussions before the Board of Education, the SJR 385 Commission on Educational Accountability, and citizen groups, the 2002 Session may again witness the introduction of legislation seeking to incorporate multiple measures for student and school performance.

Kathleen G. Harris

Privacy Statement | Legislative Services | General Assembly