Editorial introduction: revisiting and (re)imagining Castañeda v. Pickard through critical lenses

Introduction

The year 2021 marks the 40th anniversary of the landmark Castañeda v. Pickard (1981) federal court case in the United States. The Castañeda case was originally and unsuccessfully tried in the United States District Court in the Southern District of Texas in 1978. The plaintiff argued that there was no way to sufficiently measure the Texas school district’s approach to overcoming the language barrier of the two children. In 1981 the United States Court of Appeals for the Fifth Circuit ruled in favor of the plaintiff, and as a result, the court decision established a three-prong test for determining how bilingual education programs would be held responsible for meeting the requirements of the Equal Educational Opportunities Act of 1974.

The purpose of this special issue of Language Policy is to critically (re)examine and reimagine Castañeda v. Pickard at the national, state and local level to promote and enhance bilingual education and the civil rights of bilingual children. At the 40th anniversary, it gives us not only an opportunity to reflect on the past using Castañeda as an analytical focus, but also critically examine the present condition of bilingual education and to theorize and explore what is needed to (re)imagine high-quality bilingual programs in the United States. As such, this issue contributes to furthering the theoretical understanding of language policy through various critical theoretical lenses that interrogate the Castañeda legacy.

In what follows, we begin by discussing Castañeda in the context of language civil rights. Then, we address early gains and contemporary setbacks of Castañeda, and situate Castañeda in language policy theory with inclusion of key policy recommendations that we hope will help inform bilingual education language policy. We close by introducing the articles in this special issue.

Castañeda in the Context of Language Civil Rights

The population of students coming to U.S. schools with a primary language other than English has been the focus of federal and state level policy attention for over 5 decades. At the national level, both the federal courts and congress have addressed the “rights and obligations” of these students to equal opportunity in the U.S. K-12 schooling enterprise. Even as this special issue provides its major focus on one important legal adjudication, i.e. Castañeda v. Pickard, this significant federal court edict must be contextualized within this long standing national, state and local policy attention to these students. The link between litigated “rights” of these students and related national and state policies is very direct. Policies derived from elected bodies would not exist with a court decision that made it clear that the schools had an obligation to address the inequities generated and perpetuated by education endeavors in public schools. These endeavors, the federal court first recognized, had misrecognized the inadequacy of teaching practices that did not take on board the non-English proficiency attributes of its students. This is seen in the so-called Lau decision.

Lau Decision, Equal Educational Opportunities Act, and Civil Rights Act

The 1974 United States Supreme Court decision of Lau v. Nichols is the landmark case that established language minority status as a claim for discrimination and indicated that limited English Proficient Students (LEP) must be provided support to access the curriculum. It involved twelve Chinese students, significantly including both immigrant (non-citizen) and non-immigrant (citizen) students. In 1970, the district had identified 2,856 such students. Of this number, more than half received no special instruction, despite the fact that the district had initiated a pullout program in response to parents’ requests. The district maintained that it had made attempts to serve this population of students and the first federal court decision agreed with the district. However, in the appeal of the decision to the highest court in the land, the Supreme Court’s majority opinion ruled in favor of the students and parents (Garcia, 1993).

The opinion relied on statutory (legislative) grounds, and avoided any reference to constitutional determination. However, plaintiffs had argued that the equal protection clause of the Fourteenth Amendment of the U.S. Constitution was relevant to the case. The decision tied a student’s right to special educational services to Title VI of the 1964 Civil Rights Act, which prohibits discrimination on the grounds of race, color, or national origin in programs or activities receiving federal financial assistance. Lau does not articulate that children must receive a particular educational service, but instead supports the mandate that districts take “affirmative steps to rectify the language deficiency in order to open its instructional program.” Avoidance on the part of the Courts to specify a particular remedy has plagued efforts to identify the essential components of equity with regard to the education of English Learners (ELs, hereafter), an aspect we turn to below.

Castañeda v. Pickard: Articulating a Standard for “Appropriate Action”

In the key Fifth Circuit decision of Castañeda v. Pickard (1981), the court interpreted Sect. 1703(f) of the Equal Education Opportunity Act of (1974) as substantiating the holding of Lau that schools cannot ignore the special language needs of students. The Equal Educational Opportunities Act of 1974 (EEOA) extended Title VI of the Civil Rights Act of 1964 to all educational institutions, not just those receiving federal funding. Section 1703(f) of the EEOA provides:

“No state shall deny equal educational opportunities to an individual on account of his or her race, color, sex, or national origin by - the failure of an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” (EEOA, 1974, § 1703(f))

The court then pondered whether the statutory requirement of the EEOA that districts take “appropriate action to overcome language barriers” should be further delineated. The plaintiffs urged on the court a construction of “appropriate action” that would necessitate programs that incorporated bilingual students’ primary language. The court concluded, however, that Sect. 1703(f) did not embody a congressional mandate that any particular form of remedy be uniformly adopted. If Congress wished to intrude so extraordinarily on the local districts’ traditional curricular discretion, it must speak more explicitly. This conclusion, the court argued, was buttressed by the congressional use of “appropriate action” in the statute, instead of “bilingual education” or any other educational terminology.

However, the court did conclude that Congress required districts to adopt an appropriate program, and that by creating a cause of action in federal court to enforce Sect. 1703(f) it left to federal judges the task of determining whether a given program was appropriate. While the court noted that Congress had not provided guidance in that statute or in its brief legislative history on what it intended by selecting “appropriateness” as the operative standard, it described a mode of analysis for a Sect. 1703(f) case:

• The court will determine whether a district’s program is “informed by an educational theory recognized as sound by some experts in the field or, at least, deemed a legitimate experimental strategy.” The court explicitly declined to be an arbiter among competing theorists. The appropriate question is whether some justification exists, not the relative merits of competing alternatives.

• The court will determine whether the district’s programs and practices are reasonably calculated to implement effectively the educational theory adopted.

• The court will determine whether the program, after operating long enough to be a legitimate trial, produces “results that indicate the language barriers are actually being overcome.” A plan that is initially appropriate may have to be revised if expectations are not met or if the district’s circumstances significantly change in such a way that the original plan is no longer sufficient. (p. 73)

As a result of Castañeda, it became legally possible to substantiate a violation of Sect. 1703(f), following from Lau, on three grounds: (a) The program which provides special language services to eligible language minority students is not based on sound educational theory; (b) the program is not implemented in an effective manner; or (c) the program, after a period of “reasonable implementation,” does not produce results that substantiate language barriers are being overcome so as to eliminate achievement gaps between bilingual and monolingual English-speaking students. It is obvious that these criteria allow a local school district to continue to implement a program with some educational theoretical support for a “reasonable” time before it will make judgments upon its “positive” or “negative” effects.

Furthermore, in the Castañeda decision, the court again spoke, reluctantly but firmly, to the issue of program implementation (Arias & Faltis, 2012). In particular, when a district adopts a particular educational theory, then the programs and practices must be afforded adequate resources and personnel. Implicit in these standards is the requirement that districts staff their programs with language minority education specialists, typically defined by state-approved credentials or professional course work similar to criteria used to judge professional expertise in other areas of professional education. But testing the Castañeda standards has been far from straightforward, as we shall discuss next.

Testing the Castañeda Standard: Early gains and contemporary setbacks

The Castañeda standard has been used frequently in the courts over the past 40 years (Hakuta, 2011). On the one hand, the three-prong test set forth in Castañeda provides a reasonable framework for states and districts to provide an evidence based, high-quality bilingual program. On the other hand, the standard is so vague and ambiguous that it provides the states and districts an opportunity to not do much at all. The results have been mixed at best.

The Castañeda court rulings were favorable in the early years. For example, in 1983, Judge Richard Matsch issued a 31-page opinion applying the Castañeda standards. He found that Denver had failed to direct adequate resources to its language program, the question of teacher qualifications being a major concern. Moreover, this decision highlighted that the Castañeda standards applied to school districts nationwide. A few years later, the Seventh Circuit Court of Appeals, ruled on the obligations of the states under the EEOA (Gomez v. Illinois State Board of Education, 1987). The Court applied the tripartite criteria established in Castañeda and extended to state education agencies, as well as to local education agencies, the obligation to ensure that the needs of the students of limited English proficiency be met. In doing so, the “Castañeda standard” with deference to Lau has become the most visible legal articulation of educational rights for bilingual students in public schools.

The court rulings applying Castañeda since the 1990s have been far less favorable for bilingual education advocates. For instance, Valeria v. Wilson (1998) could not deter Proposition 227 in California from taking effect. More recently, Horne v. Flores (2013) let stand a state legislated, restrictive four-hour block of English-only instruction determined by the courts to meet the Castañeda standard (Jimenez-Castellanos & Garcia, 2017). The Castañeda decision does not define who qualifies as an expert in determining whether a program is based on sound educational theory and it did not specify the length of the trial period (Faltis & Arias, 2012). As a result, Castañeda has raised questions around who counts as experts in determining “sound educational theory” and how long the trial period for educational programs should be before they must be proven effective in overcoming language barriers.

While intended to ensure an equitable education for students identified as English Learners (ELs), Castañeda has been used to support restrictive English-only education and has made it possible for questionable education programs to continue indefinitely. Reviewing major court cases that have interpreted the Castañeda case, Faltis and Arias (2012) show that courts have slowly deferred to school district personnel and school district consultants as experts on determining “sound educational theory.”

Castañeda, Language Policy Theory and Key Policy Recommendations

The field of language policy has shifted in the underlying theories of language and research methods that have motivated language policies and planning. For example, Heller & McElhinny (2017) remind us that language is a contested terrain embedded within a capitalistic and colonial system that hinders or promotes language use(s) in terms of who, how and where language is allowed. Furthermore, Heller (2007) states that the creation of social categories of language and language users functions as a way to help maintain a social order. Meanwhile, Hornberger, Tapia, Hanks and Dueña (2018) describe language policy research as moving from structuralism, large-scale census and survey methodology aiming to develop language policies that would solve national problems in the 1950s and 1960s, to political, legal and economic analyses to reform structures of inequality in the 1970s and 1980s, to ethnographic research methods from the late 1980s to today that aim to shed light on the varied and complex ways language policy is lived out in local settings. All in all, the field of language policy has shifted from top-down approaches focused on solving perceived problems to complex multi-layered approaches that acknowledge a wide range of policymakers involved in the process (Ricento & Hornberger, 1996).

The Castañeda decision intended to ensure that educational programs, for instance, provide an appropriate education to ELs and granted school districts flexibility in selecting education programs for students identified as ELs as long as the programs met the three-prong criteria described previously. In this way, Castañeda granted language education policy decision-making power to school districts and effectively reversed the top-down approach to language policy of the early days to a focus on local school districts. But this shift in power was not without challenges. While the latest wave of language education policy acknowledges school district personnel as policymakers and perhaps would even support them as experts, this move by the courts has dismissed the need for methodologies, assumptions about language, explanation of inconsistencies, an extensive review of the literature and overwhelming support for expert conclusions (Arias & Faltis, 2012). As Arias & Faltis (2012) explain, “…expertise in cases and actions involving school districts (and most recently, the ELL Task Force) has been reduced to opinions of individuals who hold certain perspectives about the role of non-English languages in learning English, with a clear disregard for the findings based on research and sound theoretical principals about how children and adolescents learn a second language in school” (p. 27).

The challenge then is not that local level educators are viewed as experts, rather that expertise has been reduced to opinions with no more support than underlying beliefs about non-English languages and their speakers (Erdocia & Soler, 2021; Tupas, 2018). The complexities that these beliefs bring with them and their consequences for various social actors and school communities are the center of attention in this special issue. But before providing a roadmap to the contributions in it, we first offer some key policy recommendations concerning the Castañeda decision which, in our view, has had limited impact on policy and practice. It is clear that legal attention to policy by the courts matters. In particular, we provide two overarching recommendations with sub-recommendations that we believe could improve Castañeda to allow more meaningful protections for bilingual children. These are detailed below:

I. The Castañeda standard needs to be strengthened through clearer and updated language and resources to support multilingual students from an asset-based perspective:

• a. Sound bilingual educational theory needs to be defined and grounded in state-of-the-art evidence-based research not just “an educational theory.” This will hopefully clarify what counts as expertise in future litigation.

• b. There needs to be clearer articulation and standards of what is “effective implementation.”

• c. Bilingual programs need to be fully resourced with the bilingual personnel, professional development, curriculum, materials, and facilities to effectively implement a high-quality program. A robust set of cost studies should be conducted to better understand the costs of distinct types of bilingual programs.

• d. There needs to be more specific guidelines of what makes an effective program, when it should be evaluated and how it should be evaluated.

• e. There needs to be more resources allocated to develop and enhance technical support centers to help states and districts in program implementation and evaluation.

• f. Bilingual programs should be reframed from an asset-based perspective instead of one that looks to remediate and compensate “language deficiencies” and “language problems.” Instead, the goal should be to build upon the cultural and linguistic strengths of multilingual students to allow them to fully reach their potential with dignity and respect.

II. Castañeda needs to be expanded to address the full language needs of all multilingual learners not explicitly included in the original case:

• a. The language rights of dual language learners in early childhood (0–5) need to be protected.

• b. The unique needs of multilingual students in special education need to be protected.

• c. Black and African American students´ language needs should be addressed.

Synthesis of Manuscripts in this Special Issue

The contributions in this special issue provide different theoretical frameworks and perspectives with which to examine the aspects anticipated above. In the first article, Coady, Ankeny and Ankeny examine the Castañeda case and its recent interpretations in the literature as applied to non-native English-speaking students. In “Is Language a ‘Right’ in U.S. Education? Unpacking Castañeda’s Reach Across Federal, State, and District Lines,” the authors use a theoretical lens of orientations in language planning and language policy text to discuss the socio-historical context of the case and position it with respect to the 1974 seminal case of Lau v. Nichols. Taking the state of Florida as an example, they describe the complex language ecology of local and state language policies and how those relate to Castañeda and inhibit progress for bilingual students in Florida. They conclude with caution to academics and advocates who work on behalf of language minoritized students in the United States, with implications for international scholars.

In “Mid-Level Leaders as Key Policy Interpreters: State and Local Leaders’ Perspectives on Leveraging Castañeda to Expand Equity for EL Students,” the second article in this issue, Mavrogordato, Callahan and Bartlett highlight the importance of understanding the perspectives of those most closely charged with interpreting Castañeda for implementation, the state and local educational agency (SEA and LEA, respectively) leaders who oversee EL educational programs and services. Based on a qualitative multiple case study design and relying on interview data from 17 SEA and LEA EL leaders in three states, they focus on how EL leaders draw upon Castañeda to inform their efforts to serve EL students, what these leaders see as its affordances and constraints, and how future leaders might better leverage Castañeda to improve educational equity for EL students.

Moving on to the availability of bilingual/dual language education for Latinx students over four decades and the impact of Castañeda during this time, Escamilla, Shannon and Garcia provide a case study analysis of bilingual education in Colorado to assess. Their article, “Four Decades After Castañeda: A Critical Analysis of Bilingual/Dual Language Education in Colorado,” shows that, other than a brief time period, the history of bilingual education and all other program types in Colorado has been oriented toward language as a problem and toward systemic bias regarding language policies and practices. This is particularly true for Spanish speaking Mexican origin children and families who have historically comprised over 40% of Colorado’s Emerging Bilingual Learner population. The authors conclude that while Castañeda had some influence on bilingual education over the past 40 years, it could have had much more policy and practice effect if the three-prong standard had been further clarified by the courts. Moreover, they make clear that grass roots advocacy initiatives proved more influential on bilingual education policy and practice in Colorado.

Drawing on their autoethnographic accounts as bilingual teacher educators, Hernandez, Alfaro and Navarro Martell discuss in the fourth article how the Castañeda v. Pickard case shaped their work as language policy agents in one bilingual teacher education department in California. In “Bilingual Teacher Educators as Language Policy Agents: A Critical Language Policy Perspective of the Castañeda v. Pickard Case and the Bilingual Teacher Shortage,” the authors expose how they negotiated language policy through de jure and de facto policy in the form of standards for the preparation of bilingual teachers, course texts, syllabi and local university policies. They also highlight how they worked at the tensions of policy and practice to prepare critically conscious bilingual teachers that honor, value and serve linguistically and culturally diverse communities.

In the fifth article, “Beyond Castañeda and the “Language Barrier” Ideology: Young Children and their Right to Bilingualism,” Castro and Meek discuss the importance of the Castañeda Standard and, importantly, how we can build from its foundation toward more equitable learning systems, with a central focus on the early care and education system. The discussion is grounded in the central tenet that improving standards must move away from the “language barrier ideology” to perceiving language as a strength to build on, and to include bilingualism and biliteracy as a central goal of learning systems, shifting away from an exclusive English learning focus. They track the three pillars established by the Castañeda Standard 40 years ago and further develop how these could apply to the early care and education systems that serve the youngest bilingual learners.

Martínez, Martinez and Morales drive our attention, in the sixth article, to the Black Lives Matter movement. Their contribution, “Black Lives Matter vs. Castañeda v Pickard: A Utopian Vision of Who Counts as Bilingual,” interrogates the underlying logic framing the Castañeda criteria that bilingual education be based on sound educational theory. They interrogate the underlying logic framing the Castañeda criteria that bilingual education be based on sound educational theory. Martínez, Martinez and Morales argue that ideas of theoretical soundness framed multilingual students as a vulnerable population in need of federal protection and, because the Castañeda case emerged on the United States and Mexico border, the students in the federally protected class were imagined to be primarily Latinx. Sound educational theory largely focused on second language acquisition and multilingual students were framed as second language learners. This framing led to excluding Black students from conversations of bilingualism and bilingual education policy. The authors call for a reimagining of “sound educational theory” that recognizes the linguistic ingenuity of Black and Latinx youth, simultaneous bi/multilingualism and promotes linguistic solidarity among racialized youth.

In the seventh and last article in this special issue, Poza, Garcia and Jiménez-Castellanos present a theoretical piece titled “After Castañeda: A Glotopolítica Perspective and Educational Dignity Paradigm to Educate Racialized Bilinguals.” In their contribution, the authors demonstrate how Castañeda exemplifies the limitations of political victories that are subject to interpretations with underlying assimilationist and deficit ideologies. They describe how approaches to language education policy in the United States have followed a White supremacist monolingual logic. The authors also propose a framework of educational dignity that engages multiple stakeholders in creating language education policies guided by racialized bilingual students’ own dignified logic.

By way of closing, Peter Roos and Terrence Wiley offer commentaries in light of the themes emerged in the previous articles. Peter Roos, a civil rights attorney and plaintiff lawyer in the Castañeda case, provides an insider legal perspective. He contends that Castañeda is still a useful tool to advocate for bilingual children but notes the limitations and the importance of local actors to use it to better serve students. Terrence Wiley, on the other hand, is Professor Emeritus at Arizona State University and past President and CEO at the Center for Applied Linguistics. In his commentary, he frames the contributions with reference to a larger body of language policy literature while at the same time analyzing the usefulness and limitations of the different articles in this issue.