It is hardly an idle question. Whether to continue teaching LEP students in two languages is now a matter of public debate throughout the U.S.A. Since the mid-1980s, critics have won increasing support for the contention that this experiment, while well-intentioned, has failed to meet expectations. Now, in the late 1990s, policymakers are seriously considering demands to limit or even dismantle the program. California voters have already chosen the latter course. Proposition 227, a ballot initiative approved in June 1998, eliminates most native-language instruction in a state with 40 percent of the nation's LEP students.⁽¹⁾ The future of bilingual education is suddenly in doubt. 

Ironically, research provides considerably more support for bilingual approaches today than it did in 1968, when few program models existed and almost none had been evaluated. What seemed reasonable in theory – that investing in children's native-language development should ultimately pay cognitive and academic dividends – has now been borne out in pedagogical practice. Not that success has been universal for all approaches labeled bilingual. Nor has research proved "conclusively," beyond a reasonable doubt, their superiority over English-only methodologies for all children in all contexts. By a more reasonable standard, however, a preponderance of the evidence favors the conclusion that well-designed bilingual programs can produce high levels of school achievement over the long term, at no cost to English acquisition, among students from disempowered groups (see, e.g., Ramírez et al. 1991; Willig 1985; Greene 1998). 

Pedagogically speaking, these research findings are excellent news. They confirm that developing fluent bilingualism and cultivating academic excellence are complementary, rather than contradictory, goals. Sacrificing LEP students' native language is unnecessary to teach them effectively in English. Moreover, the findings suggest that, while language is not the only barrier to school success for these children, approaches that stress native-language instruction can be helpful in overcoming other obstacles such as poverty, family illiteracy, and social stigmas associated with minority status. These challenges are formidable, to be sure, requiring schools to replicate effective program models, adapt them to local conditions, train and retrain teachers, develop curriculum and materials, involve parents, and pay attention to a host of other practical details. Yet they are hardly insuperable – given a public commitment to improve programs for English learners. 

Politically speaking, however, the research findings are less encouraging. They support an educational rationale for bilingual instruction that is both complex and counterintuitive to members of the public. They also imply a sociopolitical goal that few Americans are inclined to endorse: the legitimation of "bilingualism" in public contexts. Indeed, since the mid-1980s, many U.S. voters have reacted defensively against the racial, cultural, and language diversity brought by rising levels of immigration. A nationwide campaign for "the legal protection of English" has led to the passage of 23 state laws designating English as the sole language of government.⁽²⁾ Immigrant children's progress in acquiring English is now regarded as a matter of urgency, not only by many Anglo-Americans but also by a significant number of immigrant parents. Hence the growing popularity of nostrums like "structured immersion" and "sheltered English," whose enthusiasts promise short-cuts to English proficiency. Conversely, bilingual approaches that feature a more gradual transition to the mainstream are vulnerable to legislative restrictions. In addition to Proposition 227, bills have been proposed in various states and localities, as well as the U.S. Congress, to impose arbitrary time limits on a child's enrollment in bilingual education (or, in some cases, any special program to address limited English proficiency). 

To understand how we arrived at this juncture, it is necessary to analyze the historical roots of today's language attitudes. Ethnic diversity is hardly a recent phenomenon in this country. Nor is bilingual education. How have Americans thought about and coped with these issues previously? How have current policies on language-minority education evolved? How are future ones likely to be determined? 

Deconstructing Title VII
Let's begin by considering our original question. Was the Bilingual Education Act (also known as Title VII of the Elementary and Secondary Education Act) intended as 

• an anti-poverty initiative to overcome the educational disadvantages of language-minority students – i.e., to remedy the problem of limited English proficiency?
• an anti-discrimination measure to open up the curriculum for LEP students – i.e., to guarantee their right to equal educational opportunity?
• an experiment in multicultural education to foster bilingualism – i.e., to develop linguistic and cultural resources other than those of the dominant society?

Ruíz's orientations can help to illuminate the assumptions and implications of alternative language policies. For example, language-as-problem, by focusing on students' language disability, is consistent with a quick-exit pedagogy (bilingual or otherwise) that places the rapid acquisition of English ahead of other academic goals. By contrast, language-as-resource, by focusing on students' language ability in a minority tongue, tends to support a late-exit enrichment model that continues native-language instruction after students are proficient in English. 

As ex post facto descriptions, however, Ruíz's categories are less useful in explaining causality – that is, in analyzing the political and ideological factors that go into language policy decisions. Orientations in language planning, elaborated in "pure" form and focusing on sociolinguistic issues, may accurately summarize the policy alternatives as understood by experts in the field. Yet rarely do they correspond to the interests of contending factions or to the actual terms of political debate, which are never pure; usually they extend well beyond the realm of language. In short, orientations toward language per se are rarely determinant in policy decisions about language. This becomes evident in tracing the legislative history of Title VII. 

Political momentum was strong from the outset, as 37 different bilingual education bills were introduced in the 90th Congress. Throughout 1967, a series of House and Senate hearings showcased the educational problems of LEP children and elicited virtually unanimous support for a solution involving bilingual instruction. Disagreements were confined to secondary issues, such as whether to cover all LEP students or just Spanish speakers. The witness lists included academic researchers, language educators, school administrators, teachers, psychologists, social workers, elected officials, and representatives of Hispanic, Asian American, and American Indian organizations.⁽³⁾Some experts recommended bilingual education as a remedy for LEP students' "linguistic handicap" and resulting "educational problems." Others focused on the bill's potential to develop needed language resources, Spanish skills in particular. Many witnesses cited both objectives, describing them as educationally compatible. (Although the theme of language-as-right was barely detectable in deliberations over Title VII, that would soon change with a spate of litigation brought by language-minority parents.) José Cárdenas, a veteran educator from San Antonio, recalls that neither he nor his fellow experts worried about a contradiction between the "transition" and "maintenance" goals of bilingual instruction (Crawford 1992). These terms – yet to be coined in 1967 – were the product of political, not pedagogical, necessity.

The most substantive, albeit brief, debate on the goals of the bill came on the Senate floor (Congressional Record 1967). Joseph Montoya of New Mexico urged his colleagues: "We must take advantage of the language pluralism that exists in the Southwest. But it must be constructive pluralism. Comprehensive bilingual education programs are, to my way of thinking, one way we can give to all [Spanish-speaking students] the best of both worlds in terms of language, culture, and cooperation in daily life" (p. 35053). Frank Lausche of Ohio was less enthusiastic about "the Federal Government pouring in ... money" to help maintain minority tongues. A native speaker of Slovenian, he recalled that "I went to a grammar school where they taught English. They did not teach me Slovenian in order to learn English [sic]." He also worried about the precedent: "What are we to do if there is a Hungarian neighborhood in Toledo that finds it wants Hungarian taught in its schools?" (p. 34702). The bill's chief sponsor, Ralph Yarborough of Texas, sought to finesse the differences by emphasizing transition while leaving the door ajar for maintenance: 

It is not the purpose of this bill to create pockets of different languages throughout the country. It is the main purpose of the bill to bring millions of school children into the mainstream of American life and make them literate in the national language of the country in which they live: namely, English. Not to stamp out the mother tongue and not to make their mother tongue the dominant language, but just to try to make these children fully literate in English, so that the children can move into the mainstream of American life. (p. 34703) 

Ambiguity served Senator Yarborough's purposes. In 1967, the political universe was perfectly aligned to create an anti-poverty program serving Hispanic Americans, whose needs had thus far received little attention from the Great Society. Mexican American educators and the National Education Association (1966) had recently highlighted the plight of Spanish-speaking students, "the invisible minority." Yarborough, a populist Democrat, enlisted in the "bilingual movement" at the NEA's Tucson Conference in the fall of 1966. Senator George Murphy, a conservative California Republican, also endorsed the idea, noting that Governor Ronald Reagan had recently signed legislation repealing his state's mandate for English-only instruction. Still there was no time to lose. Urban riots and a costly war in Southeast Asia were beginning to spoil the Johnson Administration's appetite for social spending. Indeed, Yarborough had to twist arms to get its support for a new "title" of the Elementary and Secondary Education Act. (The Administration initially favored funding bilingual approaches through existing programs.) Who knew when this opportunity would come again? Why risk it by raising sensitive matters like assimilation and pluralism? Better to pass a bilingual education bill today and clarify its goals at some future date. 

As political strategy, Senator Yarborough's approach is hard to fault. As policymaking, it left many loose ends. In particular, the unresolved question of goals would haunt Title VII for years to come. Reflecting on the legislative process long after the fact, many of the key players (including Yarborough) agreed that the law was conceived as an experiment not in language policy but in education policy, designed to tackle a problem of underachievement in which language happened to play a role (Croghan 1997). Conscious or not, the federal government's intervention on behalf of bilingual instruction was unprecedented and far-reaching. What did it mean? The program's administrators, members of Congress, school personnel, academic researchers, and the parents of LEP children all cherished their own interpretations. 

The Office of Education included the following advice in its 1971 instructions for Title VII grant applicants: "It must be remembered that the ultimate goal of bilingual education is a student who functions well in two languages on any occasion." This was hardly the consensus view on Capitol Hill. Congressional committee members made it clear that "we were in there to overcome [students'] 'bilingual problem,'" Albar Peña, the program's first director, recalled two decades later. "There was an obsession that if they were not English-speaking at the end of the first grade that the world would come to an end" (quoted in Crawford 1992, p. 85). Appropriations for Title VII nevertheless remained modest – only $7.5 million in 1969. Although funding increased to $45 million by 1974, it was enough to support a mere 211 local programs (Crawford 1995). 

As state legislatures began repealing English-only school laws and authorizing native-language instruction, they showed a similar ambivalence. In 1971, Massachusetts became the first state to require "transitional bilingual education" under certain circumstances – and the first to use the term – but its definition of the program omitted any mention of goals (Mass. Gen. Laws, Title XII, Chap. 71A). A similar law, adopted two years later in Illinois, articulated the purpose of transitional programs: "to meet the needs of [LEP] children and facilitate their integration into the regular public school curriculum" (Ill. Ann. Stat. Chap. 122, Art. 14C). By the mid-1970s, more than a dozen states had enacted bilingual education statutes; none drew sharp lines of demarcation between transition and maintenance. 

Educators, for their part, continued to see the two goals as compatible. According to the AIR report (Danoff et al. 1977-78), a nationwide study of Title VII's impact, 86 percent of local bilingual programs retained Spanish-speaking children even after they were deemed fluent in English. On the other hand, 50 percent of "bilingual" teachers lacked proficiency in the native languages of their students – casting doubts on whether Title VII was doing much to promote fluent bilingualism. Amid the furor over the first finding, however, the second was largely ignored. Critics charged the Office of Education with flouting both the melting-pot tradition and the intent of Congress by failing to "mainstream" children as quickly as possible (Epstein 1977). The language-as-resource approach was condemned as diametrically opposed to the goal of assimilation. In addition, AIR's mediocre report card for Title VII – "no consistent significant impact" on achievement – led opponents to question the program's effectiveness. This marked the first serious opposition to the bilingual experiment. Under the leadership of Senator S. I. Hayakawa of California, it would soon expand into an English-only movement seeking to restrict most uses of minority tongues by government (Crawford 1992).

In reaction to the controversy, Congress voted in 1978 to restrict federal support to transitional bilingual education (TBE) programs. Henceforth the native language could be used only "to the extent necessary to allow a child to achieve competence in the English language" (P.L. 95-561). While this statutory restriction was eased in 1984, for another decade only a tiny portion of federal funds flowed to maintenance – now known as "developmental bilingual education" (DBE). Nevertheless, critics successfully portrayed Title VII as a program that emphasized the native language and "ethnic pride" at the expense of English. Led by the Reagan Administration's secretary of education, William J. Bennett, they advocated "local flexibility" for districts to try English-only alternatives such as "structured immersion" (Bennett [1985] 1992). In response, defenders insisted that bilingual education was the most efficient solution to the problems of limited English proficiency and academic underachievement.

Thus, during the 1987-88 reauthorization of Title VII, the debate involved means, not ends. Both sides embraced the language-as-problem orientation, which proved to be consistent with diametrically opposed policies for educating LEP students. Congress struck a compromise, diverting up to 25 percent of annual appropriations from bilingual to "special alternative instructional programs" (SAIPs). Far less was made available for developmental programs, despite their promising academic outcomes and success in cultivating bilingualism. 

Language-as-resource, while gaining hegemony among educational researchers and practitioners, was marginalized politically by the new terms of the debate. With any form of native-language instruction now condemned as a distraction from English – in effect, Title VII's critics portrayed TBE as a language-maintenance approach – the program's defenders tended to downplay its potential to develop bilingual skills. One exception was the Miami-based Spanish American League against Discrimination (SALAD). Troubled by Bennett's assimilationist rhetoric, in 1985 the group countered with the slogan "English Plus." While English is essential in the U.S.A., SALAD argued, to succeed in a global economy children need to learn more than one language, and DBE can be an effective means to that end. This philosophy was soon put into service as a programmatic alternative to the broader English-only campaign (Combs 1992). Again, however, its appeal has been limited mainly to language educators. English Plus has found few legislative champions outside of the Latino and Asian American caucuses (e.g., Serrano 1997).⁽⁵⁾

The Impact of Lau v. Nichols
Meanwhile, bilingual education had also become a civil rights issue. For militant Chicanos in particular, it emerged as a key demand – in no small part because of the suppression of Spanish in schools throughout the Southwest, a symbol of racial oppression. For La Raza Unida Party, which won control of the Crystal City, Texas, school board in 1970, bilingual education became a matter of self-determination, an assertion of ethnic pride, and a pedagogical approach to which high hopes were attached (Shockley 1974). Wherever language minorities were concentrated, school officials began to feel community pressure to adopt bilingual methods. Several districts became the target of lawsuits by parents, who argued that failure to address students' language needs meant failure to provide them an equal opportunity to learn. As Mexican American students staged boycotts to protest their treatment by the schools in cities like Los Angeles, bilingual education was frequently among their demands. 

In 1970, the U.S. Department of Health, Education, and Welfare responded with a memorandum on school districts' obligations toward LEP students. Under the Civil Rights Act of 1964, it warned, "sink or swim" was no longer permissible. Public schools would now have to take "affirmative steps" to help students overcome language barriers. Moreover, they would have to provide such assistance without segregating children on dead-end tracks of remedial education. 

Few districts paid much attention. In San Francisco, for example, administrators insisted that by giving LEP students the identical education offered to all students – i.e., instruction via the English language – schools were discharging their obligation to provide an equal education for all. Federal district and appeals courts agreed, rejecting a lawsuit brought on behalf of Chinese-speaking students and permitting sink-or-swim instruction. While this position may seem myopic today, in the early 1970s it was widely shared. The issue of desegregation had so dominated the civil rights struggle that any suggestion of "separate but equal" education was suspect even to progressives. Unlike African-Americans fighting exclusion, the language-minority plaintiffs in the San Francisco case sought to establish the principle that children with different needs are entitled to different treatment by the schools. They cited the words of Justice Frankfurter a generation earlier: "There is no greater inequality than the equal treatment of unequals" (Steinman 1971).

The U.S. Supreme Court embraced the parents' reasoning in a unanimous opinion. Its ruling in Lau v. Nichols (1974), while limited in scope, remains the major legal precedent on language rights in the U.S.A. – or, more precisely, on the obligation of government to provide appropriate language accommodations to safeguard (other) fundamental rights. Writing for the court, Justice Douglas reasoned that 

there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for 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. Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired those basic skills is to make a mockery of public education. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful. (p. 565) 

No specific remedy is urged upon us. Teaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instructions to this group in Chinese is another. There may be others. Petitioner asks only that the Board of Education be directed to apply its expertise to the problem and rectify the situation. (p. 563)

For the first time, large numbers of school districts were induced to pay attention to the language needs of LEP students and to serve them through bilingual education. Before the mid-1970s, few had done either of these things – which required a thorough transformation of business-as-usual – without the carrot of federal or state subsidies. Now came the stick, as the federal Office for Civil Rights (OCR) patrolled school systems with significant language-minority enrollments. Districts required to adopt Lau Plans, along with others who acted to pre-empt federal intervention, tended to accept the new pedagogy grudgingly at first. Over time, however, most came to regard bilingual instruction as, if not a panacea, at least a substantial improvement over sink-or-swim. As pedagogical outcomes improved, community support usually increased. 

Yet prescriptiveness also bred resistance. Bilingual education suddenly became a point of conflict between federal authorities and local school boards, a cause célèbre for opponents of Big Government – in short, a natural issue for conservatives of the period. First, the Lau Remedies were attacked as illegitimate because, as quasi-formal "guidelines," they had been issued without an opportunity for public scrutiny or comment. A federal court agreed. Labeling the rule-making process illegal, it ordered the Carter Administration to develop formal Lau Regulations. When the new rules finally appeared, shortly before the 1980 election, they were greeted with near-unanimous opposition from the education community (other than the National Association for Bilingual Education and its affiliates).⁽⁶⁾ Ronald Reagan, who had made attacks on federal red tape a major campaign theme, withdrew the Lau Regulations shortly after winning the presidency.⁽⁷⁾ As a result, since 1981 OCR has declined to articulate a preference for any pedagogical approach.⁽⁸⁾

Second, the Lau Remedies placed a new burden of proof on the federal government. Mandating bilingual instruction, rather than merely encouraging local school districts to try it, created pressure to offer "conclusive" evidence of its pedagogical benefits. A U.S. Department of Education review of the research literature, initiated by the Carter Administration, found mixed results at best. Baker and de Kanter (1983) concluded that "no consistent evidence supports the effectiveness of TBE. ... An occasional, inexplicable success is not enough reason to make TBE the law of the land" (pp. 50-51). The report also speculated that alternative, all-English approaches might be promising. Yet the Baker-de Kanter study itself came under criticism for its methodology (e.g., Willig 1985). Many of the studies under review involved programs that were poorly designed and implemented, quick-exit models rather than the developmental approaches later found to be superior (Ramírez et al. 1991). The authors' claims for the promise of "structured immersion" were based on studies of Canadian programs (bilingual ones, at that) tailored to the needs of students who had little in common with language-minority students in the United States. Despite the study's limited credibility among researchers, however, it received considerable play in the news media. The debate lent credence to the argument, raised by Secretary of Education William Bennett (among others), that the experts are "divided" and thus the scientific evidence on bilingual education remains too "inconclusive" to support Title VII policy. 

Hence the political paradox of bilingual education. It might well have remained a marginal experiment had it not been imposed on school districts via the Lau Remedies and assorted court orders. Today's most successful instructional models for LEP students might never have been developed; at best, they would likely be confined to a tiny number of schools. At the same time, however, federal and state mandates for bilingual education provoked a backlash and a fierce debate over the program's effectiveness. Critics charged that, however "well-intentioned," Title VII had failed to fulfill its promises – citing the persistence of high failure and dropout rates among Latino students in particular. Thus its value as a civil-rights remedy has come into question. 

Increasingly, English-only advocates have appropriated the language-as-right approach for their own purposes. Chávez (1991) argues that, if bilingual education segregates LEP children from the mainstream and discourages them from learning English, then it must limit their educational opportunities. Proposition 227, the so-called "English for the Children" (1997) initiative, made a similar pitch to California voters: 

(a) WHEREAS the English language is the national public language of the United States of America and of the state of California, is spoken by the vast majority of California residents, and is also the leading world language for science, technology, and business, thereby being the language of economic opportunity; and 

(b) WHEREAS immigrant parents are eager to have their children acquire a good knowledge of English, thereby allowing them to fully participate in the American Dream of economic and social advancement; and 

(c) WHEREAS the government and the public schools of California have a moral obligation and a constitutional duty to provide all of California's children, regardless of their ethnicity or national origins, with the skills necessary to become productive members of our society, and of these skills, literacy in the English language is among the most important; and 

(d) WHEREAS the public schools of California currently do a poor job of educating immigrant children, wasting financial resources on costly experimental language programs failure over the past two decades is demonstrated by the current high drop-out and low English literacy levels of many immigrant children; and 

(e) WHEREAS young immigrant children can easily acquire full fluency in a new language, such as English, if they are heavily exposed to that language in the classroom at early age. 

(f) THEREFORE it is resolved that: all children in California public schools shall be taught English as rapidly and effectively as possible. (§300) 

The question becomes one of means: How should these goals be pursued? Proposition 227 requires that "all children in California public schools shall be taught English by being taught in English." The initiative statute prohibits most uses of native-language instruction for LEP students and prescribes programs of "sheltered English immersion during a temporary transition period not normally intended to exceed one year" (§305; emphasis added). ⁽⁹⁾

Will this sweeping mandate serve the interests and safeguard the rights of English learners? Or will it do precisely the opposite? Laypersons are being asked to decide such questions not only in California but in other states as well – judgments that require sorting through complex and contradictory information. One might as well ask the electorate to mandate a treatment for AIDS or to select the design of the next space station.⁽¹⁰⁾ How schools should teach LEP students has become a highly technical issue. It has also become a highly political one, which invites simplistic and demagogic answers. 

Again, the paradox: In its path to acceptance, bilingual education followed the course of numerous reforms of the 1960s. Conceived as an innovative approach to a social problem, it was taken up as a demand by ethnic militants and parents' organizations, supported with federal funds, accepted by school boards, studied by researchers, embraced by practitioners, and sustained by a corps of experts, lawyers, and bureaucrats. In short, it became institutionalized. At the same time, however, these currents were eroding its political support. To the extent that bilingual education has become the domain of professionals, it is less of an activist cause, less of a community concern, less of a social movement. 

Government agencies, educators' associations, and school districts have done little to explain the pedagogy to outsiders, including parents – many of whom are new to the United States and have no memory of earlier struggles for bilingual education. The broader public, never clear about the rationale for native-language instruction, is increasingly skeptical of its results. With the rise of English-only activity, assimilationist rhetoric has won a growing acceptance. Now it is making inroads into language-minority communities. Polled by the Los Angeles Times on whether they would favor a ballot initiative to "require all public school instruction to be conducted in English and for students not fluent in English to be placed in a short-term English immersion program," 84 percent of Latinos answered in the affirmative, as compared with 80 percent of all voters (Barabak 1997).⁽¹¹⁾

There is no question that the parents of LEP students continue to feel strongly about the civil rights goals of bilingual education. Yet it is also clear that, in the 1990s, language minority communities are less vocal on its behalf than in the 1970s. Defending the program's effectiveness has become largely a job for professionals. Whether bilingual instruction provides an antidote for school failure, whether it teaches English effectively, whether it safeguards children's rights under Lau ... these questions are usually left to specialists who can explain the complexities of educational research. Few members of the public seem interested in such explanations, which contradict cherished myths on how languages are learned and how immigrant ancestors "made it" without special help. 

Moreover, the voters exhibit a growing impatience with government programs that benefit immigrants and racial minorities. By approving Proposition 187 in 1994, Californians instructed school officials to hunt down and expel the children of "illegal aliens." With Proposition 209 two years later, they chose to outlaw all forms of affirmative action. In 1998, disregarding the advice of professionals in the field, they voted to outlaw bilingual education. Meanwhile, Latino and Asian American politicians, who once rallied liberal supporters behind programs serving immigrants, now sense ambiguous feelings among their own constituents. Hence their wariness about countering attacks like Proposition 227. 

Thus the political viability of bilingual education becomes increasingly tenuous to the extent that it relies on expert opinion. This is true not only because experts are routinely divided on pedagogical matters. In addition, many researchers today are sensitive to the charge that their work has become "politicized"; so they are more guarded in expressing support for bilingual approaches than they were in the 1980s. A recent report by the National Research Council strived for even-handedness, noting the benefits of both native-language and English-only instruction, even though the panel comprised several prominent enthusiasts of "additive bilingualism" (August and Hakuta 1997).⁽¹²⁾ Bilingual teachers and administrators continue to champion their programs without equivocation. Yet such views are easily dismissed as expressions of narrow self-interest – a perennial line of attack by conservative critics (see, e.g., Thernstrom 1980, Chávez 1991). 

Without a broader and firmer political base, the future of bilingual education would appear uncertain, to say the least. Where is the needed support to be found? The most obvious undeveloped sources are language-minority families and communities. What has kept them from playing a larger advocacy role? Several factors have already been noted: professionalization of bilingual programs, poor communication by the schools, timidity among elected officials, and immigrants' inexperience in a new political system. Most important perhaps is the peculiar tradition of language rights – or lack thereof – in the U.S.A. 

Language Rights, American Style
In most of the world, language rights are understood in two ways: "(1) the right of freedom from discrimination on the basis of language; and (2) the right to use your language(s) in the activities of communal life" (Macías 1979, p. 41). International treaties to which the United States is a signatory, such as the United Nations Charter and the International Declaration of Human Rights, recognize either one or both varieties. Such treaty obligations make these language rights a part of U.S. law – at least theoretically. Nevertheless, they remain largely foreign to our legal traditions.

Americans have frequently addressed the language needs of its citizens on political, economic, or moral grounds. During the 19th century, for example, a dozen states and territories authorized bilingual education in public schools; elsewhere it was often provided without official sanction (Kloss 1977). Yet there were no constitutional obstacles to terminating such policies and mandating English-only instruction, as most states chose to do during the World War I era. Some Hispanic advocates have argued that, under the 1848 Treaty of Guadalupe Hidalgo, Spanish-speakers are entitled to bilingual-bicultural education in the Southwest. In fact, the treaty makes no explicit mention of language rights and such interpretations have been rejected by U.S. courts (e.g., López Tijerina v. Henry 1969). 

Language rights exist in the United States only as a component of other rights, in particular the 14th Amendment guarantee of "equal protection" under law without regard to race or national origin. Lau v. Nichols (1974) was decided on similar grounds, relying on Title VI of the Civil Rights Act of 1964. Taking another approach in Meyer v. Nebraska (1923), the Supreme Court struck down restrictions on foreign-language instruction as an unconstitutional violation of "due process" guarantees. 

While this court has not attempted to define with exactness the liberty thus guaranteed ... without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. (p. 402) 

Significantly, despite the breadth of constitutional "liberties" it found to be guaranteed by implication, the Meyer court said nothing about community rights to use and maintain a language other than English. Its omission is consistent with the Anglo-American tradition of common law, which almost always endows rights to individuals rather than to groups. This has tended to discourage the recognition of language rights, which have limited meaning outside a collective context. For example, the Lau decision defines a LEP student's right to special assistance designed to overcome the language barrier and make academic instruction comprehensible – not an ethnic group's right to perpetuate its language via vernacular (i.e., native-language) education. Restricted in this way, Magnet (1990) argues, language rights are ultimately meaningless: 

The right to utilize a language is absolutely empty of content unless it implies a linguistic community which understands the speaker and with whom that speaker can communicate. ... Language rights are collective rights. They are exercised by individuals only as part of a collectivity or a group. Legal protection of language rights, therefore, means protection of that linguistic community, that community of speakers and hearers, vis-a-vis the larger community which would impinge upon it or restrict its right as a group to exist. (p. 293; emphasis added)

Nevertheless, American linguistic minorities have succeeded in maintaining distinct communities, sometimes for several generations, with varying degrees of toleration or accommodation from authorities. Bilingual and vernacular education were widely, if inconsistently, available from the Colonial Era until World War I. In 1900, contemporary surveys reported that 600,000 elementary school children, public and parochial, were receiving part or all of their instruction in the German language. This figure – which Kloss (1977) regards as overly conservative – was equivalent to 4 percent of the elementary school population at the time,⁽¹³⁾ probably larger than the proportion of children in all bilingual classrooms today.⁽¹⁴⁾

This era of accommodation ended following World War I, a period when speaking languages other than English, especially German, came to be associated with disloyalty to the United States. Such wartime fears strengthened a campaign to "Americanize the immigrant," especially in linguistic matters. This in turn had a major impact on the schools. By 1923, 34 states adopted laws banning native-language instruction and, in some cases, foreign-language teaching in the early grades (Leibowitz 1969). As a result, bilingual education largely disappeared until the early 1960s, when it was revived by Cuban exiles in Dade County, Florida. 

The Once and Future Politics of Bilingualism
While a thorough historical analysis is beyond the scope of this paper, for our purposes the key question is: What can be learned from for early American "traditions" of bilingual education that might be relevant to its present political plight? In particular, what were its ideological and political foundations before the modern era? 

First, it should be noted that bilingual and vernacular schools were often the product of practical necessity or local choice. Before the 20th century, fully English-proficient teachers were often unavailable in large expanses of the rural Midwest, New Mexico, southern California, Louisiana, and northern New England. Where language minorities commanded local majorities, they usually controlled their own education systems. The first public schools in the state of Texas, established by the municipality of New Braunfels in the 1850s, operated mostly in German (Kloss 1977). At about the same time, the Cherokee Nation of Oklahoma established a system of 21 bilingual schools and two academies, achieving higher literacy rates in English and Cherokee than the neighboring states of Arkansas and Texas could manage in English alone (U.S. Senate 1969). 

Bilingual education also gained a foothold in major cities including St. Louis, Indianapolis, Milwaukee, and Cincinnati, which ran extensive German-English programs for several decades. School systems made conscious decisions to accommodate the wishes of immigrant parents. More than 5 million Germans arrived between 1830 and 1890 and most settled in the Ohio and Mississippi valleys. Notwithstanding their religious, cultural, and political diversity, these immigrants were united on the value of German-language instruction as the key to a treasured heritage. For parents, language maintenance was usually the chief goal of bilingual instruction. 

More important, school officials saw themselves in competition with parochial schools for immigrant students. Providing minority-language instruction became a way to entice parents to support the Common School. It was also conceived as a way to bring these groups into the mainstream of American life. William Torrey Harris, school superintendent in St. Louis and later U.S. Commissioner of Education, saw no contradiction in fostering bilingualism and assimilation simultaneously. Like other educational leaders – and unlike most immigrant parents – he saw the primary goal of bilingual education as teaching American culture, including the English language, as efficiently as possible. His rationale, however, was more political than pedagogical. "If separate nationalities keep their own [Lutheran and Catholic] schools," Harris wrote in 1870, "it will result that the Anglo- and German-American youth will not intermingle and caste-distinctions will grow up." On the other hand, "if the German children can learn to read and write the language of the fatherland in the public schools, they will not need separate ones" (quoted in Schlossman 1983, p. 152).

Harris believed strongly in the public schools' mission to "Americanize the immigrant." Yet he differed from later promoters of this cause in his conviction that the process would proceed more efficiently by voluntary rather than coercive means. In St. Louis, his approach proved successful. After 15 years of German bilingual programs, the percentage of German American children attending the public schools had increased from 20 percent to 80 percent (Schlossman 1983). 

By offering bilingual instruction in St. Louis and elsewhere, schools recognized no language rights in the strict sense. Nevertheless, they paid homage to a strong tradition in American education: parents' prerogative to have a say in their children's schooling. However vaguely defined in legal terms, the right of parental choice has been revered as a political principle. Thus it has served at times as a powerful rallying cry for diverse groups of parents, including language minorities. In 1889, when German Americans learned that Wisconsin and Illinois had imposed English-only instruction on parochial as well as public schools, they put aside factional concerns, organized to defeat the ruling Republican Party at the next election, and soon repealed the legislation (Crawford 1992). In the 1960s, when Mexican Americans demanded an end to sink-or-swim neglect, they marshaled sufficient moral and legal authority to win bilingual education subsidies, court orders, and civil rights enforcement. 

Parent activism can only flourish, however, when armed with clarity of purpose. To the extent that the parents of LEP children are uncertain about the rationale for bilingual education and alienated from the professionals who control it, they will remain passive players in the public policy debate. A majority of these parents may continue to favor the program. But without mass goals and leadership to rally behind, there can be no "bilingual movement" to provide needed political support. Indeed, parents' passivity may be taken for acquiescence to anti-bilingual policies – as it was in California's approval of Proposition 227. 

If current trends continue, the consequences could be drastic: Bilingual educators find themselves increasingly isolated and hard-pressed to resist attacks. LEP students have fewer options, as many school districts limit access to native-language instruction and others convert to English-only models altogether. The nation's 30-year experiment with bilingual education, despite its success in many schools and its benefits to many children, is branded a failure in the public mind. A generation of experience and research is discarded, as the pedagogy is relegated to marginal status. 

The question for bilingual educators and advocates in the late 1990s is whether they can regain the confidence, understanding, and allegiance of their core constituency – language-minority communities – in time to rewrite this grim scenario. 

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Notes
1. Proposition 227 was adopted by a 61-39 percent vote. Immediately thereafter, the Mexican American Legal Defense and Educational Fund, Multicultural Education, Training and Advocacy, Inc., the American Civil Liberties Union and other advocates filed suit to block the initiative statute on civil-rights and constitutional grounds. A federal district judge in San Francisco declined, however, to order a preliminary injunction. Although the lawsuit continued, Proposition 227 took effect as scheduled on August 2, 1998.

2. Three states had done so previously. In 1998, after a ten-year battle, Arizona's Article XXVIII was struck down by the state's supreme court as a violation of the First Amendment. This left a total of 22 states with active Official English laws. 

3. Thernstrom (1980), a critic of bilingual education, claims: "The chairmen of the House and Senate committees did not call witnesses – in the sense of experts on the educational and political questions raised by the legislation – but (with few exceptions) lobbyists. Ethnic activists – mostly Hispanics – came to testify on the bill's necessity" (p. 6). In fact, only 26 of the 144 witnesses were lobbyists for community and advocacy groups; about half had Hispanic surnames. 

4. There was no separate recorded vote on bilingual education in either the House or the Senate. 

5. This situation may be changing, as Republicans begin to make overtures to Hispanic voters. A new English Plus resolution was introduced in 1998 by John McCain of Arizona and nine other Republican senators.

6. Among interest groups, the National Education Association was the only major exception. 

7. In a statement canceling the Lau Regulations, Terrel Bell, the new Secretary of Education, called them "harsh, inflexible, burdensome, unworkable, and incredibly costly" (quoted in Crawford 1995, p. 53). 

8. OCR has relied instead on the Castañeda standard for determining whether school districts are meeting their obligations toward LEP students (Crawford 1996). This three-part test was developed by a federal appeals court in interpreting the Equal Educational Opportunities Act of 1974. Reaffirming the Lau v. Nichols decision, the law requires school districts to take "appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs" (§1703[f]). More than vague "good faith" efforts are required, the court ruled in Castañeda v. Pickard(1981). A program serving LEP students must meet the following criteria:

• It must be based on "a sound educational theory," endorsed by one or more experts. 
• It must be "implemented effectively," with adequate resources and personnel. 
• After a trial period, it must be evaluated as effective in overcoming language handicaps. 

10. These examples are not entirely far-fetched, considering California's attachment to government-by-initiative. In early 1998, there were five measures certified for the June ballot and 43 others being circulated for the November ballot, ranging from a proposal to legalize casino gambling to an effort to ban the sale of horse meat for human consumption (Los Angeles Times, January 21, 1998). 

11. In fairness, it should be noted that this question poorly summarized the provisions of the "English for the Children" initiative, such as neglecting to mention its ban on bilingual education programs. Later polls showed contradictory results – e.g., Spanish-language media in Los Angeles found that 88 percent of parents with children enrolled in bilingual programs were satisfied with the results. The major exit poll on June 2, concluded that Latinos had rejected Proposition 227, 63-37% (Los Angeles Times, June 4, 1998). Yet even this level of support is substantially higher than in the past. 

12. Several panel members had been part of the Stanford Working Group on Federal Programs for Limited-English-Proficient Students, which influenced the Clinton Administration to expand support for developmental bilingual education (Hakuta et al. 1993). 

13. Kloss (1977) argues that one million – or 7 percent – would be a more reasonable figure.

14. Unfortunately, today's data in this area have barely improved since 1900. Based on reports from 48 states and the District of Columbia, the U.S. Department of Education estimates that 3,018,042 million students in public and private K-12 schools were limited-English-proficient in 1994-95 (Macías and Kelly 1996). These counts vary in reliability, especially for private school enrollments. Information about the educational services provided to LEP children is especially fragmentary. California, the one state that conducts a thorough school-by-school Language Census each year, reports that only 30 percent of LEP students were enrolled in fully bilingual classrooms in 1994-95. Extrapolated nationwide, that proportion would yield an estimate of 905,413 U.S. students in bilingual education – or less than 2 percent of the total K-12 enrollment of 46,930,614. 

This article was published in Social Justice 25, no. 3 (Fall 1998). It will also appear as a chapter in Carlos Ovando and Peter McLaren, eds., The Politics of Multiculturalism and Bilingual Education: Students and Teachers Caught in the Cross-Fire (McGraw-Hill, 2000).