The Equal Educational Opportunities Act (EEOA) promises equal educational opportunity to the over 4.5 million English language learners (ELLs) attending public schools. It requires states to "remove barriers to ELLs' equal participation in educational programs." If a state violates this command, and thus denies an ELL equal educational opportunity, the ELL can "institute a civil action in an appropriate district court … for such relief, as may be appropriate."

Equal educational opportunity, however, has proven elusive for ELLs—the EEOA's promise to them has not been realized. A significant achievement gap exists between ELLs and other students. ELLs consistently score below their peers on academic achievement tests, and high school dropout rates are higher for ELLs than other students in all 38 states that track ELL graduation rates.

Although the EEOA may never fully deliver on its promise to ELLs, it can be more effective than it has been to date. The EEOA gives courts broad discretion in crafting remedies for violations of ELLs' rights, and that discretion includes the ability to award compensatory education—a powerful tool for remedying a child's educational deficits that arise when a state violates a student's rights. Compensatory education includes prospective educational services such as tutoring, after-school classes and academic summer camps. But courts have yet to recognize compensatory education as a permissible form of EEOA relief.

That the EEOA allows compensatory education awards is confirmed by precedent awarding compensatory education under the Individuals with Disabilities Education Act (IDEA)—a civil rights statute that parallels the EEOA but protects only students with disabilities—and the EEOA's legislative history.

First, IDEA precedent awarding compensatory education establishes that the EEOA allows the awards because the relief available under the EEOA and the IDEA overlaps. The EEOA and the IDEA both protect educational rights; they both afford courts discretion to award any equitable relief that they deem "appropriate;" and they require courts to consider similar criteria when awarding relief to a student. Indeed, at least one court, the U.S. District Court for the District of Minnesota, has suggested that, given the EEOA's similarities to the IDEA, it permits compensatory education awards.

Second, Congress incorporated into the EEOA the broad equitable powers that courts exercised in school desegregation cases, including the power to award compensatory education. In 1974, the year Congress passed the EEOA, school desegregation efforts stemming from Brown v. Board of Education were ongoing, and courts, based on their broad equitable authority under the Fourteenth Amendment and Title VI of the Civil Rights Act, were regularly awarding compensatory education in desegregation cases. Against that backdrop, Congress enacted the EEOA, in part, to assist with school desegregation, and rather than cabining courts' authority to award compensatory education when school districts violate the statute, Congress embraced the broad equitable power that courts were exercising, conferring on them the discretion to award any relief that they deem appropriate.

Why, then, have courts still not recognized that compensatory education is a permissible form of relief under the EEOA? It appears that they simply have not had a meaningful opportunity to explore the role of compensatory education under the statute. EEOA claims are uncommon, and when they are raised, it is usually by groups of ELLs requesting comprehensive reforms to a school district's ELL programming. Claims seeking individualized relief, like compensatory education, are a legal novelty, so courts have not had many chances to consider requests for compensatory education.

Moving forward, advocates should make a concerted effort to establish compensatory education as a form of EEOA relief. Beyond serving as a powerful tool for remedying individual ELLs' educational deficits, compensatory education has the potential to bolster private enforcement of the EEOA and improve the statute's efficacy. Access to compensatory education awards would increase the benefits of individual EEOA claims, thereby fostering greater private enforcement. And with greater private enforcement, the EEOA would become a more effective anti-discrimination statute. School districts would be more likely to prioritize EEOA compliance since an EEOA violation would trigger a meaningful risk of litigation and the prospect of a costly compensatory education award.

Advocates can help establish compensatory education as a form of EEOA relief by requesting EEOA-based compensatory education in IDEA cases. When an ELL who has special needs seeks IDEA relief, if she and her parent have concerns about her ELL programming, their advocate should encourage them to raise a claim for EEOA-based compensatory education. Parents and students regularly pursue non-IDEA claims, such as claims under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, in IDEA cases. Adding EEOA claims to the mix is feasible and will present courts with more opportunities to examine whether the EEOA allows compensatory education awards.

Congress promised ELLs equal educational opportunity over 40 years ago, yet that promise is far from fulfilled. Compensatory education can help fix that.

Kevin Golembiewski is an associate with Berney & Sang. He focuses his practice on appeals, education law and employment law. Contact him at [email protected].