"Appropriate Action," InappropriatelyDefined: Amending the Equal EducationalOpportunities Act of 1974

[Education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.1I. IntroductionThe number of limited English proficient (LEP) students in the nation's public primary and secondary schools is growing:2 65% more LEP students enrolled in American schools in 2004 than had in 1994.3 In the 2001-2002 school year, there were 3,977,819 LEP students in grades K-12, a 71.9% increase from the 1991-1992 estimate.4 Current numbers of LEP students are three times what they were in the 1980s5 and LEP students represent approximately 8.4% of all public school students in the United States.6 All fifty states enroll LEP students in their schools.7 This is caused in large part by the recent rise in immigration-over 14 million immigrants entered the United States during the 1990s alone (both legally and illegally),8 and immigrants are entering states and localities that have never before experienced large-scale immigration.9 By 2020, more than one of every seven American residents will be foreign born.10Paradoxically, there is a movement to make English the official language of the United States in order to "preserve English and the 'American' way of life from encroachment by a growing number of linguistic minority groups."11 Such an attitude detrimentally affects LEP students when they are placed in regular English-speaking classes. Without special instruction in learning English, these children are precluded from receiving a meaningful education because they cannot comprehend what they are learning.12 The ramifications of this trend extend beyond language borders-students who are not properly educated are more likely to drop out of school and commit crimes.13However, the Equal Educational Opportunities Act14 (EEOA) can protect the right of LEP students to an equal education. Although this Note argues that the language of the EEOA is currently too vague to protect sufficiently the rights of LEP students, the statute is clearly capable of assisting these students. For example, the Yonkers, New York Board of Education recently reached a settlement with the U.S. Department of Justice (DOJ) in which it agreed to pay $300 million over five years to fund remedial educational programs.15 Some of these programs will improve Yonkers's inadequate services for LEP students.16 The Yonkers settlement, arising under the EEOA, is an example of the potential inherent in the thirty-four-year-old statute. To promote settlements such as this one, this Note argues that the EEOA must be amended in order to assure equality of education for language minority students.Proposing additional statutory language necessitates an understanding of the nature of the EEOA, the law on education generally, and the problems surrounding the statute that have arisen in the courts. Thus, Part II of this Note discusses the social and political framework from which the EEOA was born. Part III disproves concerns that the EEOA does not validly abrogate state sovereign immunity under the Eleventh Amendment to the Constitution. Part IV traces the definition of "appropriate action" as it has appeared in the courts over the last three decades, and Part V proposes new statutory language that will clarify the responsibilities of the educational agencies so as to assure compliance with the EEOA, protect the rights of LEP students, and reduce litigation over the issue in the courts.II. Background on the Equal Educational Opportunities ActIn 1974, Congress passed the EEOA.17 The act states: "No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by ... (f) 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. …