The principal or superior right in the United States is the Constitution of the United States. The framework of the U.S. government – three branches, equal in power, with unique responsibilities – derives from the first three articles of the Constitution. The articles of the Constitution are followed by amendments detailing the rights of all persons who fall within the jurisdiction of the law, such as the right to religious freedom or the prohibition of slavery. The Tenth Amendment to the U.S. Constitution, which states that all powers not explicitly granted to the federal government in the Constitution are reserved to the states, is important to this discussion. Because education is not part of the explicitly enumerated tasks or powers assigned to the federal government, the Tenth Amendment states that education is the domain of the states. Ruíz, R. (1984). Orientations in language planning. NABE Journal, 8(2), 15-34. Our framework for the Castañeda case study is based on language policy planning and is based on the work of Ruíz (1984) Orientations in Language Planning and Lo Bianco and Alienis (2013) Framework of Intention, Rhetoric and Implementation in Language Planning. Both theories help to examine the case and the complex social arena in which it is implemented and interpreted at the national and local levels.
In Lau, about 1800 non-English-speaking Chinese students filed a lawsuit against California`s San Francisco Unified School District (SFUSD) for failing to provide them with equal educational opportunities, in violation of the Fourteenth Amendment. Although a decision was made by the lower courts, the case was challenged in the U.S. Supreme Court. The Supreme Court has concluded that basic English skills are at the heart of what schools teach. They noted that requiring students to acquire this mastery before they can participate in educational programs is „a travesty of public education” (Nichols, 1974). Justice Douglas ultimately ruled that the school district violated Title VI, which prohibits discrimination based on race, color or national origin in any program receiving federal funding. In retrospect, Lau was particularly forward-thinking at the time the case was decided, acknowledging that students who did not understand English were essentially deprived of a meaningful education. In 1984, Ruíz proposed a heuristic to study different orientations related to languages and language planning.
His work was based on the sociology of language and described the impact of language planning on students, families, and minor communities in the United States. Ruíz defined linguistic orientations as „a set of dispositions towards language and its role, as well as towards languages and their role in society” (p. 16). Although he did not mention Castañeda in his description of the guidelines, it should be noted that several important legal decisions, including Castañeda, concerning the language rights of bilingual students took place before and during Ruiz`s drafting of the language planning guidelines (del Valle, 2003; Wright, 2019). Teachers face the language dilemma to use in primary school, partly because students are unable to understand and communicate English or Swahili, or because the teacher is unable to speak in the language of the catchment area. The most common practice of teachers is to use a mix of mother tongue, Kiswahili and English as a letter of intent in the lower cycle of primary school. In Lau, the Supreme Court explicitly stated that „discrimination is prohibited, which has this effect, even if there is no targeting.” Lau v. Nichols, 414 U.S. 563, 568 (1974).
In other words, even unintentional discrimination is illegal under federal anti-discrimination laws. In Lau, it was discrimination of national origin, a class protected by the United States Constitution. Two years later, however, the Washington court ruled that different effects were not sufficient to establish a violation of the equality clause. Washington v. Davis, 426 U.S. 229, 232 (1976). Two years later, the Bakke Court ruled that Title VI was consistent with the equality clause, i.e. that Title VI was no more restrictive than the Constitution. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
While Lau`s holding company had banned various effects regardless of intent, Washington and Bakke`s decisions essentially nullified this involvement. According to Bakke, schools only had to prove that the various effects on protected classes, such as race, gender and national origin, were not intentional to avoid rights to equal protection or Title VI. Renowned Kenyan author Ngugi wa Thionâgo argued that mother tongue is the most effective tool to capture one`s experiences, celebrate one`s humanity and claim one`s place in the world. Should we then continue to suppress our local languages in favor of English and Swahili in our school system? Ricento, T. (2005). Problems with the „language as a resource” discourse in the promotion of heritage languages in the United States. Journal of SocioLinguistics, 9(3), 348-368. Although Ruíz (1984) did not specifically mention Castañeda when he postulated language orientation as a right, the fact that the case seeks to provide clues as to what constitutes appropriate measures for LEs whose language was considered problematic for the school district suggests that Castañeda pursues language orientation as a problem.
Here, language as a problem is reconciled with EL students, i.e. speakers of minority language, as a problem. Here, however, we have pointed out two limitations of this position. First, courts are structurally highly suspect mechanisms by which legal rights can be considered or enforced. It is important to note that after Castañeda, there were other interpretations of EL students` language rights. As noted earlier, in Horne, the U.S. Supreme Court significantly undermined Castañeda, for example, by stating unequivocally that „reasonable measures” do not require „alignment of scores between native and non-native speakers on English language tests” (Horne v. Flores, 557 U.S. 433, 467 [2009]).
Faltis, C., & Arias, M. B. (2012). Research-Based Reform in Arizona: What Evidence Matters for the Application of the Castañeda Test to Structured English Immersion Models? In M. B. Arias & C. Faltis (Eds.), Implementing educational language policy in Arizona: Legal, historical, and current practices in SEI (pp. 21-38). Multilingualism matters. Lo Bianco (2021) notes the imperfection of language policy, i.e. policies are often not issued or received as intended, and notes that „while some degree of political failure is common in all areas of political activity to make language an object of political attention, it contains some particular characteristics that characterize language policy as bad and particularly difficult” (2021, The malice of language policy planning may lie in the intention of decision-makers to shape individual and societal attitudes towards languages, language use and language users, and to judge languages as inferior or superior (Cooper, 1989; Fishman, 1999).
Together, these two frameworks provide a clearer perspective through which language policy and planning can be considered in an ecological system. We describe such a system below using the example of the US state of Florida. The linguistic ecology of the state of Florida shows the tensions that arise when federal policies are put into practice, albeit with good intentions, at the state and local levels. Castañeda`s intent was essentially to clarify EEOA Section 1703(f) by clarifying what „appropriate measures” mean for EL students` educational programs, resources, and teacher training.