The discussion of equal educational opportunity for LEP students was first made public in the late 1960s with many other civil rights issues. In 1970, the federal Office for Civil Rights issued a memorandum which stated that school districts must take affirmative action to ensure that the native language of minority students did not inhibit their participation in the educational system. In 1974, the Supreme Court's decision in Lau v. Nichols affirmed the notion. In their decision, the court argued that providing the same resources to LEP students as their English-speaking peers was denying them of obtaining an appropriate education. In direct response to the Lau v. Nichols decision, congress passed the Equal Educational Opportunity Act, which not only mandated equal rights for LEP students, but also stated that a failure to provide adequate resources for to overcome language differences was considered a denial of equal education.
The issue of educational equity resurfaced in the mid-1990s, when many cities and states across the nation experienced a large influx of immigrants. Between 1995 and 2005, the number of immigrant children in grades K-12 rose more than 57%. Since this time, the demographics of the United States have been changing radically, particularly with respect to Hispanic individuals. In 1980, there were 14.6 million Hispanics in the United States, which accounted for about 6% of the population. By 2000, the population had grown to 35.3 million, or 12.5% of the population. It is now estimated that the Hispanic population will exceed one-third of the national population by 2050.
The United States also experienced exponential growth of the LEP student population beginning in the mid-1990s. Between 1998 and 2008, LEP students rose from 2.03% to 53.25% of the total number of students enrolled in public schools. In the 2008-2009 school year, there were 5,346,673 identified LEP students, which is over 10% of total enrollment in public schools in the United States. The states with the highest LEP populations in 2008-2009 were: California, Texas, Florida, New York, and Illinois. Despite the influx of immigrants into the country, the majority of LEP students in the United States are native born.
The two opposing schools of thought with regards to educational equity in the second half of the 20th century were differentiation and universalism. The legislation that arose from the Civil Rights Movement and cases such as Lau v. Nichols argued that in order to create equal educational opportunity, students should be treated differently based on their individual needs. As a result, differentiated instruction shaped educational policy in that era. However, in the late 20th and early 21st centuries, criticism began to surface, claiming that differentiated instruction was failing because it was furthering cultural and linguistic differences between subgroups of students. After the publication of A Nation at Risk in 1983, educational policy began to shift towards standards-based reform.
Standards-based education reform is designed to promote equity through universalism, unifying education nationwide through high academic standards that must be met by all students. As this paradigm shift began to work its way into national policies such as Goals 2000 and the 1994 re-authorization of the Elementary and Secondary Education Act (ESEA), the focus became more on lofty and rigorous educational outcomes rather than vocational or alternative education methods (such as bilingual education) that had been popular in previous decades. Just as federal policies began to reflect these pedagogical changes, states also began to implement changes to reflect the same values. In 1998, California passed an initiative that almost all classroom instruction should be in English. These changes were due mainly in response to federal English-only standardized testing. The effects of such a drastic policy change were felt statewide due to the high LEP population. The increased focus on curriculum, instruction, and standardized assessments also shaped the changes in policy reflected in the No Child Left Behind Act of 2001.