Abstract
Given increased state hostility to minority-language use and states' ever-changing, though at times inadequate, methods of accommodating English-language learners, federal intervention is necessary to protect vulnerable linguistic minorities. But, fueled by the Supreme Court and Congress since the early 2000s, the federal government has increasingly accorded greater deference to state legislatures and local school districts in the area of English-language learner (ELL) education. This growing acceptance of "deference not deserved" ignores evidence of state failure in education of ELLs and irresponsible state experimentation with the rights of students with limited English proficiency. It also marks a decided departure from historical practice in the area of ELL education, though federal involvement in funding and shaping state education policy is more firmly entrenched than ever.
Vindicating the ability of ELLs to access a meaningful education may undercut traditional notions of state control over education policy generally. But historical practice strongly supports the federal government's ability to protect vulnerable linguistic groups by conditioning federal dollars on the satisfaction of federal education standards. The spirit of the Equal Educational Opportunities Act, Supreme Court precedent regarding access to education, and the Common Core State Standards Initiative's federalization of school curricula all suggest that Congress should leverage its control over state education funds to protect ELLs.
Citation
Matthew P. O'Sullivan,
Laboratories for Inequality: State Experimentation and Educational Access for English-Language Learners,
64 Duke Law Journal
671-715
(2015)
Available at: https://scholarship.law.duke.edu/dlj/vol64/iss4/2