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TESOL Law Journal. March 2008 Vol 2.

The TESOL Law Journal March 2008 Volume 2

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TESOL Law Journal. March 2008 Vol 2.

Published by TESOL Law Journal

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Publisher: Dr. Paul Robertson Asian EFL Journal

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Table of Contents

1. Foreword 2. Terrence Patrick Dermott. A Review Of ESL Students Right to Instruction in a Language Other Than English 3. Noraini Ibrahim. Language(s) in the Judicial Process: Tempering Justice with `Mercy' 4. Cheng Le. Professional Legal English Training in China 5. Nidal Suleiman Wureidah. A New Evaluation of Law English Teaching Materials 6. Thor May. Corruption and Other Distortions as Variables in Language Education 7. Tom Davidson. TESOL Certificates. Teaching or Deceiving the EFL/ESL Teaching Profession?

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45-62 63-83

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110-115

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Foreword by Tom Davidson Welcome to the second Volume of the TESOL Law Journal. It has taken quite some time since our first edition to raise the articles for publication. Clearly, whilst the TESOL profession is growing rapidly across the globe, the law for the TESOL profession lags behind. Teachers across the globe involved in second language teaching are more than ever in need of legal support, which is provided on an ad hoc basis from country to country. Generally speaking, teachers of SLA face a dearth of help as they go to other countries to help spread the English language. The Code of Ethics, drafted and put on line two years ago, still lays sleeping like a dormant volcano. The Code of Ethics stimulated lot of responses, mostly in e-mails and forums, but it did not garner the support of enough persons to make its way into mainstream TESOL teaching. This edition sees two articles make it abundantly clear the Code of Ethics is needed more than ever. The first article by Terry Dermott looks at the legal history of bi-lingual programs in the United States from a legal stand point. The second article, an ethnographic research by Noraini Ibrahim looks at the usage of English in Malaysian court rooms. Next Cheng Le looks at legal English as used by lawyers in China. Nidal Suleiman Wureidah evaluates legal teaching materials as used in Damascus University. Thor May looks at the controversial area of corruption within the rubric of the ESL EFL industry in Korea and China, whilst, in a similar vein, I report on the unsatisfactory state of the TESOL Certificate industry across the globe as it perpetrates many frauds upon unsuspecting yet well intentioned teachers seeking to advance their careers I hope the third edition does not take another two years to develop, and warmly encourage articles from lawyers, teachers and others connected to the TESOL profession across the globe on issues that go to the law and TESOl. We would strongly welcome further articles on the Code of Ethics - a topic in urgent need or research and reporting. Please enjoy this Volume 2. Tom Davidson Senior Editor Hong Kong

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A Review Of ESL Students Right to Instruction in a Language Other Than English

By Terrence Patrick Dermott Bio Terry Dermott has been teaching English for almost eight years in Southeast Asia and Korea. During that time he has taught at colleges in Thailand, Laos and Vietnam. While in Thailand, I taught business law and international taxation, as well as EFL, to international students studying in English as a second language. In Vientiane and Hanoi, he worked at universities in intensive programs with students planning to study abroad. He is presently employed as a professor at Ulsan University at the Language Education Center. Prior to teaching, Terry was a Judge Advocate in the United States Air Force for eight years and an attorney for the Department of Treasury for nine. He provided legal advice to senior management on large procurements of computer equipment and services. In his capacity as government attorney, he appeared before Federal and State courts and presented cases before the National Labor Relations Board (NLRB), the General Services Board of Contract Appeals (GSBCA), and the Merit System Protection Board (MSPB).

Abstract As the decisions of local school boards become more politicized, this article addresses whether states must provide academic instruction in the students' native language as part of transitional ESL programs. Specifically, the article discusses the legal history for bilingual programs in the United States. The article analyzes legislation providing funding for transitional programs, court decisions ruling on what rights people have to be educated in their native tongue, and finally, the present landscape of "English only" voter's initiatives. Key words. Bilingualism, transitional English, multiculturalism, linguistic rights

Introduction As part of my graduate work, I researched second language acquisition in the German-speaking Amish community of Indiana. As part of my background work, I contacted school administrators for the schools of the Northeastern counties about the

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academic progress of Amish children in their schools. To my surprise, I found that while the Amish had generally fled the public schools to establish their own private parochial schools, these school districts had Hispanic ESL populations of up to forty percent in some elementary schools. In my conversations with school officials about their ESL students, two points seemed to be reoccurring themes. First, none of the districts were prepared for the onslaught of ESL students that were invading their schools. They were trying to build language acquisition programs from scratch with no expertise. The administrators I spoke with considered it impractical to try to find Spanish-speaking teachers for their rural communities. Immersion programs with additional English language arts tutoring was the option chosen by default. Secondly, the ESL students were a major fiscal issue for the schools. Federal funding is tied to students' performance on standardize tests. In the eyes of administrators, adequate provisions were not made for exempting the test scores of limited English proficiency (LEP) students, who performed substantially below their non-ESL counterparts. Moreover, the additional cost of educating the minority language students was sucking money away from other parts of the school system at an alarming rate. The cost varied from additional teachers and materials to the cost of administrating and tracking programs (Debbie Yoder & Dara Amstuz, personal communication, December 3-5, 2004). Second language acquisition has become an important issue in American educational policy and practice. Until the late 1960s, bilingual education was not of great concern to policy makers. But as the immigrant population began to grow in the late 60s, the question of how to ensure equal educational opportunity for non-English speakers increasingly came to the forefront. A survey of state education agencies found that, in 2000-01, more than 4 million students with limited proficiency in English were enrolled in public schools across the nation, making up almost 10 percent of the total pre-K through 12th grade public school enrollment (Kindler, 2002). According to that same report, the population of students who are Englishlanguage-learners has grown 105 percent, while the general school population has grown only 12 percent since 1990-91 (Ibid). In fact, a report commissioned by the U.S. Department of Education shows that the number of teachers who instructed at least one English-language learner in grades K-12 in 2001-02 has more than tripled since 1992 (Zehler et. al., 2003). The questions posed by these numbers are both practical and theoretical. How will we educate our non-English speaking populace?

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While this question is not unique to the United States,1 its proportions has made it the elephant in the living room of American education. Many terms such as bilingual, immersion and English only are bandied about with varied and ambiguous meanings. For the purpose of this paper, the term bilingual education refers to programs where students study in both English and their first language, though the percentage of curriculum taught in either language may vary greatly. The approach advocates developing language proficiency in both students' native tongue and English and believes in the student's right to receive instruction and maintain their native language. This approach is posited against approaches that are termed

immersion, or commonly English only where the focus is on moving the student to English proficiency as quickly as possible with no attempt to develop native language skills. All instruction is in English with the exception of "sheltered programs" for recent immigrants and ESL classes. Students are usually placed in ordinary

classrooms after one year or as soon as viable. Language education policy has been dogged by both ideological and pedagogical conflicts. Advocates of "official English" policies have argued that the United States can insist on assimilation without violating civil rights. On the other side, proponents of bilingual programs insist that they facilitate acquisition of English and that English-immersion programs are exclusionary. Meanwhile researchers debate the efficacy of different approaches. What are the actual benefits of bilingual education is hotly contested. Comparisons of the effectiveness of English immersion and bilingual education have been controversial and inconclusive. In 1996, a review of literature on the effectiveness of bilingual education concluded that the method is not the most beneficial to English-language learners (Rossell & Baker, 1996). Subsequent studies refuted the conclusions and claimed that bilingual education is the best method of teaching language-minority students (Greene, 1997; Cummins, 1998). A more recent review of programs for English-language learners found that bilingual education has a particularly positive effect when students are taught to read both in their native languages and in English at different times in a single day (Slavin and Cheung, 2003). While any successful program must be well organized and manned with qualified, trained personnel, the

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The United Kingdom and Australia also face issues of how to educate their non-English speaking population (A matter of Survival, 1994).

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preponderance of literature seems to support the position that bilingual education produces the best long term cognitive results (Baker, 2001). It is equally clear that the apocalyptic prophesies of opponents to English only initiatives have not come true and that in general, LEP students' overall academic performance has improved after English only programs are implemented (Grumz, 2000; Steinberg, 2000). What are the benefits depend greatly on the perceived goals. If one assumes that the sole purpose is to have children learn English as fast as possible while not falling behind in academic work, then one can measure its success on way. However, if one assumes that the goal is to maintain one's culture or language while also learning English and mastering subjects, then another measure will be used. Either way, there are plenty of studies, but alas they often have different results. Many proponents of bilingual education would advance the position that "The key issue becomes `what are the optimal conditions for children who are either bilingual, becoming bilingual or wish to be bilingual?'' (Baker, p. 266). However, Baker and other supporters of bilingual education fail to grasp that it is not what is in the best interest of an individual or class of children, as determined by educational experts, that determines what is taught in our schools. A review of legal precedent shows that this prerogative is in the hands of citizenry of the local school district whose concern ultimately is what is in the best interest of the community. Via the democratic process, a community may choose to support any of a myriad of different processes or champion any of a number of different values. To assert that taxpayers should be forced to pay for language maintenance or to foster multiculturalism as a matter of course is not supported by law or judicial decision. This article will not try to determine the best approach to assimilate the flood of immigrants entering the United States. It will address the issue of an individual's right to bilingual education at taxpayer's expense based on present federal regulation, judicial decision and proposed legislation. Federal Law & Regulation: In 1839, Ohio became the first state to adopt a bilingual education law, authorizing German-English instruction at parents' request. Louisiana enacted an identical provision for French in 1847, and the New Mexico Territory did so for Spanish in 1850. By the end of the 19th century, about a dozen states had passed similar laws. Elsewhere, many localities provided bilingual instruction without state

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sanction, in languages as diverse as Norwegian, Italian, Polish, Czech, and Cherokee (A History of Bilingual Education, 1998). However, the issue did not become a matter for Federal regulation until Title VI of the Civil Rights Act of 1964 prohibited discrimination in federally funded programs. A subject of much litigation, it was interpreted to mean that a student has a right to meaningful and effective instruction regardless of the country of origin. Subsequently, in 1968, Congress enacted the Bilingual Education Act, also known as Title VII of the Elementary and Secondary Education Act (ESEA). Enacted at the height of the Great Society, Title VII passed Congress without a single dissent. However, the bill's legislative history provides little guidance as to what Congress intended, and Americans have spent the past 40 years debating what it was meant to accomplish. No particular program of instruction was recommended. In fact, financial assistance was to be provided to local educational agencies "to develop and carry out new and imaginative . . . programs" (Bilingual Education Act, 1968, at Sec. 702). Grants were awarded to local educational agencies or institutions of higher education working in collaboration with local education agencies to (a) plan and develop programs "designed to meet the special educational needs" of language minority students, (b) provide preservice training to personnel such as teachers and teacher aides, (c) establish, maintain, and operate programs (Ibid, at Sec. 704). Among the approved activities were: bilingual education, teaching the history and culture of the target population, early childhood education, and adult education for parents. Although bilingual education was mentioned as an approved activity, the legislation did not specify the role of native language instruction (Garcia & Weise, 1998). In 1970, the former Department of Health, Education and Welfare (HEW) issued an interpretation of Title VII (Identification of Discrimination and Denial of Services on the Basis of National Origin, 1970). The purpose of the memorandum was to clarify Office of Civil Rights" (OCR) Title VI policy on issues concerning the responsibility of school districts to provide equal educational opportunity to language minority students and prohibited the denial of access to educational programs because of a student's limited English proficiency. The memorandum stated in part: "Where inability to speak and understand the English language excludes national origin minority-group children from effective participation in the educational program offered by a

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school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students" Ibid. The Supreme Court in Lau v. Nichols, (1974) confirmed this language as a de facto standard for application of Title VII (see infra). Subsequently, Congress

reauthorized the Equal Educational Opportunity Act (1974), which incorporated the Court's Lau mandate. Specifically, it incorporated language to address equal

educational opportunity and linked it to bilingual education programs: "the Congress declares it the policy of the United States to establish equal educational opportunity for all children (a) to encourage the establishment and operation . . . of education programs using bilingual education practices, techniques, and methods" Ibid, at Sec. 702[a]. For the first time, bilingual education was defined as "instruction given in, and study of, English, and, to the extent necessary to allow a child to progress effectively through the educational system, the native language" (Ibid, at Sec. 703[a][4][A][i]). In 1975 HEW issued a new set of guidelines that translated schools' legal obligations into pedagogical directives (34 C.F.R. 100 et. seq.). Federal officials required the use of bilingual instruction in elementary schools where enough LEP students spoke the same language to make it practical Id. The OCR began an

aggressive campaign to enforce the Lau Remedies, wielding the threat (never exercised) of withholding federal funds to resistant school districts. The outcome, over the next five years, was the adoption of bilingual programs by nearly 500 districts (Crawford, 2002). These "Lau Remedies" evolved into de facto compliance standards, which allowed undue Federal influence over educational judgments that could and should be made by local and state educational authorities (Williams, 1985). The 1978 reauthorization of the BEA added language to the 1974 definition of bilingual education which specified that instruction in English should "allow a child to achieve competence in the English language" (Sec. 703 [a][4][A][i]) and when enrolling English-speaking children "the objective of the program shall be to assist children of limited English proficiency to improve their English language skills" (Sec. 703 [a][4][B]). Other changes in the legislation included the following: parents were given a greater role in program planning and operation; personnel were required to be proficient in the language of instruction and English; and grant recipients were

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to demonstrate how the program would continue once federal funds were withdrawn (Garcia & Weis, 1998). In 1980 the Department of Education (DOE) published a Notice of Proposed Rulemaking (NPRM) that sought to replace the unofficial Lau remedies with a document that would have set forth requirements for all schools enrolling language minority students. Possibly in response to prior criticism2 about "ambiguities" in the Lau Remedies, the Department's 1980 included objective specifications for identification and assessment of language minority students. The 1980 NPRM

proposed bilingual education as the required method of instruction in schools with sufficient numbers of language minority students of one language group (Lyons, 1992). The highly detailed and prescriptive standards set out in the 1980 NPRM drew widespread criticism, and in response to its solicitation of public comments the DOE received over 4,000 letters, most of which objected to one or more of the NPRM's provisions (Lyons, 1992). Subsequently, the Department determined that the proposed regulations were intrusive and burdensome. They were withdrawn in 1981, and OCR implemented nonprescriptive interim procedures pertaining to the effective participation of language minority students in the educational program offered by a school district. Under these procedures, OCR reviewed the compliance of school districts on a case-by-case basis (Minority Language Compliance Procedure, 1990). Any educational approach that ensures the effective participation of language minority students in the district's educational program was accepted as a means of complying with the Title VI requirements. Specifically OCR policy stated that: In providing educational services to language minority students, school districts may use any method or program that has proven successful, or may implement any sound educational program that promises to be successful. Districts are expected to carry out their programs, evaluate the results to make sure the programs are working as anticipated, and modify programs that do not meet these expectations Ibid at 3. The 1984 reauthorization of the BEA marked a shift from mandating only bilingual programs to the acceptance of English-only programs. Transitional bilingual

2 In 1978, when an Alaskan school district disputed OCR's use of the Lau Remedies for determining compliance with Title VI, the Department of Health; Education and Welfare (HEW) agreed, in a Court-approved consent decree, to replace the Lau Remedies with formally published compliance guidelines (Northwest Arctic School District v. Califano, 1978).

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education programs were defined as providing "structured English-language instruction, and, to the extent necessary to allow a child to achieve competence in the English language, instruction in the child's native language" (Sec.703[a][4][A]). The allocation of funding reflected a preference for this objective: 60% of Title VII funds were allocated to the various grant categories, and 75% of these funds were reserved for transitional bilingual education programs. In contrast, developmental bilingual education programs, which were defined as providing "structured English-language instruction and instruction in a second language....designed to help children achieve competence in English and a second language, while mastering subject matter skills" (Sec. 703 [a][5][A]), received no specific funding allocations. In addition to delineating these two bilingual education programs, the grant categories included special alternative instructional programs (SAIPS) that did not require the use of native language. These programs were created in recognition "that in some school districts establishment of bilingual education programs may be administratively impractical" (Sec. 702(a)(7)). While the 1984 grant categories remained the same for the 1988 reauthorization, funds allocated to SAIPS were increased to 25% of the total. Furthermore, the legislation included a three year limit on an individual's participation in transitional bilingual education programs or SAIPS (BEA, 1988, at Sec. 7021 [d] [3] [A]). In 1990, the OCR supplemented their guidance to ensure that LEP students had meaningful access to programs. The update adhered to OCR's past determination that Title VI did not mandate any particular program of instruction for LEP students. In determining whether the recipient of Federal funds was operating a program for LEP students that meets Title VI requirements, OCR considered whether: (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy; (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school; and (3) the program succeeds, after a legitimate trial, in producing results indicating that students' language barriers are actually being overcome (Williams, 1990). In 2002, the Bilingual Education Act and the Emergency Immigrant Education Program of ESEA (Title VII) was amended by the English Language Acquisition, Language Enhancement, and Academic Achievement Act (Title III). Part of the legislation popularly know as the No Child Left Behind Act of 2001, it imposes

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extensive new federal mandates on state and local educators, and creates a new scheme of Federal funding for Limited English Proficiency (LEP). Federal funds will continue to support the education of English Language Learners (ELLs), but the money will be spent in new ways, supporting programs likely to be quite different from those previously funded under Title VII (Crawford, 2002). While previously not less than 75 percent of funds were to be used for programs that use a child's native language in instruction, no such requirement now exists Ibid. Language Education Agencies (LEA) must now use Title III funds to provide high-quality language instruction programs that are based on scientifically based research demonstrating effectiveness in increasing English proficiency and student academic achievement in the core academic subjects. The statute defines

scientifically based research as research that involves the application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to educational activities and programs (ESEA, 2002). How this language will play out is difficult to say. But it would appear to allow the states wide latitude in choosing viable pedagogical approaches. One thing is certain. While any type of rational program preferred by the parents and the school district is allowable, the rapid teaching of English will take precedence at every turn. A new ethos now prevails. Previous Congressional

wording pointed out that "as the world becomes increasingly interdependent and as international communication becomes a daily occurrence in government, business, commerce, and family life, multilingual skills constitute an important national resource which deserves protection and development" (Crawford, 2002). Even as late as the 1994 reauthorization of Title VII directed grants to help language minority children "develop proficiency in English, and to the extent possible, their native language" (Sec. 7111[2][A]). Furthermore, Title VII gave "priority to applications which provided for the development of bilingual proficiency both in English and another language for all participating students" (Sec. 7116[i][1]). This objective has been removed from present legislation. Now the objective for LEP students is "(to) attain English proficiency, develop high levels of academic attainment in English, and meet the same challenging State academic content and student academic achievement standards as all children are expected to meet." (Title III of No Child Left Behind, 2002, at Section 3102).

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Federal evaluation of LEP continues to evolve. States have voiced objections to testing LEP students on the same basis as other students.3 In September 2006, the Department of Education published new regulations for testing LEP students (along with allotting thirteen billion in funding). It defines LEP students as ones who have been in the United States for less than twelve months. LEP students may be exempted from one reading art assessment but partake in math and science assessment (34 CFR 200 et. seq, 2006). However, the LEP scores may be excluded from the school's overall performance scores and reported separately for up to years after the former LEP students leave the program Id. In summary, from the 1970s to the present we see a gradual shift away from bilingual education and multiculturalism in favor of assimilation into an English language culture and academic achievement. While Title VI never required schools to teach students in their native tongue, Federal Regulators initially showed a strong preference for multiculturalism via bilingual education as the required method of instruction in schools with sufficient numbers of language minority students of one language group. Subsequently, the Federal Government slowly allowed local school boards more discretion in deciding what worked with a focus on English proficiency and academic achievement. Ultimately, what the law requires is that educational programs that receive federal funding offer equal opportunity education for LEP children. To enforce this principle, the Federal courts and the OCR will find a violation of Title VI if language minority students in need of an alternative program are not being provided such a program. However, the mere absence of formal program with identification and assessment procedures does not, per se, constitute a violation of Title VI. Judicial Decisions Since its inception, the United States has experienced successive waves of immigration from all corners of the world. This tower of Babel was filtered through the American public and parochial school systems that assimilated generations of immigrants. How the schools should do this is an issue that has been visited by the courts for over a century.

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Annual English assessments will be mandated, "measurable achievement objectives" will be established, and failure to show academic progress in English will be punished (Title III, 2002, at Section 3102). Some argue that the accountability provisions, such as judging schools by the percentage of ELLs reclassified as fluent in English each year, are expected to discourage the use of native-language instruction (Crawford, 2006).

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First, it is clear there is no Federal right to education. This positioned was elucidated in San Antonio School District v. Rodriguez (1973), and reaffirmed in Pyler v. Doe (1982). However the state courts are split as to what rights are granted by their state constitutions. At this point in time, courts in 15 states ­ Alabama (Opinion of the Justices, 1993), California (Serrano v. Priest, 1971), Connecticut (Horton v. Meskill 1977), Kentucky (Rose v. Council for Better Educ., Inc., 1989), Minnesota (Skeen v. State, 1993), New Hampshire (Claremont School Dist. v. Governor, 1997), New Jersey (Robinson v. Cahill, 1975), North Carolina (Leandro v. State of North Carolina, 1997), North Dakota (Bismarck Public School Dist. 1 v. State, 1994), Vermont (Brigham v. State, 1997), Virginia (Scott v. Commonwealth,1994), Washington (Seattle School Dist. v. State, 1978), West Virginia (Pauley v. Kelly, 1979), Wisconsin (Kukor v. Grover, 1989), and Wyoming (Washakie Co. Sch. Dist. No. One v. Herschler, 1980) appear to have recognized a fundamental right to education under their constitutions, employing various patterns of analysis. Meanwhile, six states: Colorado (Lujan v. Colorado State Board of Education, 1982), Georgia (McDaniel v. Thomas, 1981), Idaho (Thompson v. Engel king, 1975), Maryland (Hornbeck v. Somerset County Board of Education, 1983), New York (Levittown UFSD v. Nyquist, 1982), and Ohio (Bd. of Edn. v. Walter, 1979), have rejected arguments that their state constitutions establish education as a fundamental right. Still others, such as Oklahoma and Arizona, are ambiguous or have not The perception of the nature of the right to an education ultimately determines the standard of review of any state law that regulates the use of language in teaching. The issue came before the Supreme Court in 1919 when it overturned a Nebraska statute, which stated, "no person, individually or as a teacher, shall, in any private denominational, parochial, or public school teach any subject to any person in any language than that English language" (Meyer v. Nebraska, 1923). The basis for the Court's ruling was that the state's imposition of restrictions "upon the people" unreasonably infringed on the plaintiff's constitutional liberty interest and therefore violated the 14th Amendment's equal protection law Id, p. 412. In Lau v. Nichols (1974), the Court ruled that a public school system's failure to provide English language instruction to students of Chinese ancestry who did not speak English, denied the students a meaningful opportunity to participate in a public educational program in violation of Title VI of the Civil Rights Act of 1964. The Lau

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decision affirmed the 1970 HEW Policy Memorandum titled "Identification of Discrimination and the Denial of Services on the Basis of National Origin," (35 Fed. Reg. 11.595), recognizing the Act's requirement to take affirmative steps to rectify language inequity (see supra). While, the Lau Court found that "(B)asic English skills are at the very core of what these public schools teach," (Lau, p. 566) it was applying the Civil Rights Act, not the Fourteenth Amendment. The Court interpreted §601 itself to proscribe

disparate-impact discrimination, and "rel[ied] solely on §601 ... to reverse the Court of Appeals," Id, p. 567. The disparate-impact regulations simply "[made] sure that recipients of federal aid ... conduct[ed] any federally financed projects consistently with §601," Ibid, p. 568. The Appellants alleged violation of the Fourteenth

Amendment of the Constitution, the Court declined to reach this issue and made their decision on the basis of the Civil Rights Act Id, p. 571. The Court did not find any denial of a fundamental right and certainly did not recognize a right to instruction in their native language. Nothing in Lau required school districts to take a specific course of action, bilingual instruction or otherwise: "No specific remedy is urged upon us. Teaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instruction to this group in Chinese is another. There may be others" Id, p. 665. The Court's edict only recognizes the student's right to learn English. In fact, the Chinese students who were offered supplementary English classes were not parties to this action Ibid. What would be required of school district pursuant Lau was elucidated in a number of subsequent federal cases. Castineda v. Pickard (5th Cir. 1981), established a legal standard for appropriate action by schools. Programs for LEP students must be sound in theory, provided with sufficient resources in practice, and monitored for effectiveness, with improvements made when necessary. 4 Specifically, Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field, or at least theories that are recognized as legitimate educational strategies Id. p. 1009. It required that "the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational

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The Court in Castaneda based its standard on the Equal Educational Opportunities Act of 1974 (EEOA), rather than on Title VI or its implementing regulation (20 C.F.R. Part 100). The relevant portion of the EEOA (§ 1703(f)) is very similar to OCR's May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974.

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theory adopted by the school" id, p. 1010. Some approaches that fall under this category include transitional bilingual education, bilingual/bicultural education, structured immersion, developmental bilingual education, and English as a Second Language (Williams, 1991). A district that is using any of these approaches has complied with the first requirement of Castaneda. If a district is using a different approach, it is in compliance with Castaneda if it can show that some experts in the field consider the approach sound or that it is considered a legitimate experimental strategy Id. Some confusion exists over the application of different legislation and what remedies and standards apply. In view of the similarity between the EEOA and the policy established for Title III implementation in the 1970 HEW memorandum, the OCR adopted the Castaneda standard for determining whether recipients' programs for LEP students complied with the Title VI regulation. Several courts have also treated Title VI and the EEOA as imposing the same requirements regarding limitedEnglish-proficient students. Rios v. Read, (E.D.N.Y. 1978) considered Title VI, § 1703(f), and Bilingual Education Act of 1974 claims together and used 1975 Lau remedies to determine compliance. Subsequently Gomez v. Illinois State Bd. of Educ., (7th Cir. 1987) used the Castaneda standard for § 1703(f) claims and remanded the plaintiff's claim under Title VI regulation without specifying the standard to be used in resolving it, except to note that proof of discriminatory intent was not necessary to establish a claim under the Title VI regulation. 5 Later, in Teresa P. v. Berkeley Unified School District, (1989) the District Court of Northern California distinguished § 1703(f) and Title VI on other grounds.6

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These Civil Right cases must be seen in light of the recent Supreme Court ruling in Alexander v. Sandavol (2001) which clarified the right to sue for civil right violations based on language barriers. This case dealt with the issues of disparate impact (unintended consequences) and whether a non-native English speakers can sue the state under Title VI of Civil Rights Act. The Court ruled against Sandoval stating that a private citizen cannot sue the federal government under Title VI. The court also ruled that a plaintiff has to prove that the actions taken against them were intentional acts of discrimination. Thirdly, the Supreme Court stated that a language is not considered an act of discrimination protected in the Civil Rights Act; only race, color, and national origin are included. 6 In analyzing the §1703(f) claim, the Teresa Court used the three-part Casteneda standard and determined that the district's program was adequate under that standard Id, p. 712-16. In addressing the claim brought under the Title VI regulation, however, the court stated that plaintiffs had failed to make a prima facia cases because they had not alleged discriminatory intent on the part of the defendants, nor had they offered any evidence, statistical or otherwise." That the alternative language program had a discriminatory effect on the district's LEP students were participating successfully in the district's curriculum, were competing favorably with native English speakers, and were learning at rates equal t9, and in some cases greater than, other LEP students countrywide and statewide Id, p. 711). The court also found that, in general, the district's LEP students scored higher than the county and statewide average on academic achievement tests Id, p. 712.

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But whether the claim to efficient instruction is made pursuant to Equal Education Opportunity Act (1997) or Title VI (1964) the courts have not recognized any right to instruction in the student's native tongue. The Ninth Circuit in

Guadalupe Org. v. Tempe Elementary School Dist. No. 3., (9th Cir. 1978) found that maintenance bilingual/bicultural education was not necessary to provide students with the "meaningful education and the equality of educational opportunity that [Title VI] requires" Ibid, p. 1029. The court also found that districts did not have to provide maintenance bilingual/bicultural education to be deemed to have taken "'appropriate action to overcome language barriers that impede equal participation by its students in its instructional program'" Id, p. 1030 quoting § 1703(f). To summarize, while many of decisions in the late 70s granted plaintiff's request for instruction in the student's native tongue [see Rios v. Reed, (1978); Cintron v. Brentwood Union Free School District (1978)], these decisions rested on Title VI and not the constitution. Constitutionally, the present state of the law was distinctly stated in Guadalupe Organization v. Tempe Elementary School District No.3 (1978). In that case, English speaking Mexican American and Yaqui Indian students attending Tempe (Arizona) Elementary School District No. 3 alleged violations of the Fourteenth Amendment, Title VI, and the EEOA, and sought to compel the 12,280 student school district to provide them with bilingual-bicultural education. Although Mexican American and Yaqui Indian students made up about 18 percent of the district's elementary school enrollment, 92 percent of the students in the Guadalupe elementary school were Mexican American or Yaqui Indian. When a District Court rejected their suit against Tempe district, the plaintiffs appealed to the Ninth Circuit Court of Appeals, which then reviewed the case. The plaintiffs in Guadalupe did not "complain of the school district's efforts to cure existing language deficiencies of non-English speaking students." (p 1025). Rather, they claimed they had been denied: . ".instruction that "has as its goal having a child graduate at each grade level from kindergarten to fourth year in high school competent and functional in reading, writing, and comprehension both in the child's own language, Spanish, and the language of the majority culture, English." (And) in which "all courses of instruction, testing procedures, instructional materials [are] bilingual and bicultural." Finally, appellants contend that the school district failed to reflect in its program of instruction the particular history of the parents of each child attending the school." (emphasis added) Ibid, p. 1028.

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The Court of Appeals upheld the District Court's summary judgment for the Tempe School District. Regarding the plaintiff's Fourteenth Amendment claim, the Court wrote: We hold that the appellees fulfilled their equal protection duty to children of Mexican American and Yaqui Indian origin when they adopted measures, to which the appellees do not object, to cure existing language deficiencies of non-English speaking students. There exists no constitutional duty imposed by the Equal Protection Clause to provide bilingual-bicultural education such as the appellants request...Nor, as far as this record reveals, does the (district) program fail "to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process." (emphasis added) Id p. 1030. The Courts discussed at some length the plaintiffs' constitutional claim and elucidates how ultimately the scales of competing interest must be balanced: ...fully aware of the serious nature of the appellants' contentions. Our analysis returns us to the foundations of organized society as manifested by the nation-state. We commence by recognizing that the existence of the nation-state rests ultimately on the consent of its people...Linguistic and cultural diversity within the nation-state, whatever may be its advantages from time to time, can restrict the scope of the fundamental compact (emphasis added). Diversity limits unity...Multiple linguistic and cultural centers impede both the egress of each center's own and the ingress of all others...(and) to reinforce affection toward insiders, hostility toward outsiders develops..."Whatever may be the consequences, good or bad, of many tongues and cultures coexisting within a single nation-state, whether the children of this Nation are taught in one tongue and about primarily one culture or in many tongues and about many cultures cannot be determined by reference to the Constitution. We hold, therefore, that the Constitution neither requires nor prohibits the bilingual and bicultural education sought by the appellants. Such matters are for the people to decide (emphasis added) Ibid, p. 1030. As with many rights, enumerated or otherwise, the existence of a right to a distinct linguistic heritage, does not equate to a guarantee that the state will maintain it for you. Legislative Initiatives Public sentiment against bilingual education has been growing. In 1998, California voters overwhelmingly approved Proposition 227, an initiative that largely eliminated bilingual education in the state's public schools. Under the California initiative, most English-language-learners in that state are now placed in Englishimmersion programs. Although parents are allowed to continue to choose bilingual

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programs for their children, 7 the percentage of LEP students in bilingual classes dropped from 29.1 to 11.7 in the 1999-2000 (Crawford, 2006 citing California Department of Education Statistic). Since that time there has been a steady decline in bilingual participation to 6.1% in 2006 Ibid. After the success of California proposition, other states quickly followed suit. Arizona voters passed Proposition 203 in 2002, a proposal similar to the California initiative. After passage, the proportion of English-language learners in bilingual education classes decreased from about one third to 11 percent (Crawford, 2002). In 2002, Massachusetts's voters approved a similar ballot initiative (Question 2), doing away with the oldest bilingual education law in the nation. In Oregon, proposed legislation HB 2459 was introduced at the beginning of the 2007 session and would limit all educational programs to English (Hays, 2007). Special interest group have gone to court to block these alternatives once passed in all three states. As an alternative, groups intent on blocking voter initiatives bring actions to change the wording of proposed initiatives to support the views of the proponents of the initiative. In 2002, a Colorado initiative (Amendment 31, 2002) mandating the use of English in schools was challenged by proponents arguing that the wording was deceptive. The state Supreme Court mandated that language be added to the summary of the initiative which supported the proponents' arguments against the initiative (Garcia, Shannon, & Ausphal v. Montero & Chavez, 2002). Additionally the Attorney General of Colorado uncharacteristically used his position to publish reports that alleged that there would be negative fiscal impacts on local school districts as a result of the initiative (Escamilla, Garcia, Silvia, Shannon, 2002). Ultimately, these measures in conjuncture with the concerted effort of organized labor resulted in the defeat of the Colorado measure by a ten point margin. Conclusion

7

Proposition 227 also allows that if "a California school child has been denied the option of an English language instructional curriculum in public school, the child's parent or legal guardian shall have legal standing to sue for enforcement of the provisions of this statute, and if successful shall be awarded normal and customary attorney's fees and actual damages, but not punitive or consequential damages. Any school board member or other elected official or public school teacher or administrator who willfully and repeatedly refuses to implement the terms of this statute by providing such an English language educational option at an available public school to a California school child may be held personally liable for fees and actual damages by the child's parents or legal guardian." (Article 5, at section 320, 2000).

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A review of the law reveals that the language of instruction for second language learners is the prerogative of the people and not a human right granted by judicial fiat. Any community can choose to implement a program of instruction in a language other than English, but there is no right to be educated in a language other than English at taxpayer's expense, constitutional or otherwise. The constitution does not grant any linguistic rights other than a chance to become proficient in English. How that occurs is a question for voters to decide. Bilingual education has a place in American education. Any group of parents can educate their children consistent with their own wishes in our nation's private schools Parochial education in America has always been the most responsive to the needs of the immigrant community and most responsible for its education. Parochial and private schools in the United States have the freedom and flexibility to experiment with innovative programs and do not bend to the public will other than the parents who chose to utilize them. This situation is not unique to the United States. In Australia, the Mount Scopus College program has served as a laboratory for bilingual education in Australia for decades (Lorch, McNamara & Eisikovits, 1992). Unfortunately, much of America's education establishment is openly hostile to any alternative to the public education system. However, any workable system of

assimilating new arrivals to our country must arise from below and not be enforced from above on the nation.

REFERENCES A Matter of Survival, (1992). Report of the Inquiry into Aboriginal and Torres Strait Islander Language Maintenance, The Australian House of Representatives Select Committee on Aboriginal Education (36th Parliament). Retrieved December 19, 2004 from http://austlii.edu.au/au/special/rsjproject/rsjlibrary/parliminetary/language Baker, C. (2001). Foundations of Bilingual Education and Bilingualism. (3eds.). Sydney: Multilingual Matters LTD. Crawford, J., (2006). The decline in bilingual education: how to reverse a troubling trend. Language Policy and Emporium. Rec'd January 11, 2007. http://ourworld.compuserve.com/homepages/JWCRAWFORD/T7obit.htm Crawford, J., (2002). The Bilingual Education Act 1968 ­ 2002. Language Policy and Emporium. Rec'd January 11, 2007 from, http://ourworld.compuserve.com/homepages/JWCRAWFORD/T7obit.htm Cummins, J., (1998). Rossell and Baker: Their Case for the Effectiveness of Bilingual

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Education, Currents in Literacy, 1 (2). Escamilla, Garcia, Silvia, Shannon, (2002). Breaking the Code: Colorado's defeat of the anti-bilingual education initiative (Amendment 31), Bilingual Research Journal, 27:3 Fall 2003 Rec'd December 28, 2006 from, http://brj.asu.edu/content/vol27_no3/art1.pdf. Garcia & Weise (1998). The Bilingual Education Act: Language Minority Students and Equal Educational Opportunity. Bilingual Research Journal, Vol 22, No. 1. Retrieved 22 February 2007 from http://www.brj.asu.edu/v221/article1.htlm Greene, J.P. (1997). A meta-analysis of the Rossell and Baker review of bilingual education research. Bilingual Research. Journal, 21(2&3). Gumz, Jondi. (February 6, 2000), Schools implement voter initiative -- with widely varied results, Santa Cruz Sentinel. Front Page. Hays, Kevin (January 17, 2007). Oregon Lawmaker Introduces Bill That Would Make English Oregon's Official Language. Salem-News (Capital Watch) retrieved February 20, 2007from http://salemnews.com/articles/january172007/oregonenglishbill_011707.php A History of Bilingual Education, (1998). National Association for Bilingual Education (Vol 12, #3, Spring 1998). Recovered 22 January 2007 from http://www.rethinkingschools.org/special_reports/bilingual/resources.shtml Identification of Discrimination and Denial of Services on the Basis of National Origin, (1970). The May 25th Memorandum, 35 Fed. Reg. 11595 - Tab A. Kindler, A.L., "Survey of the States' Limited English Proficient Students and Available Educational Programs and Services, 2000-2001 Summary Report," National Clearinghouse for English Language Acquisition and Language Instruction Educational Programs, 2002. Lorch, S.C, McNamara, T.F., & Eisikovits, E. (1992). Late Hebrew immersion at Mount Scopus college Melbourne: Towards complete Hebrew fluency for Jewish day school students. Language and Language Education, 2 (1), 1-29. Lyons. (1992). Legal Responsibilities of Education Agencies Serving National Origin Language Minority Students, The Mid-Atlantic Equity Center, Retrieved 18 February 2007 from www.maec.org/lyons/contents.htlm Rossell, C. & Baker, K. (1996). The Educational Effectiveness of Bilingual Education, Research in the Teaching of English, 30 (1), pp. 7-74. Slavin, R.E. & Cheung, A. (2003). Effective reading programs for English language learners: A best-evidence synthesis. Baltimore, MD: Johns Hopkins University, Center for Research on the Education of Students Placed at Risk. Steinberg, J. (August 20, 2000). Increase in Test Scores Counters Dire Forecasts for Bilingual Ban. New York Times, (Front Page). Retrieved 1 December 2005 from http://www.onenation.org/0008/082000.html. United States Department of Education Office, The Office for Civil Right's. (1985). Language Minority Compliance Procedures; reissued without change (1990). Retrieved 19 January 2007 from www.ed.gov/about/offices/list/ocr/docs/lau1990_and_1985.html Williams, M. (1991). Policy Update on Schools' Obligations Toward National Origin Minority Students With Limited-English Proficiency, US Department of Education, Retrieved 23 January 2007 from www.ed.gov/docs Zehler, A.M., Fleischman, H.L., Hopstock, P.J., Stephenson, T.G., Pendzick, M.L. and Sapru, S. (2003). Descriptive Study of Services to LEP Students and LEP Students With Disabilities. Volume I: Research Report. Submitted to the U.S. Department of Education, OELA (Arlington, VA: Development Associates Inc.).

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TABLE OF STATUTES Federal Bilingual Education Act, Pub. L. No. (90-247), 81 Stat. 816 (1968). Bilingual Education Act, Pub. L. No. (93-380), 88 Stat. 503 (1974). Bilingual Education Act, Pub. L. No. (95-561), 92 Stat. 2268 (1978). Bilingual Education Act, Pub. L. No. (98-511), 98 Stat. 2370 (1984). Bilingual Education Act, Pub. L. No. (100-297), 102 Stat. 279 (1988). Bilingual Education Act, Pub L. No. (103-382), 103 Stat 7101 (1994). Equal Education Opportunities Act. Pub. L. No. (93-380), 20 U.S.C. 1703. (1997). Elementary and Secondary Education School Act. Pub. L. No. (89-10). 79 Stat. 77. (1965) No Child Left Behind Act of 2001. Pub L. No. (107-110), 115 Stat. 1425 (2002) Title VI Civil Rights Act of 1964. Pub. L. (Pub. L. 88-352). 42 USC 2000d.et seq (1964). Department of Education. 20 CFR §100 (2000) Department of Justice's Title VI Regulations. 28 C.F.R. § 42.101 et seq. Department of Education. 34 CFR §100.3(b)(2) (2000) Department of Education. 34 CFR §200 et. seq. (2000) Department of Education Bilingual Education. 45 Fed. Reg. 52052 et. seq. Proposed regulations withdrawn 3 February 1981. State Amendment 31 Ballot initiative (2002) Colorado, Rec'd March 9, 2007 from http://www.state.co.us/gov_dir/leg_dir/lcsstaff/2002/ballot/EnglishLanguageF is calNote.pdf Arizona Revised Statutes. Title 15, Chapter 7, Sec. 3, Article 3.1 (2000) English Language Education for Immigrant Children California Education Code, Part 1, Section 1 Section 300 Chapter (1998). Chapter 218 of the Massachusetts Acts (2002) Rec'd March 15, 2007 from http://www.sec.state.ma.us/ele/elebq02/bq022.htm

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TABLE OF CASES Alexander v Sandavol, 532 U.S. 275 (2001) Lau v. Nichols, 44 U.S. 653 (1974) Meyer v. Nebraska. 262 U.S. 390; 43 S. Ct. 625; 67 L. Ed. 1042 (1923). San Antonio School District v. Rodriguez, 411 U.S. 1, 36 L. Ed. 2d 16, 93 S. Ct. 1278, reh. denied 411 U.S. 959 (1973), Castaneda v. Pickard. 648 F.2d 989 (5th Cir., 1987). Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030 (7th Cir. 1987). Guadalupe Org. v. Tempe Elementary School Dist. No. 3., 587 F. 2d 1022, (9th Cir. 1978). Cintron v. Brentwood Union Free School Dist., 455 F. Supp. 57, 63?64 (E.D.N.Y. 1978). Keyes v. School District No. 1, 576 F. Supp. 1503 (D. Colo. 1983). Northwest Arctic School District v. Califano, No. A-77-216. (D. Alaska Sept. 29, 1978). Rios v Read, 480 F. Supp. 14 (E.D.N.Y. 1978). Bismarck Public School Dist. 1 v. State, 511 N.W.2d 247, 256 (N.D. 1994) Bd. of Edn. v. Walter, 58 Ohio St.2d 368, 387, 12 NW.3d 327 (1979). Brigham v. State, 166 Vt. 246, 262, 692 A.2d 384 (1997) Claremont School Dist. v. Governor, 142 N.H. 462, 473, 703 A.2d 1353 (1997) Garcia, Shannon, & Ausphal v. Montero & Chavez, 44 P. 3d 213 (Colo. 2002). Hornbeck v. Somerset County Board of Education, 458 A.2d 758, (1983) Horton v. Meskill, (Horton II), 195 Conn. 24, 35-38, 486 A.2d 1099 (1985) Horton v. Meskill (Horton I), 172 Conn. 615, 646, 376 A.2d 359 (1977) Kukor v. Grover, 148 Wis. 2d 469, 496, 436 N.W.2d 568 (1989)

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Leandro v. State of North Carolina, 346 N.C. 336, 348, 488 S.E.2d 249 (1997) Levittown UFSD v. Nyquist, 57 N.Y.2d 27, 43, 453 N.Y.S.2d 643, 439 N.E.2d 359 (1982) Lujan v. Colorado State Board of Education, 649 P.2d 1005, 1017 (Colo. 1982) McDaniel v. Thomas, 248 Ga. 632, 285 S.E.2d 156 (Ga. 1981). Opinion of the Justices, 624 So. 2d 107, 157 (Ala. 1993) (advisory opinion) Pauley v. Kelly, 162 W. Va. 672, 707, 255 S.E.2d 859 (1979) Robinson v. Cahill, 69 N.J. 133, 147, 351 A.2d 713 (1975) cert. denied sub nom. Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 206 (Ky. 1989) Scott v. Commonwealth, 247 Va. 379, 386, 443 S.E.2d 138 (1994) Serrano v. Priest (Serrano I), 5 Cal. 3d 584, 608-09, 96 Cal. Rptr. 601, 487 P.2d 1241 (1971) Seattle School Dist. v. State, 90 Wash. 2d 476, 511, 585 P.2d 71 (1978) Skeen v. State, 505 N.W.2d 299 (Minn. 1993) Thompson v. Engelking, 96 Idaho 793, 537 P.2d 635 (1975) Washakie Co. Sch. Dist. No. One v. Herschler, 606 P.2d 310, 333 (Wyo. 1980) cert. denied 449 U.S. 824 (1980).

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Title Language(s) in the Judicial Process: Tempering Justice with `Mercy'

Author Noraini Ibrahim

Bio:Noraini Ibrahim (PhD) is Senior Lecturer at the School of Language Studies and Linguistics, Faculty of Social Sciences and Humanities, Universiti Kebangsaan Malaysia. She has a keen interest in the intersections of law and language, courtroom discourse and intercultural communication. She received her doctorate from the University of Malaya (20070 and her dissertation is entitled, Courtroom Discourse: Expert Witness testimony in a criminal case in Malaysia. Qualifications: Bachelor in Economics (University of Malaya, 1978) Diploma-in Education (Institute of Education, Singapore 1980) RSA TESL (British Council Singapore, 1981) Diploma-in Law (UITM, 1987) Masters in ESL (University of Malaya, 1997) PhD. Forensic Linguistics (University of Malaya 2007)

Abstract When Malaya achieved independence in 1957, a bilingual language policy was designed to achieve nationalism and nationism (Asmah Omar 1992). Clause 1 and 2 of Article 152 of the Federal Constitution, otherwise known as the Language Act, deem that Bahasa Malaysia is the national language, and English is an official language up to 10 years. When Malaysia was formed in 1963, there was the continued use of English in courts for various practical reasons, foremost of which was the nature of our multi-racial society. In 1980, Bahasa Malaysia was fully implemented in the legal service and the judiciary. Against this backdrop it is thus expected that Bahasa Malaysia is the language of the legal service and the courts. This paper, which is based on a prolonged in-situ ethnographic investigation carried out in a Kuala Lumpur criminal court, would firstly, present findings on the use of language and secondly, offer suggestions as to the continued use of languages other than Bahasa Malaysia in the Malaysian courtroom. But the issue that remains is, will the current practice hamper our nation's effort to mould a Bangsa Malaysia? Key words: courtroom discourse, bilingual language policy, official language, ethnographic investigation

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Introduction When Malaysia achieved independence from the British, our statesmen, led by the much loved Tunku Abdul Rahman Putra al-Haj stressed on unity in diversity, and allowed for the birth of a tolerant and peaceful multi-cultural, multi-lingual and multi-religious nation. This is testimony to the decision makers' alluding to the Hence there were

citizens' collective strengths despite the obvious differences. challenges that had to be overcome.

First and foremost there was this passion to form an identity that is divorced from the legacy of the British. Secondly and more importantly, that identity must be embraced by the people. Language, is more often than not, a barometer for identity. Thus, with three major ethnic groups, namely, Malays, Chinese and Indians, and several minority groups, it soon became apparent that a proper language planning and policy had to be implemented to propel the young nation to growth, without sacrificing the sentiments and unity of the people. It must also be noted that even among the major ethnic groups, a variety of languages and dialects are used. As

such the Federal Constitution, which is the supreme law of the land, was put into place, with 181 articles governing the rights and obligations of the citizens. With a keen awareness of how divisive language issues can be, a bilingual language policy was designed to achieve nationalism and nationism (Asmah Omar 1992). Clause 1 and 2 of Article 152 of the Federal Constitution, otherwise known as the Language Act, deem that Bahasa Malaysia (BM) is the national language while English was an official language up to 10 years This effort was later identified as the catalyst towards the formation of a Bangsa Malaysia, a fitting effort towards the formation of a Malaysian identity. As language marks identity, it is clear that the obvious choice is BM. When Malaysia was formed in 1963, the awareness that law is language and based on the fact that the legacy of English law compelled the realization that the judicial process could not replace English with Bahasa Malaysia overnight, in fact a rather tolerant view on the use of language resulted in the continued use of English in courts for various practical reasons, foremost of which, was the maxim, that justice must not only be served but must be seen to be served. Nevertheless in the early 80s, a more concerted effort in terms of language in the judicial service was put into force, as it appeared, to reaffirm the spirit of Bangsa Malaysia. This will be discussed in the next section. However, it would suffice to say that the concept of Bangsa Malaysia policy was rekindled in 1995 by Tun

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Mahathir Mohamed, the then Prime Minister of Malaysia. In the quest to create an inclusive national identity of Malaysia, Tun Mahathir repeated the need for the people, "to identify themselves with the country, speak Bahasa Malaysia and accept the Constitution" (1995). Hence, this paper would inquire to what extent this

objective has been met in the courtroom, and if it is not, offer suggestions as to the continued use of languages other than Bahasa Malaysia. The question that remains is, whether the current practice hampers our nation's effort in building a Bangsa Malaysia?

Language in the Malaysian Judicial Process In 1957, English was still widely used in the public and private sector, namely in the drafting of bills; all areas of international relations and trade; specialist courses and examinations; the Inland Revenue Services; debates in Parliament; court proceedings; and even in the taking of the history of patients in hospitals. Because of the fact that not all citizens were fluent or competent in BM, the Reid Commission deemed that to be fair, BM should not be the sole official language in the immediate future. Hence, Article 152 of the Federal Constitution provided for the use of English and BM as the two official languages for a period of ten years thereon including in the judicial proceedings. This is the recognition given in respect of the awareness of the during the early years of nationhood and the strong

difficulties of law making Cabinet.

presence of the coalition political parties that formed the backbone of the Malaysian The quest for nationism without sacrificing nationalism, in multi-racial, multicultural, and multi-religion Malaysia upon Independence, allowed for the continuing use of English in courts. This move can be regarded as both pragmatic and practical. Most of the judges and lawyers at that time were trained in England and were only well versed in English. The statutes, books of authority, and journals were also in English. English was, at that time, the main language of the legal service, and it was preserved to avoid miscommunication which may have hindered the meting out of justice. Or in other words, "to see that justice was upheld" (Asmah 1992:109). Another reason was that prior to 1963, the Reid Commission however, did not stipulate competence in any language to be the pre-requisite for candidates who wished to pursue law as their vocation.

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Nevertheless, in 1963, the Language Act, which was an amendment to Article 152 mentioned earlier, came into being. This Act began to put into motion the use of Bahasa Malaysia in the legal and judicial fields. Following this move, the office of the Chief Justice issued a series of directives to implement Bahasa Malaysia as the official language of the court beginning from the lower courts through Pekeliling Pendaftar No. 7 dated 20 November 1969, to Pekeliling Pendaftar (U) No. 12 1981 that was directed to all proceedings in the lower courts and High courts in all proceedings as well as for administrative matters. This government circular was sent out much later that the earlier one because the judiciary was fully aware of the difficulties in implementation. They were not willing to sacrifice the sanctity of the judiciary. In March 1985, the then Lord President directed that the Bar Council be informed that all correspondence from counsel to the court must be in BM. If this were not adhered to then the correspondence would not be attended to. Further, in May 1988, the then Chief Justice of Malaya directed all judges of the High Court, Sessions Court Magistrates' as well as the Registrars of the Lower Courts to submit, from the month of September onwards, a monthly statement listing the languages used in the courts for the cases handled. This was to monitor the frequency and standard of BM used. It could be suggested that there was a very strong political will to implement BM as the language of the court, in place of English. language policy. Was the policy change successful? In a study by Dewan Bahasa dan Pustaka in 1990 (and reported the following year) on the use of BM in the legal and judicial fields, in the lower courts was successful. This success in the lower courts was attributed to race, age, and locale of basic legal education or degree. was attributed to the locale of training (local or overseas) and the medium of instruction of the legal education in local universities. It must be mentioned that by then, local universities had earlier systematically replaced English as the medium of instruction, with the exception of the International Islamic University. Universiti Malaya for instance, BM as its medium of instruction, while Universiti Kebangsaan Malaysia (UKM) and Universiti Teknologi Mara (UiTM) have adopted a bilingual policy. Interestingly, the report also mentioned that lower courts handle mostly `simple matters' like case

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The directives and the

monitoring strategies employed were to ensure the success and smooth running of the

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mentions where BM was widely used. Rituals too were always conducted in BMh. Finally, where litigating parties are concerned BM was used more by the prosecution than by the defence, in line with the public service recruitment exercise, which emphasized competence in BM. In the higher courts, the scenario was very different. Less than 20% of the prosecution and defence in the High courts used more than 75% BM in their deliberations. In the Appeal Court, a very small percentage (less than 2%) of both the prosecution and defence used 70% BM in any discourse. Interestingly, this had nothing to do with ethnicity as was documented in the lower courts. Instead, the study revealed that even among the Malays who could have used BM, very few did. In general therefore, the use of English could be attributed to the education, and legal training received. As such, judges were more comfortable to have evidence and proceedings conducted in English. Interestingly too the judges offered several reasons for the extensive use of English -a scarcity of reference texts in BM and the fact that the journals, statutes and acts referred to were in English. English was also used because most of the documentations and administrative work were still done in English. There are a number of studies of language and the courtroom apart from Juneidah, et al mentioned above. Mead's (1985) monograph reports on the study done by University of Malaya Spoken English Project (UMSEP) with data from magistrates' courts. The findings were not exhaustive but sufficient to gauge certain language choices from the witnesses and counsels.

The Malaysian legal system The Malaysian legal system is to a large extent inspired, influenced and modelled after the British adversarial system. In fact, on attaining independence in 1957, all the existing laws of the Federation of Malaya established by the Federation of Malaya agreement of 1948 continued its force, albeit with appropriate modifications which included among others, amendments and adaptations (Abdul Monir 1989, 108). There are two main characteristics of the Malaysian legal system that set it apart from its western counterparts. The first is the trial by judge not jury. The jury system was abolished in the mid-eighties. Hence the burden is on the judge to hear and pass judgment. As such, the judge has a pivotal role in the Malaysian court. The adversarial system deems that this sole judge will hear arguments from both litigating

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parties, and after taking into consideration the weight of evidence against the burden of proof, make the necessary decision. The second important characteristic is the absence of court recorders or clerks. The judge therefore takes his own notes of proceedings by hand, as do the litigating parties, counsels carrying out watching briefs, and other interested parties (family members, reporters and/or researchers). This feature of the legal system has been cited as the cause of the huge backlog of cases in courts. To overcome this constraint, the Chief Justice of Malaya had, in 2002, allowed a pilot study of electronic recording in the Sibu High Court. The result of this pilot study is crucial in determining whether such a recording may be implemented in all courts in Malaysia in the future. However, to date, the findings have yet to be made available. This legacy of British colonization also means that courts may refer to cases decided in certain other Commonwealth countries, notably Australia, India and Singapore for direction.

Methodology This paper is based on an in-depth ins-itu observation of a criminal case in the high court of Kuala Lumpur which was heard over a period of two and half years. The researcher took down the notes by hand as no form of recording is allowed in the courts of Malaysia. These notes were the duly transcribed and emergent themes

were identified. Data obtained were then compared with the notes of proceedings from the counsels and prosecutor and the judge. The researcher had selected this case for study as it was `intrinsic' and fitted need for `depth' not `width'.

The Findings In the case observed it is noted that written documents were in BM. This include the charge as read out in court by the prosecution at the beginning of the trial. The charge is written and filed and during the trial it would be read first after the court has called for the hearing to begin. The charge translation. Brickfields Repot 6655/2000 Pertuduhan Bahawa kamu pada 22.08.2000 jam lebih kurang 7.45 malam di Jalan Lapangan Terbang di dalam daerah Brickfields di dalam Wilayah Persekutuan, Kuala Lumpur telah menyebabkan kematian dengan melakukan

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suatu perbuatan dengan niat untuk menyebabkan bencana tubuh yang lazimnya cukup untuk menyebabkan kematian terhadap Lee Good Yew, Kad Pengenalan No. 0944265. Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan. (The Charge That you on 22.08.2000 at about 7.45 p.m. at Jalan Lapangan Terbang within the district of Brickfields in the Federal Territory, Kuala Lumpur has caused a death through an intentional act that would cause grievous bodily harm that would cause the death of Lee Good Yew, Identity Card No. 0944265. As such you have committed an offence punishable under Section 302 Penal Code). Now it was observed that in court the rituals as I have observed in my earlier study (Noraini Ibrahim 2002) are given in BM However, what I would like to add here is that the rituals actually mimic the court rituals from the British courts. This is clear when we refer to what was documented by Tiersma(1999). In Legal Language Tiersma reports on how the bailiff will announce the arrival of the judge and in Malaysia, the court policeman will call out "Bangun" (or "All Rise") just before the entrance of the judge as a signal for everyone to rise. This will then be followed by the calling out of cases by the interpreter as shown in the next page Example 1 Inter preter:

Kes 45-52-200, PP lawan Kenneth Fook Mun Lee, kes mula bicara [Hearing begins]

Subsequently, during the trial, it was as follows: Inter Kes 45-52-2000 PP lawan Kenneth Fook Mun Lee, kes mula bicara. [Hearing begins] preter:

This procedure is then followed by the introduction of parties by the prosecution as follows DPP : Dengan izin Yang Arif, pihak pendakwa diwakili Abdul Karim Abdul Jalil, dibantu oleh Timbalan Pendakwa Raya Encik Abdul Wahab Mohamad (.) Timbalan Pendakwa Raya Encik Ahmad Fairuz Zainal

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Abidin (.) TPR Puan Rosidah Abu Bakar (.) manakala pihak pembela diwakili Encik Muhammad Shafee

Abdullah dibantu oleh Encik K Kumarendaran (.) Encik Wong Keong Kong (.) dan Cik Leena Ghosh dan Encik Dev Kumarendran bagi pihak tertuduh dan Cik

Hasmaliza (.) sebagai watching brief. [With your lordship's permission, the prosecution is represented by Abdul Karim Abdul Jalil, and assisted by Deputy Public Prosecutor Encik Abdul Wahab Mohamad (.) DPP Encik Ahmad Fairuz Zainal Abidin (.) DPP Puan Rosidah Abu Bakar(.) while the defence is represented by Mr. Shafee Abdullah assisted by Mr. K Kumarendaran (.) Mr. Wong Keong Kong (.) and Miss Leena Ghosh and Mr. Dev Kumarendran for the accused, and Miss Hasmaliza as watching brief.]

In the days that followed, it was observed that if there was no change in the composition of teams then the introductions would be as follows: DPP : Dengan izin Yang Arif, pihak pihak seperti yang ada. [With your lordship's permission, the parties remain the same.]

There were also times when the prosecution did the introductions in English as shown below: Example 2: Introduction of Parties in English DPP : If it pleases the court Yang Arif, parties are still the same. Despite the position of BM, the researcher notes that that most of the time the interactions were in English. The defence team had from the beginning of the trial

applied for permission to do so. Defence Counsel 2, who stood for Defence Counsel 1had, during the beginning of the trial, applied for permission to use English. The leading counsel for the prosecution, however, did not apply for the use of BM but did use it. Only the third deputy Public Prosecutor (DPP3) sought permission to use

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English when he examined the prosecution's first rebuttal witness in the later stage of the trial. It is suggested that the judge was known to be tolerant on such matters, and

in fact, according to the Interpreter (personal communication); this judge would not stop anyone from using English. However, as Kuala Lumpur has two criminal courts, the researcher was informed (also by the same interpreter), that the judge in the other court was not so flexible.

Language choice Due to the flexibility afforded by this court to the witnesses, witnesses were allowed to choose the language in which to testify. This is best demonstrated in Tables 1 and .2 that follow. Table 1 below shows the language choice by the prosecution witnesses.

Table 1 Language Choice of Prosecution Witnesses Adversarial Party Prosecution Order of Appearance 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 *Expert 19 *Expert Race Malay Chinese Chinese Malay Indian Malay Indian Indian Malay Malay Malay Malay Chinese Chinese Chinese Indian Malay Malay Malay Age n.a 56 32 49 n.a 38 n.a n.a. n.a. n.a. n.a. n.a. n.a. 41 n.a. n.a n.a.. n.a. n.a. Occupation Policeman Pensioner Tax supervisor Driver Police photographer Press photographer Police Inspector Medical doctor Chief Inspector Asst. Supt. Police Policeman Medical Assistant Chemist Restaurant owner Asst. Supt. Police Forensic pathologist Police patrolman, Endocrinologist Psychiatrist Language Choice BM English English/BM BM BM BM BM English BM BM BM BM English Cantonese English English English English English

Note: n.a - not available from the testimony

The data shows that Prosecution Witness 3, a tax supervisor who was a key eyewitness, took the affirmation in BM. But once the questions became technical,

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she switched to English. There was, however, no repair in the affirmation process. The researcher opines that the judge probably allowed for this as he could see her fear and nervousness, and allowed it to pass. In the next section on Language Choice, this issue would be discussed further. Table 2 below presents the language choice of defence witnesses. Table 2 Language Choice of Defence Witnesses Adversarial Party Defence Order of Appearance 1 2 3 4 5 6 7 8 9 10 Race Chinese Malay English Malay Chinese Indian English Sikh Indian Malay Age 51 50 71 47 45 49 39 n.a. n.a. n.a. Occupation Accused Cardiologist Endocrinologist Businesswoman Company Director Doctor Endocrinologist (forensic) chemist Psychiatrist DeputySuperintendent of Prisons Language Choice English English English English English English English English English Malay

Note: n.a - not available from the testimony

There are several conclusions that can be draw from the tables. Firstly, only one witness utilized the function of the Chinese interpreter, and that was the restaurant owner who spoke in Cantonese, a Chinese dialect widely spoken in Malaysia, especially in Kuala Lumpur. Those who used BM were assisted by the BM interpreter. Incidentally, the interpreters would sit themselves next to the witness who was giving the evidence. Secondly, the prosecution witnesses were rather interesting in their code choice. With reference to the table, there is no direct relationship between language choice and ethnicity. The Malays for instance, used both BM and English. The Indians (including a Sikh), also used BM and English. Of the six Chinese witnesses, one used Cantonese, a Chinese dialect (as mentioned earlier), one switched from BM to English, and the others used English. expected, used English. The two English medical experts, as

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What can be suggested is that there seemed to be a divide related to social strata and perhaps even level of education and occupation. Regardless of race or age, those who are relatively well educated, from PW2, PW3, PW8 and the defence witnesses used English. Yet another clear factor is that with the exception of PW8, PW13, PW15, PW16, PW18 and PW19 (medical doctor, expert chemist, police Investigating Officer, forensic pathologist, expert endocrinologists, expert psychiatrists, rebuttal witnesses, respectively), all the government officers, especially the police officers gave their testimony in BM. It would appear that they were adhering to a blanket policy to use BM. In fact, two of the witnesses, the prison warden and the gun expert, who could

speak English well elected to use BM. They, however, did not want to give any reason. Hence, it would seem that the ruling on the Language Act as described in Chapter One is made flexible so that justice is served. As such, social status and type of employment were not suitable indicators of the use of a code. Hence, no firm conclusions could be made here. Of all the witnesses, the most interesting was PW3. This female Chinese eye witness was one of the key eye witnesses. She was also a colleague of the victim. This witness had affirmed in BM and started off her testimony in BM. However, when she found difficulty in describing what she saw in terms of the position of the accused's car, she switched to English and both the counsels and the judge did not make any attempt to stop her or to ask her to take the affirmation again. Her testimony was accepted by the court and this could be seen from the Judge's notes of proceeding (on page 5), as follows: "Saya bekerja sebagai Tax Supervisor di Pro Service Tax Consultants Sdn Bhd.... [I'm working as a Tax Supervisor at Pro Service Consultants]. It was parked across the road. Kedudukkan kereta itu di tengah tengah jalan melintang [The car was in the middle of the road and it was diagonally across] The first sentence was given in BM, and this was followed by the second sentence, in English. While the notes of proceedings showed a smooth switch to English, this was not the case in the actual data. The interaction was filled with much tension as the witness was observed to be trying hard to remember the event, and secondly, attempting to interpret it in BM resulting in much difficulty. However, the manner in

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which the

notes of proceedings were produced showed that despite the change in

code, the adducing of testimony was not affected. Another interesting case in point was found in the data of PW19, Rebuttal Witness 2. The data reproduced below were taken from the opening sequence of the first day of his appearance.

Example 3 Direct Examination of Rebuttal Witness 2 on 30.07.02 on page 1 DPP2 : Yang Arif pihak- pihak pembela adalah sama, Tuan Karim telah dimasukkan ke hospital dan Encik Thevindran watching brief (affirms in Bahasa Malaysia) " Bahawasanya saya Abdul Aziz Bin Abdullah _____________________________ Nama? Abdul Aziz Bin? Abdullah yang Arif, pakar perunding psikiatri dan pakar perunding psikiatri Hospital Kuala Lumpur Yang Arif. [ Abdullah my lord, consultant psychiatrist and consultant psychiatrist Kuala Lumpur Hospital my lord] (.3) Terima kasih [thank you] Soalan akan diberi dalam Bahasa Inggeris [Questions will be given in English] Dato can you tell where are you attached? currently I am attached to the Department of Psychiatry Hospital Kuala Lumpur Currently I am? Attached to the Department of Psychiatry 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 PW : 16 17 Judge PW : : 18 19

PW

:

Judge

:

PW

:

DPP2

:

The data show the ritual of introduction of parties being conducted in BM by DPP2, in the absence of the leading prosecutor who was taken ill and had to be admitted to hospital. We note how the judge, in line 6, also asked for a repetition of the name in BM, and yet in line 13, the prosecutor informed the court that the questions will be posed in English, and without any directions from the judge he proceeded to do so.

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The episode above seems to indicate that the prosecutor was well aware that the switching of code was something that would be accepted by this court, hence the smooth transition. These episodes thus strengthened this researcher's belief that where this court was concerned, the judge was more interested in dispensing justice, and that language should not be an issue, the Language Act, notwithstanding. Again it is noted that these two episodes could have been dealt with differently had another judge presided over the case, as was the case in the Sessions court mentioned earlier.

The use of English and its differing standards The researcher observed and noted the standard of English used by the speaking parties in court. It was noted that there was some difference displayed by the

counsels: the leading defence counsel (who did all the examinations for his side), the leading prosecutor (most of the examinations) and, prosecution (two witnesses). It was found that generally, the defence counsel was more competent in English and hence, seemed to be better organized in his examination. He appeared lucid, clear and well paced, and moved from issue to issue with ease. He was observed to employ various structures and even peppered his speech with metaphors. His court control was excellent, and his retorts to the prosecution ranged from guarded wittiness to acute sarcasms. A sample of such interaction is reproduced on the next page (Example 4 during the direct examination of DW4, the wife of the accused. DPP2 and DPP3 of the

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Example 4 Defence Judge Defence Judge Defence : : : : :

: Direct Examination of DW4 on 19.11.01 Maybe I should not ask explicitly. Directly or indirectly fall under 113. My lord, this point we are not taking objection. Not question of whether taking objection, question of admissibility in law (.) police officers did not hear him? There is no proof of that, no proof of that (.) Your lordship can appreciate (.) but my lord if there is reason to exclude it we could exclude it later(.) There may be prejudicial My lord (.), we feel this is important for our defence Ya but defence is based on admissible exhibits

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Judge Defence Judge Defence

: That is true(.) that is true but at this moment there is : nothing thus far to be prohibited (.) At this moment my : lord there is no evidence that is conclusive to remove this : statement. My lord, I suggest until such time we could remove it from there (.) I'm not going to be very long. (Objecting)That, that should not be (.) whether it may have prejudicial effect we have to decide(.) Whether this statement is prejudicial or not and not to proceed and then

DPP

: decide whether it is admissible. The witness said that the statement was made in the hearing of the police officers. That is also what Dr. Bhavani also said, but qualified later, to say that she didn't know whether they heard or not.

20 21 22 23

Judge

:

Dr. Bhavani (trailed off)

DPP Defence Judge

same with Dr. Bhavani That one she said within the hearing but did not know : whether they heard There your lordship correctly read the provision. So, what : is sauce for the gander is also sauce for the goose as well. : Section 113 applies when the police officer really hear :

24 25 26 27 28

Defence

29 30

Defence 3

:

31

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Here, DW4 was being questioned about what transpired when she met her husband for the first time after the incident. She testified how she had arrived at the police station with her parents-in-law, sister-in-law, two lawyers and accompanied by a senior police officer. She recalled a very tearful and emotional meeting, and

testified how her husband had begged for forgiveness from his parents for causing shame to the family with his deeds. This was alleged to have happened after the family told him that he had shot a woman. She claimed that he had no recollection of the entire event. When she was asked whether the senior police officer could have heard it, she replied in the negative. Under Section 113 of the Evidence Act, the statement could be admitted as a `confession.' A confession could be highly

detrimental too the accused`s case. The judge then made a remark to this end. There are a few insights that we can draw, albeit incidentally from the above Example, apart from the standard of English displayed by the defence counsel. Firstly, it is quite interesting to note that the defence had attempted to build an argument that the accused had suffered a form of amnesia (thereby indirectly inferring to a symptom of hypoglycemia) by ascertaining that he was completely unaware of what he had done. And that he was completely remorseful and that something had happened to

him to cause him to do what he did. However, in lines 4-5, the judge, was trying to ascertain the possibility of Section 113 coming into operation. This was quickly rebutted by the defence counsel who contended that nothing had been adduced to show that the senior police officer had heard the `confession.' The quick objection by the DPP was to push for the evidence to be accepted. In order to strengthen his contention, the judge referred to prior testimony by a key prosecution witness (PW 8). This was the medical doctor at the Accident and Emergency Unit of the Kuala Lumpur Hospital, who had examined the accused and taken his medical history, about five hours after the incident. PW 8's medical

testimony based on her examination was very important in this case as she was the only one who had actually examined the witness. The mere mention of PW8, in line 22, was a very effective resulting in a `virtual' intertextuality and the invoking of a very appropriate content schema. As the judge reminded them that Dr. Bhavani did say that the police officer was near enough to be within hearing, but she could not testify whether he actually heard or not. Interestingly, during direct, cross and reexamination, the Investigating Officer (IO), maintained that he did hear some of the things asked. However, he did not remember anything regarding the history of the

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accused, as he was at the door most of the time. He further testified that it was a busy hospital night. The defence counsel, in line 26, interpreted that to mean that the decision on Dr. Bhavani was that it was not a confession. And since the facts were similar here, the same rule should apply. He ended closed his argument with a very apt proverb of, " what is sauce for the gander should be sauce for the goose as well", albeit adapting it a little but nonetheless displaying his flair and control of the language. There were many instances of verbal play that the defence counsel engaged in. Here the researcher would like to cite one further example as follows:

Example 5 Defence :

DW Defence DPP Defence

: : : :

DW

:

Direct Examination of DW5 on 20.11.01 Now I want to ask you a very direct question Mr. Tan. Kenny somehow or other got involved in an incident about 8 o'clock (.) When Kenny left at 7 pm was there anything in his behavior that now make some sense to you? Was that (.) Kenny normal? Kenny going to his car? Just normal. Just normal. You know when people drink they sometimes speak more My lord he is leading the witness. I can ask. How was Kenny's speech? There are many ways of skinning the cat!(turns to the gallery and smiles) But I will be very happy. How was Kenny's speech at 7 pm did you talk to him? __________ How was his speech? As usual.

1 2 3 4 5 6 7 8 9 10 11 12 13 13 14

The example was taken from the direct examination of DW5, the witness, who was a friend and co-director of the company, the accused owned. We note how this episode was marked in line 1 by the temporal marker, "Now", to indicate the introduction of a new topic in the line of questioning. We see how the idea of drinkers being more talkative than others being introduced by the counsel was objected to by the prosecution for being `leading' as the answer was provided in the question (line 9). Line 10 shows how the repair was done by the counsel, who rephrased and reformulated the question. In doing so, he displayed his competence in the language by adding a metaphor which was really one of his coercive strategies (aimed at the prosecution) to show that he could still get what he wanted. Lines 10-11, `There are many ways of skinning the cat', successfully communicated this.

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It would suffice to say that the defence counsel had no problem at all in the use of the language, and in communicating his intents. The same, however, cannot be said of the leading prosecutor. The sample data procured from the prosecution's case would attest to this. Example 6: Cross-examination of DW2 on 13.11.01 DPP : If a patient has the experience of drinking for the past thirty years more of hard liquor drink (.) is this 198 alcohol(.) can you consider high?(.) You know there is stage 100 to 200 there are normal signs in these circumstances (.) More that 30 years (.) if hard liquor at 198mg. (.) Can you consider that he can fall within that category of 200 to 200 general symptoms. Do you understand? No. A patient with thirty years experience of hard liquor and 198 alcohol content of beer, can you consider a tolerance level as high? Are you trying to ask me whether the patient has a tolerance level? Please bear with me, sorry, sorry What is the question and what is the answer? Person (.) person (.) who has been drinking for thirty years? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

DW DPP

: :

DW DPP Judge

: : :

The above is one example of the many instances when the prosecution had encountered problems when conveying his intent. Here the prosecution was trying to lay the foundation for the tolerance level of liquor in the accused. Hence, in lines 1-3 the prosecution wanted the expert to give an opinion on the level of tolerance of an `experienced and habitual drinker' to be used as a yardstick in the case of the accused. However, the question was badly phrased and resulted in the negative response in line 9. Lines 10 ­12 was an attempt at reformulation and it resulted in a rather rare phenomenon in the courtroom turn-taking system with the witness questioning the counsel in lines 13-14. We note that the witness said, "Are you trying to ask me

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whether the patience has a tolerance level?" The Yes/No questions technique is usually employed as a very coercive strategy by counsels on witnesses (Drew and Heritage 1979, Gibbons 2003, among others). But here the tables have turned. demonstrated the irritation and impatience of the witness as the `fumbled' through in his phrasing of the questions. It

prosecution

And culminated in the

prosecution offering his apologies form his linguistic clumsiness. It would seem that at this point the prosecution was aware of his lack of competence. This lack of competence was also amply demonstrated when the prosecution cross-examined the expert witnesses notably, DW 3, DW7 who were both native speakers of English, as well as DW8 and DW9, the forensic chemist and forensic psychiatrist. It was mentioned earlier that examinations conducted by the

prosecution were shared by the team members and not by the leading prosecutor (DPP1). Hence, in adducing the testimony of the case of the police officers and the Rebuttal Witness 2, DPP3 was assigned. In the case of the government psychiatrist, the prosecution was represented by DPP2. The researcher found that they were quite eloquent and did not have the same language problems as DPP1 (although DPP2 had problems in other areas). It was rather interesting that during one of the informal interviews, the leading prosecutor said that the prosecution did not have problems with the use of any language (although the data did reveal otherwise). The prosecution maintained that they could do their job in any language. The defence team (who are very eloquent in English) contended that they were comfortable in any language too, even BM. Again it must be reiterated that speaking to both parties was not an easy task. The defence, especially, was not very co-operative. As a final note to this section and to confirm her findings, this researcher spoke to the Assistant Registrar during the trial and he stated that where this court was concerned, the choice of language was never an issue, despite the application of the Language Act. And since this is a court of higher jurisdiction, the judge was more concerned with the adducing of evidence. This fact is very reassuring indeed.

Conclusion This study reaffirms the belief that the courts are not yet prepared to strictly adhere to

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the amendments to Article 152. In general, the court, still prefers to temper justice with mercy by allowing witnesses and court officers namely the counsels to use the language that they are competent and comfortable with. This may not be strictly adhering to the concept of Bangsa Malaysia, but with such a tolerant attitude to the use of language it guarantees that the nation can still come to resolution, not a conflict and that the there will be Bangsa Malaysi,a a untied front, albeit, not quite with one language.

References Abdul Monir bin Yaacob. 1989. An Introduction to Malaysian Law. Bangi: Penerbit Universiti Kebangsaan Malaysia. Asmah Haji. Omar.1992. Linguistic Scenery in Malaysia. Kuala Lumpur Atkinson, J. M. and Drew, P. 1979 Order in Court. Atlantic Highlands, N.J.: Humanities Press. Baskaran, L. M.. 1995. Rules of Speaking in Court Proceedings. In Zainab Abdul Majid and L.M. Baskaran (eds.)1995. Verbal Interactions at Play: Rules of Speaking. pp.167-180. Pelanduk Publications. Malaysia Berg-Seligson, S. 1990. The Bilingual Courtroom: Court Interpreters in the Judicial Process. Chicago: The University of Chicago Press. Conley, J.M. and O'Barr, W.M. 1990. Rules versus Relationships: The Ethnography of Legal Discourse (Language and Discourse Conley, J.M. and O'Barr, W.M. 1998. JUST WORDS: Law, Language and Power. Chicago: The University of Chicago Press. Cotterill, J. 2003. Language and Power in Court: A Linguistic Analysis of the O.J. Simpson Trial. London: Palgrave Macmillan. Drew, P. and Heritage, J. (eds.) 1992. Talk at Work: Interactions in Institutional Settings. Cambridge: Cambridge University Press. Gibbons, J. (ed). 1994. Language and the Law. London: Longman. Gibbons, J. 2003. Forensic Linguistics: An Introduction to Language in the Justice System. Oxford: Blackwell Publishing Juneidah Ibrahim and Abd Kahar Yaakob. 1993. Laporan Kaji Selidik Penggunaan Bahasa Melayu dalam Bidang Kehakiman dan Undang-Undang. Kuala Lumpur: Dewan Bahasa dan Pustaka. Mahathir Mohamad 1995. "One nation, one people" in Asiaweek (June 10 1995 Mead, R. 1985. Courtroom Discourse. Birmingham: University of Birmingham Printing Section. Noraini Ibrahim. 2003. Control and Authority in Courtroom Cross Examinations in a Criminal High Court of Malaysia. In Asmah Hj. Omar, et. al. (eds.) 2003. Language and Empowerment pp 125-149. Kuala Lumpur: Persatuan Bahasa Moden Malaysia. Tiersma, P. 1999. Legal Language. London: Chicago University Press.

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Title Professional Legal English Training in China Author: Cheng Le Bio:Cheng Le is a senior lecturer at the City University of Hong Kong & Zhejiang Gongshang University. Cheng le has an LLB from China University of Political Science and Law; LLM of Southwest University of Political Science and Law; Master of Foreign linguistics and Applied Linguistics, Zhejiang University; PhD candidate at City University of Hong Kong. Abstract. China's accession to the WTO highlights the importance of legal English in China, especially for the practicing layers involving foreign affairs. The paper introduces the background of the legal English development in China, tries to investigate the needs of practicing lawyers and analyzes the results gained by interviews and questionnaires, and the controversies raised therein. Key words: needs analysis, legal English training, practicing lawyer 1. Background Rapid economic and social development in China, especially after its accession to the WTO, has created a need for more legally qualified and legally aware personnel in all aspects of commercial, business, professional and public life. There will be an increasing demand for lawyers and legal professionals who have a sound understanding of the common law system mainly of U.S.A., U.K. and Hong Kong and the civil law system of China. Legal English provides a bridge for the gap. ELP, as one subfield of ESP, is rather to teach English for specific group of people than to teach English for specific purposes, therefore, learners should be the primary concern in designing an ELP course. Need analysis of learners should be the priority in designing an ELP course in order to trigger learners' motivation. English for Legal Purposes (ELP), a "relatively uncultivated corner of the English for Specific Purposes (ESP) field"(Swales and Bhatia, 1982, special edition of English for Specific Purposes newsletter), gained its status as an independent

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discipline in 1980s. As for China, English for Academic Legal Purposes (EALP) was introduced as an optional curriculum in tertiary education in 1990s,but little research has been done in theory related to the teaching and learning of ELP in China, in which English is taken as a foreign language and of which the legal system is civil law system. In order to meet the needs of China's opening-up and reform, a book titled Legal English was compiled by some law dons for the senior law students or those who had the same English language proficiency and showed interest in law in 1994. For the book, several characteristics should be mentioned as following: 1. It covers major fields of law but focuses on international economic law; 2. It emphasizes language training of ELP and utilitarianism; simultaneously, it attach an great importance to the learning and understanding of cases and foreign law; 3. Five macro-skills (listening, speaking, reading, writing, translation) parallel in the teaching and learning process; 4. Sentence patterns and collocation of words are highlighted; 5. Notional lexicon is provided according to the order of Chinese Pinyin. Due to its focus on international economic law, it did not gain popularity at law schools. Because this book, as one of the book series, was mainly compiled by the law dons from about 6 law departments at some comprehensive universities, it didn't extend itself to some law universities, which have more prestige among the law profession. In 1994, an English department (later changed to Foreign Language School) was established at China University of Political Science and Law (CUPL); in 1995, it was followed by other law universities such as Southeast University of Political Science and Law (SUPL), Northwest University of Political Science and Law (NUPL) and Eastern China University of Political Science and Law (ECUPL). In 1996, a book entitled Legal English compiled by some GE teachers was adopted by the abovementioned universities for both English majors and law majors. In 1994, the ELP training sponsored by the Justice Department of the PRC for practicing lawyers commenced its debut at CUPL In addition to domestic training program, China and the European Commission have launched many management and professional training programs in trade and the economy in recent years. After China's accession to the WTO, China has been

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working to develop its legal system, based on models from Europe and the US. MOFTEC and the European Union have now launched a legal training fund in Beijing to teach Chinese legal professionals about the modern legal system. The program will be promoted nationally. For the past decade, both US and the European Union countries have been keen to cooperate with China in legal sector. A program sponsored by the Ford Foundation translated a series of western legal classics into Chinese in the early 1990's. It has made a substantial impact on Chinese legal scholars. The British Council, as leader of the European consortium which implements the EUChina Legal and judicial project, is actively involved in the EU-China Legal and Judicial Co-operation Programs. One of them is "The Lord Chancellor's Training Program for Young Chinese Lawyers". This program was launched in 2001 for 10 years, funded by the Lord Chancellor's Department and is a continuation of the scheme funded by the British Government's Department for International Development which ran from 1989. The Scheme is managed by the China Law Council (including the Law Society and Bar Council) and administered by the British Council, with the involvement of the All China Lawyers' Association. The Scheme provides opportunities for up to 15 young Chinese lawyers to undertake a one-year program involving studies at the University of London's School of Oriental and African Studies, and work attachments in the UK and Hong Kong. Qualified applicants should meet the following criteria: 1. Chinese nationals aged between 25 and 35 2. Graduates of law who have passed the national lawyer's examination in China and have at least two years' post-qualification experience in law firm in China 3. High level of written and oral English demonstrated by an overall score of 6.5 or over in the IELTS test with a score of 6.0 or over in every test. (Valid IELTS score is strongly advised to support application ) 4. Specialist experience in one or more areas on legal practice of significance to China's development as a market economy. 5. Strong personal motivation and the ability to adapt to different environments. 2. Needs analysis in ELP training Needs analysis is neither unique to language nor, within language training, is it unique to LSP and thus to ESP. However, needs analysis is the corner stone of ESP,

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of course including ELP, and leads to a very focused course. Three sources of precourse needs indicators were distinguished by Richterich and Chancerel (1987): students (their needs and proficiencies), students' employers, and academic organization. West (1992: 12) maintains that `Needs as interpreted by the sponsors may indeed conflict with the needs felt by the learner.'. Hutchinson and Waters (1993) holds that the relationship between necessities as perceived by a sponsor or an ESP teacher, and what the learners want or feel can be at extreme poles. However, he suggests that learners' perceived wants and wishes should be considered carefully, and due to objective and subjective reality of needs, each learning situation should be considered uniquely and systematically. There exist many definitions and classifications of needs analysis. I'd like to adopt the one suggested by Dudley-Evans: a target situation analysis (TSA)---professional information about learners, the tasks and activities learners are/will be using English for, including objective, perceived and product-oriented needs; a learning situation analysis (LSA), including subjective, felt and process-oriented needs; a present situation analysis (PSA)---what learners already know, estimating strengths and weakness in language, skills, learning experiences. The main sources for needs analysis are: relevant documents, relevant ELP research, learners, those engaged in the field ­ either as practicing lawyers or researchers, past students employers, colleagues. The main collection methods are: questionnaires, analysis of representative, authentic target texts, discussions with stakeholders, structured interviews, observations of target situation, ethnography, language assessments. Among the three subcategories of needs analysis, the most important should be target situation analysis (TSA).

Target situation analysis (TSA) Target needs are understood as `what the learner needs to do in the target situation, and learning needs are what the learner needs to do in order to learn The analysis of target needs involves identifying the linguistic features of the target situation or learners necessities (what is English needed for), lacks (what learner does not know), wants (what learner feels s/he needs)'(Hutchinson & Waters, 1996:55). Obviously, analysis of target situation needs is concerned with the important area of language use and should reflect the needs as determined by the eventual target situation. (Hutchinson & Waters, 1987). Rather than practice language for the sake of language,

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if the practicing lawyers' needs can be incorporated into the goals and objectives of the training program, learners can be kept motivated and interested. The following are some demonstration of national target needs in China: To be aware of the linguistic characteristics of legal English and rationales thereof; To be familiar with the legal genres To acquire and improve skills of legal analysis and reasoning, skills of legal research, skills of oral and written expression of legal ideas appropriate to the practice of law in common-law countries and China To understand the laws and legal system of common-law countries, the law in action and the dynamic interplay between law and other social phenomena, the law and legal system of China and their comparison;

3. Methods The data were collected through questionnaires given to the practicing lawyers involving foreign affairs. Some of the lawyers were also interviewed. The questions in the interviews and questionnaires were carefully designed and thoroughly discussed by the author and his tutor, Professor Pang Jixian. Therefore, the collection of data was administrated with a high degree of explicitness which involved the use of "formal" and structured types of questions in advance (Seliger & Shohamy,1989; Sommer & Sommer,1991). When interviewing the practicing lawyers, conflicting responses by the same lawyer in the questionnaire and the interview were further discussed with them. The practicing lawyers were also inquired for the underlying reasons for their choice. Both quantitative and qualitative methods were employed in the analysis of the collected in order to make the results more objectively and exhaustively. The data were also analyzed under the premise that China has the Civil law system and English is a foreign language for the practicing lawyers, so subcultural and second language acquisition theories were applied in assessing the responses obtained.

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3.1 Participants

The questionnaires and interviews were finished by 62 practicing lawyers involving foreign affairs from various parts of China including Beijing, Tianjin, Jiangsu, Shanghai and Zhejiang. Some of the practicing lawyers filling in the questionnaires are now studying at universities in UK. Some of the practicing lawyers were interviewed by the author's former college classmates and the results were recorded. About twenty of them were personally interviewed by the author. 4. Results The items in the questionnaires for the practicing lawyers can be divided into five categories: (1) the basic information of the practicing lawyers (2) the frequency of legal knowledge use in foreign affairs (3) the frequency of English language use in foreign legal affairs (4) relative importance of different genres in reading (5) the most urgent language skills or difficulties quo

4.1. The basic information of the practicing lawyers

The basic information of the practicing lawyers includes two items: professional rank and English proficiency of the practicing lawyers. Professional ranks refers to the rank of the practicing lawyers as a lawyer in a narrow sense, because some of them are also law dons at universities and colleges. As to English proficiency, a vague criteria is adopted. The English proficiency of the practicing lawyers is judged according to the Band of College English Test (CET) or Test for English Major (TEM) they have passed. ELP as a discipline of ESP, having the obvious specificity and applicability, requires a specified group of learners---law major, legal professions, or those interested in law with a specified English proficiency. For all the practicing lawyers, they graduated from law schools and have at least three or four years' practice, so they have a good mastery of both procedure law and entity law in theory and practice. Simultaneously, the overwhelming majority of them have reached the English proficiency of CET-4 or even above, henceforth, they have the minimum precondition for the ELP training. Moreover, more than half

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of them have attended EALP course at colleges and universities, and some of them have even received ELP training abroad. Figure 1. Professional rank of the practicing lawyers.

35 30 25 20 15 10 5 0 basi c i nt er m at e edi hi gh t ot al

Figure 2. English proficiency of the practicing lawyers

TO TAL 35 30 25 20 15 10 5 0 CET- 3 CET- 4 CET- 6/ TEM 4 TEM 8 -

TO TAL

4.2. The frequency of legal knowledge use in foreign affairs C.N. Candlin, V.K. Bhatia, and C.H. Jenson (2002) propose a more language and discourse based approach in the material selection. Law, unfortunately, is not as a discipline as, say, business or science and does not travel as well across national cultural and legal boundaries. Language and content should therefore be dovetailed in the material for the practicing lawyer in their ELP training course, which means the relative importance of fields of law should be taken into account as a factor in

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selecting materials or designing an EALP training course. Not all the fields of law have gained the equal status in the practice, henceforth, some of them should given the priority not because they are superior to or more important in value than the others but they are more frequently used in practice. As follows are some fields of law according to their frequency of use in lawyers' practice: Contract law, Company law, Civil procedure law, Intellectual property law, Evidence law, Property law, Arbitration law, Tort law, Financial law, WTO rules, Maritime & commercial law, Labor law, Consumer protection law, Securities law, Private international law. On the contrary, in some fields of law such as Public international law, Women's rights &interests protection law, Criminal law/ Criminal procedure law, Juvenile protection law, Administrative law/ Administrative procedure law and Environmental law, English is rarely used, in other words, there are few cases in their foreign legal practices. Figure 3. The frequency of legal knowledge use in foreign affairs

f r equent l y 35 30 25 20 15 10 5 0 Company law WTO rules Maritime & commercial Consumer protection Securities law Private international Civil procedure law Intellectual property law Evidence law Property law9 Contract law Arbitration law Financial law Labor law Tort law

f r equent l y

4.3. The frequency of English language use in foreign legal affairs The frequency of English language use is ranked according to the situations where the English language is used. For the most of the practicing lawyers, they think English is most frequently used in Chinese-English mutual translation, then nonlitigation documents draft, non-litigation documents reading, Business negotiation and litigation documents reading. Translation be the top one is closely related with two

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events occurring in China: Hong Kong's return to China and China's accession to the WTO. The two events together make inevitable the expansion of case involving foreign affairs and necessity of mutual translation of large volume of legal documents. Non-litigation documents draft and reading are ranked much high than litigationdocuments draft and writing, it's because majority of the legal affairs are resolved not via litigation, which correspond to the basic notion in legal practice---litigation should be the last resort in dispute settlement. As a professional mores of practicing lawyers, lawyers should try to solve the differences between parties out of court but not entice their clients to settle the disputes via the channel of litigation.

f r equent l y 30 25 20 15 10 5 0 nonlitigation documents draft nonlitigation documents reading litigation documents reading Business negotiation ChineseEnglish mutual translation

f r equent l y

Figure 4. The frequency of English language use in foreign legal affairs

Figure 5. A comparison between Non-litigation documents draft & reading and litigation-documents draft & writing

f r equent l y 25 20 15 10 5 0 l i t i gat i on docum s ent dr af t nonl i t i gat i on docum s ent dr af t l i t i gat i on docum s ent r eadi ng nonl i t i gat i on docum s ent r eadi ng

f r equent l y

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4.4. Relative importance of different genres in reading `Genre' is a term easier to exemplify than to define. The word traditionally serves to indicate different kinds of literary and artistic works. Language educators and linguists have extended `genre' to identify classes language use and communication in all areas of life. Despite many questions and some controversies raised in genre studies, an influential is that many genres have typical linguistic realization, but that genres should be defined in terms of recognized social purpose. Based on the works of Swale (1990), Bhatia (1993) holds that `genre is a recognizable communicative event characterized by a set of communicative purpose(s) identified and understood by members of professional or academic communities in which it regularly occurs. While familiarity with typical generic realizations is important, genres change over time and circumstances. Knowing and using relevant genres is a characteristic of professional and other communities (Berkenkotter & Huckin 1995; Bhatia 1993). Therefore, ignorance of genres can exclude practicing lawyers from social participation and legal; practice. In legal English training, the most urgently needed and frequently used genres should be given priorities. As far as reading skill is concerned, the genres of non-litigation documents and litigation documents take the lead in the ranking, followed by legal works, legislation, Case brief , Law report, and the last one is court decision. Legal documents including non-litigation documents and litigation documents ranks top in the order of frequency, which indicates the importance of legal documents in legal practice. The next being legal works, it demonstrates the enthusiastic involvement of Chinese practicing lawyers in the legal English learning/training and self-improvement. Legislation is the most the important source for reference in legal practice involving foreign affairs. Case brief instead of court decision is the most effective channel for examining the previous findings, because it's more brief and systematic; moreover, the doctrine of stare decisis (the precedent must be followed) is one fundamental principle in Common law system.

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Figure 6. Lawyer's ranking of relative importance of different genres in reading

f r equent l y 20 18 16 14 12 10 8 6 4 2 0 nonlitigation documents reading litigation documents reading Legal works reading Law report Legislation reading Legislative interpretatio n reading Case brief reading Court decision reading

f r equent l y

4.5. The most urgent language skills or difficulties quo Successful lawyers are also artists of language use. For foreign legal practice, the practicing lawyers usually possess the four basic language skills of speaking, writing, listening and reading. Speaking and writing involve language production and are therefore referred to as productive skills. Listening and dreading, on the other hand, involve receiving messages and are therefore often referred to as receptive skills. Very often, the practicing lawyers employ a combination of skills at the same time. Speaking and listening usually happen simultaneously, and lawyers may well read and write at the same time. However, not all the four skills gain the equal status in legal practice, so some of them must be given priorities in legal English training. One interesting phenomenon in the investigation is that the most frequently used language skills are non-litigation documents draft, non-litigation documents reading; however, according to the sequence of urgency and difficulty, speaking is the highest in the order, then writing, reading almost the last in both ranking. Such a phenomenon is inherent in China's traditional English teaching, reading is emphasized but speaking is relatively ignored, which leads to so-called `mute English'. In ELP training, the practicing lawyers' needs should be the primary concern for the practitioners. Language, after all, is a vehicle employed in a certain situation, therefore, the target situation play a vital important in legal English learning. The practicing lawyers mention various kinds of reasons for their difficulty in legal English learning or

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training: lack of real target language environment, lack of background information, too many legal and technical glossary, lack of feasible training program and material, the discrepancy of legal English training and practice, limited participation in training etc. As far as the reasons for difficulty in legal English reading are concerned, legal glossary is the top one, because word is only a sign of a meaning, which is especially true for the English language; moreover, there are many loan words including Latin and French vocabulary, and a lot of archaic words and legal jargons. The partial universality and similarity of and familiarity with legal knowledge and genres reduce the difficulty in legal English learning for the practicing lawyers.

Figure 7. The degree of urgency of language skills

needed commonly

40 35 30 25 20 15 10 5 0 unnecessary needed occasionally

Li st eni ng speaki ng r eadi ng w i t i ng r urgent

Figure 8. The degree of difficulty of language skills

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much=absol ute

much

some

no

40 30 20 10 0

absolute

Li st eni ng Speaki ng Readi ng W i t i ng r

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Figure 9.Reasons for difficulty in legal English reading

r eason of di f f i cul t y 40 35 30 25 20 15 10 5 0 l egal gl ossar y sent ence st r ut ur e genr e

r eason of di f f i cul t y

5. Controversies in legal English training In discussing the priority in legal English training, three issues are to be addressed: legal systems, departmental law, linguistic and legal knowledge.

5.1. legal systems and departmental law

The legal systems in the world can be generally divided into two categories: Common Law System and Civil Law System. Most English speaking countries such as UK, US, and most of the colonies of GB in history belong to the former; China belongs to the latter. 37.7% of the practicing lawyers think there one of the legal systems should be the basis in the legal training in terms of content arrangement. 62.3% of them hold the opposite attitude. Usually different fields of law forms corresponding departmental law. 63.8% of the practicing lawyers holds some of departmental law should given priorities, especially those regulating economic activities. 36.1%of them have the negative answer. 5.2. linguistic knowledge Versus legal content

One important fact in legal English training in China is that legal English is taught by different group of people: common language teachers, law dons, and ESP practitioners. It's quite natural for them to have different or conflicting opinions about the selection and arrangement of ELP training materials.

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For many language teachers, law dons, and even ELP practitioners, selection of teaching materials is based on their availability. Furthermore, chosen materials determine the content of the course. Quite often it serves as a justification and explanation of the use of the same syllabus with different students. In learner-centered instruction, the appropriateness of materials includes learner comfort and familiarity with the material, language level, interest, and relevance. However, in some situations practitioners are dependent on the materials and are required to use the same textbook over and over again. Potentially there is nothing bad in using the same teaching materials, if everything is conceptualized through a learner-centered approach. The same article or audio story can be used for developing reading or listening comprehension skills, cultural awareness, expanding vocabulary, etc. Thus, as K. Graves points out, teaching materials are "tools that can be figuratively cut up into component pieces and then rearranged to suite the needs, abilities, and interests of the students in the course (Graves K., 1996: 27). According to Hutchison & Waters, materials are supposed to provide a learning stimulus, organise teaching-learning process, have a coherent view of nature of language and learning, reflect nature of learning tasks and provide correct models of language use to learners. Dudley-Evans & St John proposes some stages to develop materials: Stage 1: Find a text a naturally occurring piece of communication or which might have occurred naturally preferably from the target situation (from client or published data) suited to learners' needs and interests capable of generating classroom activities input can be revised to make it more useful (e.g: dialogue instead of incident report) Stage 2: Think of a task that learners could do at the end of the unit Stage 3: Go to syllabus and decide if the task will benefit learners Important that the carrier content of the text can be exploited for useful real content) Stage 4: Decide what language content the input contains Stage 5: Think of exercises and activities to practice these items Need a range of activities to motivate learners in ESP ­ should develop a range of related micro-skills

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Stage 6: Check the materials against the syllabus to see you are doing something you need to do Stage 7: Present the materials well Stage 8: try the materials in class Stage 9: Revise the materials in light of classroom experience Although most of the books used in EALP discuss legal language, they often fail to adopt a principled language-based approach to teaching legal writing. The books present the material in a logical progression from a legal perspective, but they do not attempt to establish continuity throughout the materials by linking the materials linguistically or discursively. When legal writing is related, it tends to focus on issues of the organization and content of legal documents (genres), but not on the crucial issue of linkage between particular lexico-grammatical and discursive choices and such organization and content. If issues of language and discourse are raised they rarely get past general principles of writing. Therefore, Bhatia et al. propose ` a more useful alternative, in our view, would be to focus on the defining characteristics of legal language, as established through linguistic and discourse analysis. Such a language-based approach could infuse the materials with a framework, a thread of continuity, based more on language (i.e. not exclusively on legal) aspects of legal writing'. Accordingly, four channels may be adopted to develop materials which integrate language and law: research-based materials, materials promoting participation in legal community and culture, a genre-based approach, materials that focus on legal language, not legal content.

6. Conclusion Through the introduction to background information, investigation of the needs of practicing lawyers, analysis of the research results, and discussion of the criteria of material selection, emphasis in legal English training, the paper tries to provide some useful information for the practicing lawyers and ELP practitioners in their legal English training.

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Appendix. Lawyer's Questionnaire ·¹...TM _ f

""

1 ...TM

2 4 C 1 2 3 4 g^ ·_ 1 2 3 4 1 2 3 4 OEW 1 2 3 4 <( 1 2 3 4 1 2 3 4 OEx,£·_ 1 2 3 4 OE 1 2 3 4 1 2 3 4 · } 1 2 3 4 1 2 3 4 Ð,C 1 2 3 4 <£ 1 2 3 4 î·» 1 2 3 4

1 ·»Q

2 --\ Q

3 · 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4

^sOE ·_ ^sOE OEÈ·_ OEÈ,C

¼6

· · Y

3 4 f...TM·_·¹OEä ,, ·_·¹¯ ·_^· ,£ % /

1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4

1 ·»Q

2 --\ Q

3 · 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4

,- ·_·¹

·ð·_« ,L·_OE{ ·_^· <¨ ·Z^:6 ,,

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1 2 3 4

·_·¹

1 2 3 4

4 41 1 ·»È6 2 --\ È6 3 · 4 ­ß 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 42 1 2 · 3 Þ 4 ·» ­ß 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 43 44 5 / 51 52 53 53 ^? 54 " " 55 56 " " 55 ^? 57 : 58

References Berkenkotter, C. & T.N. Huckin. (1995). Genre knowledge and disciplinary communication: Cognition/Culture/power. Hillsdale, NJ: Lawrence Erlbaum.

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Bhatia, V.K. (1993). Analysing genre: language use in professional settings. Longman London & NY: C.N. et al. (2002). "Developing legal writing materials for English second language learners: problems and perspectives". Retrieved from The Internet ESP Journal. Dudley-Evans & St. John. (1998). Developments in ESP: A multi-disciplinary approach. Cambridge: Cambridge University Press. UK Hutchinson, T&A. waters. (1987). English for Specific Purposes. Cambridge: Cambridge University Press. UK Li Rongfu & Song Lei. (1994). Advanced Legal English Course. Chengdu University of Science & Technology Press Luo Junming. (1991). Legal English. Shanghai Foreign Language Press Nigel Bruce. (2002). "Dovetailing language and content: teaching balanced argument in legal problem answer writing". Retrieved from The Internet ESP Journal. Seliger, H.W. & Shohamy, E. (1989). Second language research methods Oxford: Oxford University Press. UK Sommer,B. & Sommer, R. (1991). A practical guide to behavioral research. Oxford: Oxford University Press. UK Swales, J.M. (1990). Genre analysis: English in academic and research settings. Cambridge: Cambridge University Press. .

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A New Evaluation of Law English Teaching Materials Nidal Suleiman Wureidah English Department, Damascus University

Abstract Any evaluation of teaching materials is necessarily subjective, depending on the theoretical approach, practices and preferences of the evaluator. In this study an attempt has been made at an evaluation as realistic and objective as possible. First, the checklists of some linguists were closely scrutinized (e.g. Tucker, Ur, Sheldon, etc.) . Secondly, the same procedure was followed to identify the elements that checklist producers introduce as important criteria by which teachers may evaluate and select an appropriate teaching textbook. The assumption made here was that of all the points made, perhaps, a select set of common-core summary characteristics appearing across checklists can be identified as universal. Finally, the selected criteria are used to evaluate the ESP textbook taught for the fourth year students at Faculty of Law, Damascus University. The present study is an attempt to identify, describe and evaluate Law English learning/ teaching materials as used currently in the Faculty of Law, Damascus University for the fourth year students. It is up to the users of textbooks or other teaching materials to decide whether this goal has been achieved, and if so, to what extent.

1. Introduction

"... materials, in fact, are an essential element within the curriculum, and do more than simply lubricate the wheels of learning. At their best they provide concrete models of desirable classroom practice, they act as curriculum models, and at their very best they fulfill a teacher development role." (Nunan, 1988)

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The present study is an attempt to identify, describe and evaluate Law English learning/ teaching materials as used currently in the Faculty of Law, Damascus University for fourth year students.

2. Materials evaluation- theoretical considerations 2.1 General Evaluation is a part of planning and implementation of a language course, the other parts being the following: needs analysis, course design, teaching/learning process, and assessment. Though in theory there should be a circular movement and linear sequence of the above elements or stages of course planning, in practice evaluation stands in close interaction and interdependence relationship with the teaching/learning process and course design. Evaluation is a matching process (Hutchinson & Waters, 1987:97) designed to establish the degree of match between the needs and available solutions. Evaluation of teaching materials is aimed at assessing the fitness of e.g. a law English material for a particular purpose, e.g. completing a Bachelor course of studies within a faculty for a particular certificate of competency in Law. First, according to Robinson (1991:54-64), ESP materials evaluation is classified as: preliminary evaluation (e.g. using a checklist the teacher or course designer examines and subsequently selects the published materials available on the market before taking up an ESP course)

-

summative or performance evaluation: taking place at the end or after a course and designed to assess whether and to what extent they have been useful and effective- usually applying a test or questionnaire before and after the programme (Alderson, 1979:147)

-

formative, also termed revision evaluation: conducted during the course, with possible modifications, additions or

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adjustments to the needs of a particular course and the trainees.

Law English materials in the form of textbooks are normally of the first and second type whereas CD and software materials are of the third type, although most of them exhibit the features of all the three types of evaluation. Second, evaluation can be qualitative (discussions, interview, though less objective) and quantitative (less subjective, e.g. tests and other means of numerical evaluation). Over the last three decades dependency on the various theoretical approaches to language teaching has been the key- problem in materials evaluation. The Approaches mainly arise from the developments in linguistics, psycholinguistics and cognitive linguistics and their role in the theory of ELT and EFL. These have often influenced the formation of evaluators' own priorities and therefore raise the important issue of subjectivity in the process of evaluation (Sheldon, 1988:240). Evaluation typology normally results from the approaches and various aspects of classification. Changes in the approach also urge for changes in the methodology (checklists, questionnaires, etc.) One of the most important issues to be resolved in materials evaluation therefore is the establishment of as objective evaluation criteria as possible for effective comparative purposes. As a result, in order to be accepted universally, evaluation must also be theory- neutral, systematic, striving at exact objectives and applying theory- based methodology. It is therefore not just a set of random questions. These idealistic, almost unachievable requirements place a great responsibility upon the evaluator who should be aware of strengths, weaknesses, threats and challenges of evaluation. Thus, a quote from Dudley- Evans& St John (1998:129) might prove very useful before immersing into the criterion issue: "A good evaluation emphasizes the success and discusses less successful aspects. It also addresses the crucial who and why issues. Understanding why will enable us to repeat success and avoid the less successful." Before setting out the criteria, a number of questions have to be answered when dealing with textbooks material, i.e.:

·

What is the evaluation conducted for?

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· · ·

What do we evaluate? Is the course competence- based or content- based? Who are the target course trainees? (Non- native learners, levels, socio- cultural background etc.)

· ·

Who is the evaluator? Who collects and provides the data? What means of evaluation are readily available? etc.

Since the materials encompassed in the present study are designed for nonnative English language learners, the theoretical approaches developed and applied in English Language Learning (ELT), English for Foreign Learners (EFL), English as a Second Language (ESL), and English for Specific Purposes (ESP) should be used in the process of surveying, reviewing and evaluating the selected Law English textbook. Evaluation of teaching materials are both needed and made by: · · · The Law English teacher The Law English learner The Law English administrator (educational authorities, Law Faculty administration, etc.)

The evaluation in this study will be restricted to the first one whereas the other ones will (hopefully) be the subject of applied research within a wider project to follow this study.

2.2 Evaluation of materials- textbooks The present study basically relies upon textbooks and the prototype kind of language learning/ teaching material. Textbooks are usually published commercial materials. They have certain advantages over in ­ house type of materials in teaching English for General Purposes (EGP), e.g. well- proven and tested methodology, authoritative status, etc. Both published and in-house materials have been used in Legal English Faculties, over the last three decades, i.e. since the appearance of Strevens' Seafaring in 1972, the first in a series of influential textbooks in modern, communicative- based language teaching in (ESP). In- house materials are tailored to suit the learner's specific needs and are therefore more flexible in terms of choice of the most appropriate methods, strategies, tasks, and learning activities. Therefore,

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mixed materials, i.e. published textbooks accompanied with shorter in- house materials are recommended in ESP(e.g. a comprehensive Law English textbook supplemented by teacher/ student made exercises or projects in, say, Legal colleaguecolleague communication). There are numerous factors to be taken into account when evaluating textbooks, i.e. when deciding on the most appropriate textbook for a particular course or purpose. The same also holds for evaluative models. According to Sheldon (1988: 245), evaluation is "a subjective, rule of thumb activity" in which "no formula, grid, or system will ever provide a definitive yardstick". In spite of such limitations and restrictions to textbook evaluation, we subscribe to the view that the assessor/ evaluator is expected: "to match the materials with the goals and objectives of the programme, and to ensure that they are consistent with one's belief about the nature of language and learning as well as with one's learners' attitudes, beliefs and preferences" (Nunan,1991: 209); and thus make evaluation a coherent, systematic and thoughtful activity. In general, EFL/ESL textbooks have brought with them a range of reactions. Responses often fluctuate between these two extremes. One position is that they are valid, useful, and labor-saving tools. The other position holds that they are "masses of rubbish skillfully marketed" (Brumfit, 1980: 30). During the last three decades, these reactions have essentially been based on ad hoc textbook evaluation checklists. And the shaky theoretical basis of such checklists and the subjectivity of judgements have often been a source of disappointment. No textbook is perfect. Therefore, teachers should have the option of assigning supplementary materials based on their own specific needs in their own specific teaching situation.

Ur (1996) quotes the following arguments for using textbooks: · · · · · · A textbook is a framework which regulates and times the programs, In the eyes of learners, no textbook means no purpose, Without a textbook, learners think their learning is not taken seriously, In many situations, a textbook can serve as a syllabus, A textbook provides ready- made teaching texts and learning tasks, A textbook is a cheap way of providing learning materials,

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·

A learner without a textbook is out of focus and teacher- dependent, and perhaps most important of all,

·

For

novice

teachers

a

textbook

means

security,

guidance,

and

support.( Ur,1996:183-195)

While the following are the counter- arguments: · If every group of students has different needs, no one textbook can be a response to all differing needs, · · · Topics in a textbook may not be relevant for and interesting to all, A textbook is confining, i.e., it inhibits teachers' creativity, A textbook of necessity sets prearranged sequence and structure that may not be realistic and situation- friendly, · Textbooks have their own rationale, and as such they cannot by their nature cater for a variety of levels, every type of learning styles, and every category · · Of learning strategies that often exist in the class, and Teachers may find themselves as mediators with no free hand and slave, in fact, to others' judgments about what is good and what is not. (Ur, 1996: 183195)

Any law English teacher would probably agree with the above arguments and perhaps add a number of items from her/his own experience, possibly placing different weight on their sequence or importance. Whatever the choice in selecting and evaluating language learning/ teaching materials, this process must be systematic, realistic and objective. H. Ansary & Babaii (2000) also emphasizes the importance of graphical presentation of the results of textbook evaluation. To this end, a checklist approach has been offered by a number of scholars (Chastain, 1971; Tucker, 1975; Candlin & Breen, 1979; Daoud & CelceMurcia, 1979; Williams, 1983; Breen et al., 1987; Hutchinson and Waters, 1987; Sheldon, 1988; Skierso, 1991; Cunningsworth, 1995; Ur, 1996; Littlejohn, 1996; to name but a few). In order to assess the textbooks, these invariably deal with:

·

External criteria (extra- linguistic: authenticity of language, availability of supplementary materials, adequate instructions for the student and guidance

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for the teacher, appropriate level of integration into the course of study, quality of editing and publishing, price) and · Internal criteria (related to language: pronunciation, grammar, content).

The external criteria address such aspects as completeness or appropriateness of presentation, psycholinguistic, cognitive processes, social and sociolinguistic circumstances (textbook users and type of use), etc. McDonough and Shaw (1993:6869) provide a list of external criteria usually found in the introduction and contents page, or questions such as: the intended audience, proficiency level, context within which the materials are to be used, method of presentation and organization of language into teachable units (i.e. topics covered), author's views of language and methodology (e.g. communicative approach), vocabulary list, visual materials and their integration into the text, layout of units and the whole textbook, culturally specific information, inclusion of audio/ video material, inclusion of tests (see also Atkins, 2001). The internal criteria assess, for example, pronunciation or grammatical issues (carrier vs. real content, appropriate sequencing of grammatical units, adequacy of drills, vocabulary, collocations, etc.) These also include (cf. McDonough and Shaw, 1993: 75): · · · · The presentation of the (four) skills in the materials The grading and sequencing of the materials 'discourse' skills (presence of appropriate text beyond the sentence) Listening skills: authentic or artificial recordings (cf. SMCP vs. real communications, Pritchard, 2000) · · steps: a) classification of Law English textbooks b) scrutinizing textbooks against internal and external criteria c) identifying the pros and cons d) establishing common- core summary characteristics in the form of tables. Speaking skills: the nature of real interaction vs. artificial dialogues Efficaciousness of the teacher's guide

The complete procedure of evaluation should therefore encompass the following

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In this context the six basic criteria offered in Robinson (1991:61; quoted from Moore, 1977) for evaluating ESP materials are also worth considering as the very basic, principal criteria when evaluating Law English materials:

1. PURPOSE 2. TYPE

Is the purpose clearly defined? Does the exercise type effectively and economically accomplish purpose?

3. CONTENT

Is the ratio of language given/ student task economic? Are instructions to students clear?

4. INTEREST 5. AUTHENTICITY 6. DIFFICULTY

Is it interesting? Is it challenging? Does it contain distracting difficulties?

Finally, quoted below is a list of useful questions in evaluating EFL materials suggested by C. Griffiths (1995). With modification, these might be applicable not only to EGP but also to ESP and Law English textbooks, some of which are the likely candidates of questions for insertion in the legal English checklist:

· · · · · · · · · ·

Does the material match learner objectives? Is the material learner- centered? Does the material facilitate interactive learning? Is the material socio- culturally appropriate? Is the material up- to- date? Are vocabulary and comprehensible input levels well-graded? Is the material interesting and visually attractive? Is the material relevant to real life? Is the material easy to use? How ethnocentric is the material?

These criteria, combined with those offered by Tucker 1975, Griffiths 1995, and Ur 1996, will constitute the basis for establishing the textbook evaluation criteria and

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checklist for the purpose of this thesis. They will be upgraded, modified and extended as appropriate to suit the requirements of this evaluation.

The most usual methods or means of evaluation, found in a number of authors, are the following: Questionnaires, checklists, rating scales, interviews, observation, discussion, records and assessment. Questionnaires, checklists, and rating scales lend themselves to the ease of quantification, whereas the rest of the methods are quality-oriented, and therefore more difficult, time- consuming, etc. Questionnaires often refer to needs analysis and course design. They are designed by teachers for students, ex students. The main problem is their length and possible misinterpretation of questions (For more information and samples of questionnaires see Dudley-Evans &St John 1998:140-144). Checklists are normally shorter and more accurate, focused usually on a portion of the material (e.g. exercises, developing communicative competence, learning skills). They may be closed or open. Being more accurate, rating scales are sometimes more advantageous though, as well as other methods, also liable to subjectivity of the participant in the evaluation.

As early as 1975 Tucker offered a three-component checklist: · A set of criteria consistent with the basic linguistic, psychological, and pedagogical principles, · A rating scheme which provides a method for judging the comparative weightings of a textbook's merits, and · A chart/ graph which provides a visual comparison between the evaluator's opinion of the book and a hypothetical ideal model, hence facilitating a quick and easy display of the evaluator's judgment. (Tucker,1975: 355-360)

A more recent approach was offered by Penny Ur (1996). Among the sixteen textbook evaluation criteria the following are highlighted here: · Objectives explicitly laid out in an introduction, and implemented in the material · Systematic coverage of syllabus

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· · ·

Content clearly organized and graded (by difficulty) Appropriate visual materials available Varied topics and tasks so as to provide for different learners, learning styles, interests, etc.

· · · · · ·

Clear instructions Periodic review and test sections Plenty of authentic language Good pronunciation, vocabulary and grammar explanation and practice Fluency practice in all four skills Encourages learners to develop own learning strategies and to become independent in their learning

· ·

Adequate guidance for the teacher Audio cassette (Ur, 1996:186)

We might add a few more criteria: · · · Follows cognitive processes in Legal science Develops communicative skills Follows rules of content- based learning

There are two basic approaches to the evaluation of any language learning material and these can be applied to Legal English materials as well. Both involve the creation of checklists or questionnaires. In the first approach a set of different aspects and issues of the materials can be set up, and then the degree of their match to teaching/learning situations is checked or measured. In other words, the evaluator considers whether or not each of a set of materials is suitable or not for a particular case. Thus, we can check and compare the Legal English textbook as to whether at all and to what extent the material meets the following requirements for the potential learner (would that suit my students/ my course?): a) specific type of learner, b) teaching situation, c) coverage of the topics of the technical subjects in the curriculum d) communicative approach to learning: the four skills

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e) content- based learning f) competence- based syllabus g) task-based activities h) vocabulary development i) understanding grammar j) cognitive self-learning k) diversity of classroom activities for motivation purposes

In the second approach, each material (textbook) is studied separately against the complete list of issues raised in the checklist. By studying the claims by the authors or publishers, the evaluator (e.g. the course reviewer, not currently teaching) considers what range of students, situations, etc. a particular material would suit and which not. This study follows the second approach although it also combines it with the elements of the first approach.

The Current Study On the basis of the theoretical and practical issues of materials evaluation set out above, both for EGP and ESP, the following checklist is here proposed for Legal English textbooks or coursebooks. It is in fact an extension and adaptation of the checklist suggested by Sheldon (1988: 242) and includes external and internal factors of evaluation: Evaluation of Legal English Materials 1. Checklist-External Factors of Evaluation External criteria Yes/No, scalar rating,

description, comment 1. 2. 3. 4. 5. Author(s) Title Publisher ISBN: (total pages: Type (textbook, ) video, CD, software,

supporting/back-up material) 6. Components: free tests SB/TB/WB/cassette/video/CD/

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7. 8. 9. 10. 11.

Length (units /hours): Target learners: Target skills: Target teachers: Purpose/rationale (designed for the students of....)

12. 13.

Availability (e.g. readily available) Level +user definition (beginners, lowerintermediate, intermediate, upper-intermediate, advanced)

14. 15.

Layout/graphics (clear, attractive print, ...) Accessibility/ organization (arrangement of sections, parts, reading texts, exercises, ...)

16.

Physical characteristics (e.g. space to write notes, fill out exercises) (1-6)

17.

Supplementary materials (vocabulary, tables, additional reading, video, etc.)

18.

Cultural bias (1-6) (meeting the requirements of multi-cultural/ lingual crews/ students; yes/no)

19.

Reference to other materials (legal reference books, conventions, regulations, subject

textbooks, ...) 20. General assessment of the material (1-6) Degree of appropriateness for a specific course (descriptive assessment: very high- highmedium- low)

2. Checklist- Internal factors of evaluation

Internal criteria

Yes/No,

scalar

rating,

description, comment 21. 22. Purpose/ objectives- explained in introduction approaches (acceptable to course curriculum,

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administration of law faculty) 23. Type of legal English (comprehensive/ general law English, register- oriented, genre- oriented, spoken communication, ...) 24. The nature of learning (content- based, skillbased, task- based, competence- based, ...) 25. Content presentation (systematic coverage of syllabus; topics covered) 26. Organization- layout (content clearly organized into units) 27. Sequenced grading of content themes and topics 28. Authenticity (plenty of authentic language; modified texts) 29. Coverage curriculum) 30. 31. Guidance to learner (in introduction, units) Interesting & varied topics & tasks (to provide for different learner levels, styles) (1-6) 32. Development of communicative competence: (1-6) fluency in communicative functions: requests, asking questions, permission; of subject contents (in the

possibility; probability; compulsion, obligation, prohibition, denial, negation) 33. Content- based text & exercises (totally, partly, none) 34. 35. Pronunciation The four skills (listening, reading, speaking, writing) (description of the methods, tasks, activities, and degree 36. Vocabulary development (1-6) (explanation and practice): terminology, multi- word lexical units, EGP lexical items in specialized use

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37.

Grammar (explanation and practice): (1-6) modals, tenses, passive; nominalizations, syntax of prepositional/adverbial complex sentences) phrases,

38.

Discourse elements- textuality (1-6) (discourse markers, coherence, cohesion)

39.

Exercises (1-6) (relevant, to ­the- point, practicing)

40. 41. 42. 43.

Sequenced grading of exercises (1-6) Clear instructions for exercises (1-6) Key to exercises Supplementary (visual/audio) materials

available (audio cassette, video, CD, multimedia, software, etc.) 44. Students can develop own learning strategiesindependent learning (1-6) 45. Guidance to teacher (adequate, not to heavy preparation load) 46. Assessment (1-6) (in exercises, revision/review, final test) Assessment (descriptive evaluation)

One final note concerning checklist should be made here. Checklists are not only intended for facilitating orientation when making first glance decisions on the selection of appropriate materials or resources for any ESP or Legal English course. Subjectivity is the main enemy of any evaluation for any purpose and is always present, no matter how impartial or un- biased some material/ resource may be. In spite of many disadvantages attributed them, checklists have imposed themselves as a viable option and as one of the most objective means of evaluation. This does not however exclude any other means of a more 'humane' assessment. In this survey no preference has been given to any particular material because it is a well proven practice that only a thoughtfully selected set of various resources and materials,

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combined with proper needs analysis, teacher's own experience, and clear goals and objectives of a course, are likely to yield best results in teaching legal English.

Method Here we would like to document the materials that we used and the procedures that we followed to support the intent of this study.

Materials The following EFL/ESL textbook evaluation schemes served as the corpus of the present study:

·

Tucker, C. A. "Evaluating beginning textbooks". English Teaching Forum, 13, 1975, 355-361. Sheldon, L. "Evaluating ELT textbooks and materials". ELT Journal, 42 (4), 1988, 237-246.

·

·

Ur, P.

A course in language teaching: Practice & Theory. Cambridge:

Cambridge University Press, 1996. pp. 184-187 First, the checklists were closely scrutinized. Secondly, the same procedure was followed to identify the elements that checklist producers introduce as important criteria by which teachers may evaluate and select an appropriate teaching text. The assumption made here was that of all the points made, perhaps, a select set of common-core summary characteristics appearing across checklists can be identified as universal. Finally, applying the selected criteria to evaluate the legal textbook under investigation.

Discussion and application Any textbook should be used judiciously, since it cannot cater equally to the requirements of every classroom setting (Williams, 1983:251).This study involves the analysis and checklist evaluation of the current textbook applied at the faculty of Law, Damascus University for the fourth year students. The textbook is entitled An Introduction to the Science of Law.

The study reveals the following external features of the selected materials:

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a. The textbooks are mainly designed for intermediate to upperintermediate level students, not accompanied by a video through creation of multimedia supplementary materials (CD). b. In terms of extra-linguistic (i.e. subject content and its organization, the textbook generally follow the themes and topics of technical subjects of the course of study (sources of Law, classifications of Law,..) ­coverage of curricula is fairly high. c. The textbook is not supported by audiocassettes as supplementary material. d. Poor or insufficient cultural bias: variations between standard and real communication, insufficient insistence on area and social differences ( pronunciation and usage, law English as international language mainly spoken by non-native speakers, linguistic aspects of multi- national and multi- cultural members of discourse community) e. Complete non- existence of student's worksheets. f. Steady improvement of layout. g. Availability of the textbook

With respect to internal factors of evaluation (methodological issues), the textbook examined exhibit the following characteristics: a. b. The purpose and objectives are not clearly explained in the introduction The textbook does not follow the strategies of the communicative approach; there is not any practicing exercise at all. c. Teaching English for legal students is both content-based and traditional translation method. This fact is not sufficient for the absence of tasks, exercises and activities and for the existence of the Arabic translation for each English page in the book. d. The organization (structure) of the units/ lessons is somehow unvaried: i. no prediction (basic terms for oral discussion) ii. reading text iii. no notes on vocabulary and phrases, but the second part of the book introduces terminology for the first part which

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consists of various topics on Law. iv. no exercises what so ever (comprehension, lexical, or grammatical) v. no assessment vi. no grammar vii. no supplements e. f. g. Low stimulation of developing students' own learning strategies The principle of authenticity of text is present in the textbook The integration of the four language skills ( reading, writing, listening, speaking) is ignored in the textbook. No questions, exercises, or activities are present in the book; translation is the only clearly stated skill. h. Vocabulary development is a major feature of the textbook studied, especially providing the legal terminology in the second part. i. Tasks and learning activities are not existed at all.

Generally, it can be noted that the textbook does not mirror general developments in ELT and EFL, and especially ESP, over the last three decades (prevailing application of the communicative approach to teaching, and learning foreign languages, steady but slow and restricted introduction of content-based learning, learner-centered activities; cf. Cole et al. 2002). A new textbook that meets most of the requirements of learner-centered, content-based learning and communicative approach to learning and teaching legal English is needed. The material is needed to fill up an important gap between English for General Purposes (EGP) and English for Law as a special type of ESP. It should also offer strategies and activities in communicative learning as well as exercises in linguistic functions extremely important for the legal discourse /text (i.e. English at court, English at the lawyer office, legal case report, etc.) The textbook should primarily meet the specific requirements of acquiring skills in English for General Purposes (EGP) and only secondly for legal English. Finally, it is significant to note that the topics covered by the textbook taught at the Faculty of Law, Damascus University are neither interesting nor beneficial simply because third and fourth year students usually study in English what they had studied earlier in Arabic during their first academic year. Thus, students have a low motivation since they know everything about the subject matter of their textbook.

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This study therefore emphasizes the necessity for laying down acceptable standards for developing and designing a comprehensive (all-inclusive) legal English textbook as a recommended model teaching material at the faculty of Law, Damascus University. These standards should include the following:

·

Commonly agreed syllabus based on the students' needs at Damascus University taking into consideration the local conditions and context.

·

Textbook organization into a set of obligatory units according to subject matter and optional units according to students' needs development.

· ·

Level of target students ( intermediate and above) Standards on communicative competence to be acquired after completion of the course.

· · ·

Minimum standards of content- based learning within the textbook Degree of authenticity of materials Learning skills(listening, speaking, reading, writing, vocabulary, grammar, discourse and pragmatics)

·

A set of obligatory tasks and activities ensuring diversity and attracting students' interest( e.g. role- play, pair-work, note-taking, making an outline, report writing, interviews, projects, etc.)

· ·

Development of student self- learning strategies, Criteria and forms of assessment

Conclusion Any evaluation of teaching materials is necessarily subjective, depending on the theoretical approach, practices and preferences of the evaluator. In this study an attempt has been made at an evaluation as realistic and objective as possible. It is up to the users of particular textbooks or other materials to decide whether this goal has been achieved, and if so, to what extent. There have been many complaints over the last two or three decades about the lack of good, comprehensive teaching materials for legal English. Therefore, following this survey and feedback from law English teachers, a suitable questionnaire will be worked out asking participants for new information and updates

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concerning legal English resources. The new information will result in a complete, more comprehensive list of richly annotated learning/ teaching materials and resources. Through this evaluation of legal textbooks, it is hoped that language professionals will gain some knowledge on how to perform this procedure for themselves. Textbooks that appear sound on the surface may often lack many of the criteria of a truly superior book. Therefore, it is necessary for individuals who are making these choices to carefully examine all aspects of the textbook and compare it against an assessment tool. An evaluation checklist, whether adopted from another author or created by oneself, serves to focus this examination and ensures that significant factors will not be missed. This process is going to continue to be demanding as publishers provide more and more options to teachers. With the growth of computer assisted language learning, the role of textbook may be changing, but it is unlikely that it will ever disappear. Therefore, it is necessary for teachers to be well-equipped with the skills to evaluate materials to ensure that students are using the highest quality texts possible and that their language learning experience is enhanced, not hindered, by the textbooks used in their classrooms.

References Alderson, J.C. (1979). Materials evaluation in Harper, (Ed). (pp 145-55) Ansary, Hasan and Esmat Babaii. (2002). Universal Characteristics of EFL/ESL Textbooks: A Step Towards Systematic Textbook Evaluation. The Internet TESL Journal, Vol. VIII, No. 2, February. http://iteslj.org/Articles/Ansary-Textbooks/ Atkins, A. (2001). An evaluation of the coursebook used in Oral Communication One at a privately funded senior high school in Japan. http:/www.cels.bham.ac.uk/ resources/ essays/ atkins3.pdf Breen, M. & C. Candlin. (1987). Which materials? A consumer's and designer's guide. In Sheldon, L. ELT Textbooks and Mterials: problems in Evaluation and Development. ELT Document 126. Oxford: MEP/ The British Council. Brumfit, C. J. (1980). Seven last slogans. Modern Language Journal, 7 (1), 30-31. Dudley- Evans, T. & M. J. St John. (1998). Developments in English for Specific Purposes. Cambridge: Cambridge University Press.

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Candlin, C.N. & Breen, M.P. (1979). Evaluating, adapting and innovating language teaching materials. In C. Yorio, K. Perkins and J. Schacter (Eds.) On TESOL '79: The learner in focus. Washington, D.C.: Teachers of English to Speakers of Other Languages. pp. 86-108 Chastain, K. (1971). The development of modern language skills: Theory to practice. Philadelphia: The Center for Curriculum Development, Inc., pp. 376-384. Cole, C., B. Pritchard, P. Trenkner. (2002). Content-Based Instruction ­ A Challenge for the Learning and Teaching of Maritime English. Proceedings of the Workshop on Maritime English 3A, Qingdao: People's Republic of China. Cunningsworth, A. (1995). Choosing Your Coursebook. Oxford: MacMillan Heinemann, English Language Teaching. Daoud, A. & Celce-Murcia, M. (1979). Selecting and evaluating a textbook. In M. Celce-Murcia and L. McIntosh (Eds.), Teaching English as a second or foreign language. Cambridge, MA: Newbury House Publishers. pp. 302-307 Griffiths, C. 'Evaluating Materials for Teaching English to Adult Speakers of Other Languages'. FORUM, VO.133 No 3: 50-55. Hutchinson, T. & Waters, A.(1987). English for Specific Purposes: A LearningCentered Approach. Cambridge: Cambridge University Press. Littlejohn, A. (1996). The analysis of language teaching materials: Inside the Trojan Horse. In B. Tomlinson, (Ed.). Materials Development in Language Teaching. Cambridge: Cambridge University Press. pp. 191- 213. McDonough & Shaw.( 1993). Materials and Methods in ELT. Oxford: Blackwell. Nunan, D. (1988). The Learner-Centered Curriculum. Cambridge: Cambridge University Press. Nunan, D. ( 1991). Language Teaching Methodology. Prentice Hall. Pritchard, B. (2000). Maritime VHF Communications: Standards versus Practice. In: Proceedings of Workshop on Maritime English (WOME 2A), IMLA, Dalian Maritime University, Dalian, China. pp. 44-54. Robinson, P. (1991). ESP Today: A Practitioner's Guide. London: Prentice Hall. Sheldon, L.( 1988). Evaluating ELT Textbooks and Materials. ELT Journal, 42 (4) Shukri, A. (1983). An Introduction to the Science of Law. Damascus: Damascus University Press. Skierso, A. ( 1991). Textbook selection and evaluation. In M. Celce-Murcia (Ed.), Teaching English as a second or foreign language. Boston, MA: Heinle & Heinle

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Publishers. pp. 432-453 Strevens, P. (1972). Seafaring. London: Collier-MacMillan Publishing. Tucker, C. A. (1975). Evaluating Beginning Textbooks. English Teaching Forum, 13, 355-361 Ur, P. (1996). A Course in Language Teaching: Practice & Theory. Cambridge: Cambridge University Press. pp. 184-187 Williams, D. (1983). Developing criteria for textbook evaluation. ELT Journal, 37(3), 251-255.

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Title Corruption and Other Distortions as Variables in Language Education Author Thor May

Bio : Thor May has been teaching English to non-native speakers, and lecturing linguistics, since 1976. This work has taken him to seven countries in Oceania and East Asia, mostly with tertiary students, but with a couple of detours to teach secondary students and young children. He has trained teachers in Australia, Fiji and South Korea. At the moment he is teaching in Zhengzhou, Henan Province, China. Many of his papers, essays and stories may be seen on his website at http://thormay.net . His PhD, "Language Tangle - Predicting and Facilitating Outcomes in Language Education", is currently being examined at an Australian university. Chapter summaries and the conclusion can be viewed at http://thormay.net/lxesl/teach1.html .

Abstract: This paper examines some of the ways in which foreign language education has been affected by corrupt practices and various other distortions of best teaching practice. Particular attention is paid to South Korea. The nature of corruption and its social origins are identified. Pressures affecting students, teachers and institutions are all seen to play a part. It is noted that mass education is a simulation which leaves space for fraud, whereas actual live language performance is its own test. Perhaps as a consequence, the gradual insertion of a new language code like English into a speech community might succeed over the long term even where immediate educational practices suggest failure.

1. What is Corruption? Issues of probity and corruption are inseparable from the evaluation of language education outcomes in institutional contexts. Interestingly, they are absolutely irrelevant to estimating another's language ability in person to person communication.

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In other words, the significance of corruption, fraud etc. in language learning contexts is a direct product of the language teaching process being a simulation. Where explicit values and procedures are accepted by a cultural group, corruption could be defined as the fraudulent use of those procedures and values to achieve personal ends. In practice however, few cultures offer equal opportunities to all members, and the idea of shared values itself is very approximate. On any given index, participation in a cultural group will fall into some kind of bell curve, Food, personal security, marriage and procreation, an acceptable role in the group ... are all pretty constant needs in human societies, and most cultures must therefore offer credible ways to satisfy these needs to most members. In fact, for huge numbers of people, many communities fail to provide these basic needs. It is probably inevitable that some of those who are deprived in this way will seek an avenue to subvert the system. Corruption under those conditions is less a moral issue than a pragmatic necessity. Beyond basic survival needs, the members of communities everywhere acquire a sense of entitlement to valued cultural perquisites. In modern societies, formal education is high on the list of felt entitlements by families and individuals. Access to formal education is governed by a combination of rules, examinations and the ability to pay. The process is marked at each point by the issuance of certificates. These certificates have a large influence on the life opportunities of their holders. Such mechanisms in their essence are not specific to education. Similar devices have been used throughout recorded history to anoint selected groups with special privileges, whether military rights, land holding, imperial court membership or trading monopolies. In every one of these instances, the system has been constantly subverted and sometimes destroyed by those excluded at the margin and seeking privilege through corruption. Educational opportunity is no different.

2. Linguistic Inequality and Opportunity Inequality is another major issue both within and between nations. Where second language learning has become a general cultural requirement, inequality of access to learn that language not only affects outcomes, but can be an explosive political problem. For example, the extra-curricular coaching of children does not come cheap. Amongst the middle classes of emerging economies it can absorb a major part of disposable income, and split families apart. South Korean makes a good case study of the phenomenon.

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South Korea has a class of people called "wild goose fathers" who work themselves into the ground to keep the mother and her children supported in a foreign country, usually America, on the premise that they will receive a superior English language education (Kim Yoon-ah 2004). In the nature of the thing, "wild goose fathers" are typically upper class professionals, who not only suffer loneliness and the destruction of their families pursuing the 'English dream', but also the jealous contempt of countless others who cannot contemplate such a luxury. The children themselves suffer social and academic problems if they return to Korea (Kim Cheng-won 2006). Then there are the hagwons, ubiquitous coaching schools which populate the second floors of every street in every suburb of every South Korean city (Korea Times, 10 July 2005). In fact they have analogues worldwide from Bombay to Buenos Aires, from Moscow to Madrid. It is no surprise that hagwons have their own informal pecking order of price, prestige and competence. Official statistics (e.g. KEDI 2000) can only partially keep track of private coaching schools. There are significant systemic problems in the Korean hagwon system, not least unqualified owner/managers and poor teaching, which may render it unstable over time (Bauman 2006), but at least currently these institutions are the major venue for language learning. A family's income effectively decides the kind of coaching school the children can be sent to, often until 10pm in the evening. This in turn generates intense social and political passion. The government day schools in South Korea, with their large classes and regimented curriculums are widely held to be incapable of providing a useable language education. A large number of middle schools, high schools and universities in South Korea are private (about 40% of schools in Seoul), but only some offer a better real education than the government version, and illegal practices in many of them are a source of continuing national scandal. To mitigate this volatile mix, the government is expanding a limited system of native English teacher assistants to 2,900 by 2010. Reflecting the trend to earlier English language education, 30% of primary schools are already supplementing their weekly one or two hours of English with extra-curricular classes (Lee, In-Chul 2006). Government sponsored 'television coaching' has recently begun for those unable to blow the family income on a cram school. As a sop to egalitarianism, private language coaching by foreigners is strictly forbidden, and ferociously punished (big fine, loss of visa) - but widely practiced.

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South Korea is a highly homogeneous nation, viewed from the outside, though riven by factions and perceived inequalities from the inside. In many other nations the real inequalities are far greater, and often buttressed by rigid divisions of race, class, religion and income. Language is always present in these scenarios, a kind of currency that can be turned to many uses. On the one hand it is an instrument of division and privilege, jealously guarded with all the forces that power can bring to bear. On the other hand, it is a binding agent without which no political entity can hope to govern the multitudes, no business or trade can proceed, and no culture can survive. Not surprisingly the friction that arises from so many competing roles is richly represented in language education, and is likely to come to a head in public evaluations of language performance. The use of South Korean case studies and examples arise from my own experience, but with local variations the same kind of paradoxes can be found within almost any society. It is true that each region, country and culture poses particular problems for second language learning. Some of these are specific to a particular time and place, such as the insanities of Khmer Rouge Cambodia, or China's Cultural Revolution, where extreme chauvinism could render any display of foreign language skills fatal. Other problems are more generally human with local characteristics. In East Asian cultures some form of Confucian education has been a prime avenue for family and personal advancement for up to two millennia. Classical Chinese scholarship was the medium, not only in China, but also in surrounding regions. Korea had Confucian academies from a very early date (and perhaps other kinds of training centers too), and a recognized government sponsored university in the kingdom of Koguryo by 372 AD (Korea Information Service 2001). Access to the privileged opportunities of Confucian education for male children was ideally open to all, but in practice open to those with the leisure and money to study. In principle, success in the Confucian system was based on merit. East Asian history is full of accounts where that meritocracy was corrupted, sometimes on a large scale. For buffer states such as Korea, Chinese education meant facility in a second language, Chinese (though mostly written classical Chinese), just as today it means facility in English. Then as now families were prepared to make large sacrifices both to get their children officially proficient in Chinese and to get them through the Confucian educational program. Then as now, those precluded by status, wealth or limited academic ability would often try and succeed to obtain by corruption the benefits they

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were otherwise denied. Corruption can take many forms, and it would be a rare teacher who has not experienced some kind of pressure. Sometimes it can come down to outright bribery :

This year the Korea Federation of Teachers' Associations surveyed 5,420 elementary, middle and high school teachers across the country. It revealed that 27% of teachers have accepted bribes from parents in exchange for giving their students preferable treatment. (Card 2005)

During inspections on 1,124 of 1,673 primary, middle and high schools around the country in 2004 and 2005, educational authorities detected 7,498 cases of irregularities. The authorities slapped financial sanctions to the tune of 14.7 billion won on the schools. They also took disciplinary action against 10,223 school officials, including firing 27. (Chung Ah-young, Korea Times, 9 January 2006)

In China schooling in general has moved on from the depredations of ideological extremism to something resembling a gangster enterprise in many locales :

" In recent years the burden of [education] costs has shifted increasingly to Chinese households. China has 300 million school-aged children, and ruthless extraction of fees from their parents rakes in as much as 200 billion yuan, making education China's second major profiteering enterprise [after real estate]". (Shen 2005)

The long term consequences of an extreme laissez faire approach to language education in China have yet to play out, but may well follow something like the South Korean pattern.

3. The Roles of Explicit and Covert Values All societies have not only explicit values but covert values. Covert values frequently contradict explicit values, and this is a major problem in educational systems everywhere. Working class families in the West for example may often have covert values that denigrate official institutions like schools. After living in China for two years and South Korea for over five years, my strong sense is that for many people,

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subverting official institutions to achieve personal ends is not privately regarded as wrong; (indeed that covert attitude may be widespread everywhere). The Chosun dynasty man who got his Confucian diploma and appointment could still make his family rich, no matter how he came by the diploma. For the modern man or woman, the glory of public success - a TOEIC score of 900+, a scholarship, a prestigious appointment etc - is still glorious, no matter how it was come by. Shame (and sometimes suicide**) only come if the deception is unmasked. My intention here is not to adopt a moral posture, merely to be factual within the limits of my observations. Fraud in language education is an important matter in East Asia (and elsewhere). In principle, the acid test of language teaching outcomes is a practical facility to use the target language in real communication. However a mass education system is a gigantic simulation machine with outcomes that are promoted as analogues of life ability rather than true performance. There are excellent reasons for this, but between the mirror and the dust of the highway lies many a mirage. Simulation training is a matter of life and death for airline pilots and surgeons. It can't be faked. The incompetent training and fraudulent certification of a language student is not a mortal threat. Self-rationalized acceptance of the deviance is fairly easy. Thus, it is not unusual for all the parties in an educational process to have some vested interest in skewing the supposed outcomes. Judgements about both teacher competence and a school's reputation turn on the examination success of students. The life chances of students turn upon their examination success. This is rich territory for a conspiracy of deception. The problem is compounded by unrealistic political demands, such as the insistence in South Korea that all students study English, regardless of aptitude or interest, and that all tertiary graduates should have a certified competence in English. Corruption may be built into East Asian education systems because of the cultural paradigm. One of the primary cultural values in these societies is 'face'. In fact, the face factor is found in most cultures, and is closely related to concepts of prestige, narcissism, 'keeping up with the Joneses' etc. However the primacy of the face question in traditionally Confucian cultures, gives it great power, especially in the absence of an equally powerful countervailing value, such as truth-telling. This does not mean that all East Asians don't care about the truth. On the contrary. However it often does mean that where there is a conflict between perhaps unpleasant confrontation or candour and preserving the face of another party (especially one with power), then a choice will typically be made to avoid confrontation or candour. This,

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combined with the hierarchical construction of so-called Confucian values means that juniors are both formally incapable of challenging the system, and enculturated into it. The postgraduate environment in South Korea is symptomatic :

Influential professors at prestigious schools "are allowed to build their own private kingdoms, promoting and demoting their underlings largely at will," said Tikhonov, a naturalized Korean of Russian origin also known as Pak Noja. Listing professors as senior authors on papers even if they contributed little, fabricating receipts to cover up their personal use of research funds, and running errands for them are just a few of the headaches grad school students say they face. (Lim 2006)

4. Failure and Its Consequences It is in the nature of mass education systems as they are designed that individuals will often have to confront their failure to learn. There can be any number of reasons for the failure, some culpable and some unavoidable, some due to the student and some due to teachers and administrations. Regardless of reasons, the potential for failure or rejection arises constantly. Anyone who has survived a formal education system has encountered moments of truth, and most working within the Western tradition have learned to cope in one way or another with some failure. It is not unusual for the failure to be psychologically damaging. If properly managed, failure can also lead to growth, discovery and maturity. In East Asian institutional settings children are allowed to fail more obviously than adults, perhaps because they lack power. They are relentlessly pushed not to fail by most parents, but it is the nature of the points game being played that not everyone can be a winner for the top places. In South Korea every year there are a number of student suicides directly related to public examination failure: 63% of South Korean teenagers says they have contemplated suicide, often for reasons of failure (Chung Ah-young 2005). The actual substance of knowledge acquisition involved tends to be secondary to all parties. There is public awareness of this problem, but real change only comes slowly, with or without government prodding. Singapore for example wrestles with the same issue as South Korea (Nee 2001).

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Graduation to university age is roughly equivalent to reaching adulthood, when face truly becomes a governing cultural factor. The brutal scramble for university entrance qualifying marks is over, the die is cast for life. The winners go to a handful of prestigious universities. The also-rans go ... well they go to university too. Take South Koreans. With the world's highest investment of GDP in education (7.1% : Schleicher 2003), the percentage of young people going on to higher education (including 2 year colleges) is very great and increasing. However, this means almost by definition that many of the university and college students are below the national general population average for scholastic ability. The lower quartiles as a group certainly lack the scholastic ability of much smaller student populations a generation ago. Whatever these less able students are doing, it can't be the traditionally demanding intellectual study and inquiry demanded of top students the world over. They are perfectly capable of learning practical, very useful skills. What they are actually doing for the most part in South Korea is playing a face game. They will spend four years in this generational role, before graduating (almost all will graduate) into boring jobs, or in many cases, into unemployment. They will find marriage partners, and an alumni network to set them up for life. What most of them won't do is acquire either research skills or employment skills or significant knowledge. South Korean universities, on the whole, are organized to support the cultural face game. Academic pass levels are not set at 50%, but at 60%, 70% or higher; (this grade creep is a worldwide phenomenon). What do these percentages calibrate? There's the rub. They do not measure knowledge mastery or competence in any sense. They are norm referenced, and the referencing itself is not to any credible sample size. It is to each individual class, no matter how abysmal that class standard is. The writer has now taught in South Korea and China for almost ten years, in six institutions, and during that time has rarely been permitted to officially make honest assessments of student achievements relative to real competence or what was taught. Rather, there have been instructions that no student shall receive less than a C+, or even a B. Sometimes the instructions are conveyed in writing; more often there is a workplace process of enculturation where it is made clear that failing students poses a risk to the future of the teacher.

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This writer's experience has not been unique. It is the normal pattern. This situation is not confined to English classes. The underlying reasons are partly economic, and partly the face game again. South Korea now has one of the lowest birth rates in the world. It has gone through a demographic bulge, when there was a rapid expansion of educational institutions, both public and private. Now there is a demographic drought of students, which has just worked its way through to the tertiary sector. Many universities are facing imminent downsizing or closure. It has become common for professors to be faced with an ultimatum : 'recruit X number of freshmen students this year or lose your job' (Kim Nam-joong 2003). In this atmosphere, failing students is tantamount to resigning. There is considerable evidence that the professorial culture itself is tainted with corruption by appointment scams, although the majority of professors are probably there on merit :

Cutthroat competition for a professorship sometimes involves large sums of money changing hands. In the first eight months of last year, prosecutors penalized 61 professors and administrators, mostly for receiving bribes in exchange for granting tenure. In 2004, prosecutors punished 23 professors and officials on similar charges as well as misappropriation of funds. In one case last year, a university chancellor received $4 million from 42 candidates in exchange for appointing them as professors, prosecutors said. (Lim 2006) The pressure to maintain class numbers is not the only factor distorting participation in language classes. Elective or compulsory, many engineering, science, and technical students with little interest in English as a foreign language will continue to participate in language classes. Why? Well it is face again, plus employment insurance. The government has decreed that all university graduates should preferably master a foreign language before they graduate, and employers have the same idea. Indeed, they will all graduate with that language certification, supplied by teachers like the writer, and by Korean professors (who often have marginal English ability at best). Unfortunately, a large percentage of these certified graduates will have no practical ability in their second language. Reality is slowly intruding, even on this system. Japanese and Korean institutions of all kinds tend to mirror each other, sometimes with a time lapse (it is a kind of sibling rivalry, but also entanglement).

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Exploring the problem of unmotivated language learners in Japan, Soo Im Lee (2001? undated Stanford paper) notes a recent trend :

" many universities started to change English from a required subject to an elective subject in order to meet the diversified needs of future candidates. The reason behind this change is that there are large numbers of unmotivated learners of English who do not have any interest in continuing to study English at the university level".

An administrative switch from compulsory to elective status for foreign language enrolment does not necessarily encourage more enlightened teaching approaches. In a recent experience of this scenario, the writer found that a language faculty, fearful of losing its student quota not only wanted virtually guaranteed passes, but rated teachers on the "easiness" of class work. Easy class work that promotes learning is ideal, but '"easy" in the context of poorly motivated, low ability students can and often does mean an absence of challenge, such as a kind of mutual conspiracy to endure ritual grammar fill-in exercises that have little to do with language learning.

5. The Vocational Motivation of Academic Staff At tertiary level worldwide in foreign language teaching, there is a particular problem which derives from the actual vocational interests of people in language and literature departments. It is common for language study for acquisition (as opposed to analysis) to be considered a poor cousin of literature study.

In certain institutions, faculty members in departments of foreign languages and literatures have for years been treated as second-class citizens by colleagues in other disciplines who considered them to be teaching not content courses but skill courses. Thus, to reinforce our image as full-fledged faculty members, we have constantly emphasized the teaching of literature among our departmental activities.(Jean-Jacques Thomas 1998)

The language teaching is done reluctantly as drudge work to generate a population of students who can appreciate the achievements of great writers, or the intricacies of syntactic models (such places being comprised of literature specialists and linguistics

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specialists). It is felt that language learning and teaching is not an intellectually clever enough activity to justify its place in the academy. Inevitably this leads to painful practices of grammar-translation with unhappy outcomes for both language learning and literature appreciation. There can be bizarre distortions of process. My last Korean university accepted some international students from central Asia. They generally had a much higher level of English than their Korean contemporaries, but were shunted to general freshman language classes where their skills languished. My suggestion to allow them into courses for the English majors was opposed by a literature person who explained that all her lectures on English poetry were conducted in Korean, which the central Asians could only manage at a general conversational level.

6. Institutional Pressures for Favourable Language Learning Outcomes The face element (chemyeon in Korean) is also critical to institutions. The university must have a public front to say that its standards are high (hence the high "pass marks"). Korean professors mostly lecture a huge population of sub-average students as they would the most elite groups. They have performed their assigned role. Libraries in less ambitious institutions are often almost empty, either of students or of worthwhile resources. Students are busy catching up with their lost childhoods. At the same time, these students must not be confronted with the shame of losing face by failure. Each class will be assigned their set number of A+ students, no matter (in this writer's case as a language teacher) that few students can make even simple utterances in the language being learned. Classes of more able students will thus find themselves assessed equally with the very weakest. From the learning point of view, these public assessments do more damage than good anyway, but the administrative requirement for a set of numbers overrides any pedagogical consideration. In 2003-2004 I was hired to establish a postgraduate training program for Korean teachers of English. A South Korean university co-branded this TEFL Certificate firstly with one well-reputed American university (which withdrew), then a lesser known American university. It was deliberately designed to articulate into American Masters degree programs, and a number of prominent American universities initially agreed to grant cross-credits on the basis of the content covered. It was therefore essential to conduct the program to international standards, and this was loudly proclaimed by the local university as it charged very high fees. I did design an

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appropriate program. However, from the outset the two involved foreign professors were under official pressure to grant all students at least a B pass, regardless of performance. Eventually this directive was put in writing, so that even the student who scored 17% became eligible for Masters articulation. I carefully documented the full development of this sorry distortion of academic evaluation over a year, scanning all documents, and put the full story was online for two years. Public exposure is the only way to reform this kind of thing, but Korean legal pressure in the form of a charge of "criminal defamation" eventually forced its withdrawal from the Internet. Was this a case of isolated corruption? Unfortunately it was not. It was apparently not unusual, and fully expected by both Korean students (who were mostly appalled by the prospect of genuine evaluation) and Korean academics. Sadly, although anxious to participate in undermining the value of their own qualification, most of those graduates were just as natively talented as their counterparts in America or anywhere else. For that matter, Western universities have their own problems of dubious practices and plagiarism (e.g. Edwards 2006; Agence France Press 2006). The above is a severe criticism of the South Korean education system, and could perhaps be dismissed as defamatory prejudice if not supported by documentation. In 2003 a group of senior Korean academics working in the United States published an open letter in a national newspaper pleading for reform (Chang S.J. et. al. 2003). They make essentially the same points, and as Korean nationals their despair is all the more poignant. The inevitable washback effect of low standards is that Korean qualifications elicit little real respect, not least from Koreans themselves. Most South Korean universities have been extremely reluctant to hire academic staff who did not do their postgraduate work outside of Korea (Joong Ang Ilbo November 15, 2002). Although this paper has laid emphasis on particular problems of corruption and distortion in East Asia, the paradigm of mass education is under stress worldwide. For a devastating account of the Italian tertiary sector see Pacitti (1997). Almost universally, traditional patterns of collegiate organization, long term employment, time for research, and the small group tutoring of elite students has been buried under a mass production line model, run on managerial principles. In many countries now the academic workforce is at least 50% casualized, with highly educated people living from hand to mouth for years on the vague promise of some future permanence and status (Kamenetz 2004, Baranay 2006). Both full time and casual staff face a relentless revolving door of students without the resources of time to give them proper

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attention. Perhaps inevitably in such an environment, the obligation felt by staff towards students has diminished, and the respect for learning (as opposed to career promotion) felt by students has also diminished. Exploitation on one side has been matched on the other side by a preference for short cuts and a growth in cheating and plagiarism (Norrie 2005) which staff are less and less inclined to check : "... plagiarism, widely acknowledged as a growing problem, doesn't always get the attention it deserves: "I don't bother checking on it any more," says one. "It takes too much time and you never hear the result if you report it."

"Similarly, you soon find out that where students are fee-paying customers, giving someone a fail mark makes too much trouble for the university, for your overworked colleagues and for you..." (Baranay 2006, reporting on Australian universities).

The English language market is a boon to unscrupulous operators, and even highly reputed universities are continually pressured to lower the bar. In English speaking countries, the profits from accepting foreign students, including trainee language teachers, make it a multi-billion dollar industry. There is pressure to keep the customers happy by offering the greatest gain for the least pain. It doesn't help that educational standards in countries like South Korea and China are extensively corrupt, so that many students arrive overseas with an expectation of bending the system. One curious outcome of cultural relativism has been to argue sometimes that such practices are not really corrupt, merely on a different scale of values. Of course, value scales vary, but the victims of corruption - and they number multi millions - are in no doubt about the nature of the beast. For example, in China many able tertiary students are pushed aside by those with lower scores but better "connections" (e.g. May 2003).

7. Negative factors for English Language Teachers If there is one constant in successful classroom teaching it is the need for a positive outlook. This is exceptionally true of language teaching where the feel-good factor is one of the most potent predictors of success for most students. The people who get involved with this profession are, as a group, not predators driven by a need to exploit and dominate. Nor as a group are they obsessed by status, wealth or ambition. As a

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group they are fairly laid back people who like to help others reach their best potential. Perhaps it is this general lack of aggression which has tended to leave the profession worldwide so vulnerable, low paid, casualized and disrespected. The employment environment within which most language teachers operate is likely, even at its most benign, to be fraught with insecurity and the knowledge that any serious career path in the field is not an option. If new teachers don't know this when they enter, they soon learn it. (There are regional exceptions to this pattern. Parts of north western Europe in particular are known for high teaching standards and successful outcomes). There is also a large component of language teaching employment worldwide which is subject to outright employer fraud, sometimes with the connivance of national authorities. This underbelly of the profession does not, of course, feature strongly in official statistics and published documentation, but it forms a constant background environment for real language teaching on the ground. Inevitably it has an effect on language teaching outcomes. Fraud, illegality and exploitation by their nature are difficult to document and are apt to be dismissed as anecdotal. The most constant reference to difficulty with employers and dubious training authorities is to be found nowadays on the many TESOL internet discussion boards (for example, the iconic Dave Sperling's "Dave's ESL Cafe"), in Internet blacklists, and in personal blogs. One influential internet site which has made a business of documenting the illegal and dubious facets of the English language teaching business is the EFL Law site founded by Paul Robertson (now internationalized as part of the Time-Taylor Group).

8. Training choices As with the employment environment, the range of institutions offering to train people how to teach a foreign language (mostly English) ranges from staid sandstone universities to fast talking con-men with slick internet sites. There is no international standard in these matters, while governments vary wildly in their requirements (if they have any at all). The hopeful trainee is really purchasing two components : a) a right to use the brand name of the diploma granting institution in his CV, and b) an actual body of competent training. The two components in many cases may not come in the same package.

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For those with the self-discipline and organization for self-education, the Internet is a free resource of information that no university can match. Internet resources on English language teaching are staggering, and range from theoretical analysis to detailed lesson plans for every kind of student. The content and theory available online for other languages is much less, but also expanding. China for example claims that there are 20 million learners of Chinese, and is pitching to have 100 million foreign learners of standard Chinese by 2010 (Xinhua.net 2006). They are pouring resources into the field. In spite of this plethora of online resources, it remains true that most learners, including teacher trainees, are social learners, and not terribly selforganized. They want somebody to arrange a sequenced menu of study for them, and they want somebody to pose as an authority in a classroom (real or virtual) for the purpose of uttering accepted truths. Then they want to go through the motions of being judged for their supposed new expertise. Teacher employing authorities in my experience (32 years in the field in seven countries) mostly have little real interest in what a teaching applicant has studied or understood from that study. They are simply unable to evaluate this, and will often resent attempts to discuss the matter. This is a common experience for all kinds of teachers almost everywhere (e.g. see Ellen Delisio's interview of Frank McCourt, 2005). A recent systematic though understandably anonymous series of surveys in South Korea by a practicing teacher has found that increased qualifications actually reduce the chance of employment, and that the applicant most likely by far to be offered employment is a blonde haired, blue eyed, 22 year old white woman with minimal qualifications ("Korea Jim" 2007). As a first step, what the employer wants to see is a diploma or degree bearing a credible brand name consistent with the going market salary. In the case of private employers (the majority) this diploma/degree requirement has two functions: a) to satisfy legal requirements, and b) to advertise the quality of their own school. Having hired a teacher, their prime interest is that this teacher keeps the customers happy. That might or might not mean actually teaching language well. It depends upon expectations. The objective, for example, might be exam coaching, or it might be persuading the mothers of young children that their kids are doing what mothers think (in their innocence) kids should do in, say, an English class. If students are simply going through the motions of doing a language course because the system or parents require it, then their evaluations will favour the teacher who gives easy grades and

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makes few demands, rather than an innovative teacher who pushes them to excel. This last scenario is very, very common, and immensely discouraging for professional development and improved outcomes. The person who considers becoming a language teacher is thus faced with a complex cost-benefit equation. How long do they want to stay in the business? Where do they want to teach? What kind of salary will they settle for? If they approach this rationally, the overwhelming answer from an employment point of view is that a major investment of money or time is simply not worth it. It is therefore not surprising that as a group worldwide, the qualifications profile of language teachers is less than spectacular (there are many local exceptions to this). For an average aspirant, the trick is to get just enough documentation to stay legal and wrangle a job that they know is not going to last. There are of course other considerations. A regular university degree in TESOL might well be tradable in other markets when they settle down with a family in their own country. While they are in the EFL/ESL market it might give them an edge, even if the actual course was very poor (though note the 2007 "Korea Jim" survey above). If they want real knowledge later, there is always that vast, free resource of the internet. Of course, people entering into the language teaching market normally have very little knowledge of that market, either technically as teachers or economically as rational employees. Many of them are not analytic to begin with, and if they hope to teach their mother tongue in another country, a sizable proportion will naively consider themselves qualified by birth, and look forward to the job in the same spirit as fruit picking or being an au pair babysitter. The preceding paragraphs suggest that the professionalization of language teaching is likely to remain a piecemeal and regional phenomenon. Inevitably there is a price to pay for this in educational outcomes. Status does seem to have an effect in formal educational settings, perhaps because of the caliber of staff attracted. For example, Finland, which tops OECD achievement scores, does not spend excessively on educational resources. However,

" Barry Macgaw, the director for education at the OECD, said one trait that sets Finland apart from many other countries is the quality and social standing of its teachers. All teachers must have at least a master's degree, and while they are no better paid than teachers in other countries, the profession is highly respected" (Alvarez 2004)

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9. Paradoxes in the long term trajectory of language education outcomes With a tertiary education system which apparently entrenches a kind of fraud, why hasn't South Korea (and China and Japan) ground to a halt? Not only has the South Korean system not failed, but within fifty years it has leapt from being a backward rural economy with a per capita GDP of around $100 into becoming the world's 11th largest industrial power, and a world leader in technical innovation. As in any population, South Korea has its share of extremely talented people. Its history in the 20th Century was tragically turbulent, and its naturally hardy people have been energized to seek the kind of security that can only be achieved by being an advanced first world state (or at least that is how they see it). Up until very recently, the regimented secondary education race had enculturated a workforce ready for industrial discipline, while the slush of the local tertiary sector seems to have been bypassed by sending an elite (and wealthy) segment of young adults to overseas universities. Further, no matter how inept the system was and is, the student body did contain the normal quota of academically able individuals who did learn a good deal (though not as much as they might have). They graduated with ease. Everyone kept their face, and national pride was salved. This pattern is still widespread, but it would be a mistake to assume that it is static. In terms of foreign language education, it is also fair to say that South Korea is probably succeeding on a broad front. This is palpably true in middle class China also, but less so in Japan (Kensuka 2001). The reason for the broad success is simply the level of motivation. While it is true that many Koreans will bend the system to get required diplomas, the impetus for language learning itself stems from a deep and widespread sense of insecurity in a hostile world. Whether they like English or hate it, ordinary Koreans feel in their bones that personal and national prosperity turns on their ability to communicate with the outside world. The national education curriculum has been officially turned around to emphasize communicative ability rather than grammar translation, even if the bulk of current teachers feel unable to handle that (Butler 2003). There are clear generation differences in foreign language competence, with a small but significant elite of young people now able to operate productively in both Korean an English. As they feed through into the workforce, and become teachers, the standard of language education is likely to rise.

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The Japanese experience of foreign language education seems in some ways inexplicable in Western terms. Although there are plenty of Japanese who can speak perfectly good English, and vast personal resources are poured into the project, the overall outcomes are poor. To put this in context, Japanese, unlike members of Anglophone cultures, but very much like Koreans, understand a clear need for a sizeable cadre of good foreign language speakers. Japan lives or dies by its trade and its industry, both highly dependent upon the world's trading lingua franca, English. This need however comes up against some special characteristics of Japanese culture, and in particular the cultivated separation of role plays within each person's life that permeate the Japanese way. Japanese admit to an "English complex", a kind of permanent embarrassment at incapacity, and invest regularly in English classes. Yet the classes are frequently a form of escapism, not essentially about learning English, as Andy Courturier explains in a delightful essay, "Selling Indulgence in Corporate Japan".

10. Foreign Language Learning in Monolingual Anglo Cultures The dynamic for second language education in monolingual English speaking countries is quite different from the East Asian context just discussed. In these monolingual English communities, the most significant L2 teaching has been English for immigrants, a process of drawing foreign speakers into the monolingual mainstream. Its success has had far more to do with the motivation of those immigrants than brilliant teaching. Early immigrants in the nature of things lack political power. Almost universally, government funding for these programs has been fragmentary, reluctant and often poorly informed. In Australia (which I know most about) and elsewhere, the duration, difficulty and skills required for language acquisition remain beyond the comprehension of politicians and bureaucrats. They also remain a matter of indifference to the general public. The actual language programs have often been subsumed into labour market packages, designed to get unemployed workers "skilled" enough to find jobs. Functional literacy, which itself is a worldwide problem, though also low on the priority list of most governments, has been another pigeon hole in which to stuff ESL students when class places are available. The teaching workforce for these programs is overwhelmingly comprised of middle aged women who find it a convenient employment niche. Most do their job with considerable dedication, but their

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employment is generally part time or sessional, the salaries unattractive, and the opportunities for professional development negligible (Angwin 1992). We could say then that the trajectory of second language teaching in monolingual English speaking countries is transitional, and designed to reinforce the monolingual dominance. There are of course foreign language courses in schools, and periodical ritual statements that is important for the nation to have a talent pool of multilingual speakers. However, these are very minor counterforces to the dominant tendency. It is true that the rise of the nation state has correlated precisely with the decimation of the number of languages. However it is unlikely that the world is ready to become monolingual just yet. If multilingual language skills are a significant factor in national development and national security over the long term, then we could say that monolingual English countries are very vulnerable indeed. That of course is hard to see in the present environment of geopolitical balances, but it is not hard to see that the balance itself is extremely unstable. The third major stream for second language teaching in monolingual Anglo cultures has been the importation of non-English speaking students for both language and general education. This has grown into a multi-billion dollar industry, especially at the level of tertiary education. International students now comprise a significant minority in many Western universities, and their external status as full-fee paying customers has led to an increasing and disproportionate influence of commercial values on the educational process. Along with this commercialization have come many kinds of corruptive influence on curriculums, teaching practice, evaluation and the general probity of institutions themselves (e.g. Ford 2004). In other words, many of the same incentives that have influenced East Asian systems are finding international expression as mass language education systems globalize.

11. Sociopolitical Impacts on Teaching and Evaluation The sociopolitical factors just discussed feed directly into favoured approaches to both teaching and evaluation, although this nexus is little discussed. The ramifications are far too broad and complex to take up here, although my own doctoral dissertation deals with them in depth (May, University of Newcastle, NSW, forthcoming; see May 2006 for a website summary). We can note one passing example of sociopolitical influences on language teaching : the theory that all such teaching should be in the target language. This idea originated from late 19th and early 20th Century inquiries

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in Europe. It found ready acceptance in the Anglophone division of English teaching, and suited monolingual English teachers wonderfully. It is therefore no surprise that this theory still prevails in Anglophone training institutions. However, if we move to India a different discourse is evident : "The right pedagogical philosophy is that which believes in the possibility of osmosis of energy between the mother tongue and the second language. Most second language learners want and expect to operate as bilinguals, rather than monolinguals. It is the natural state of participation in the learning process. What is more, insistence on the monolingual approach to learning English as a second language leads to another insistence: the insistence on treating English as a permanently foreign language with its pristine foreignness remaining intact.." (M. Krishnamurthi 2005)

The issue of bilingual or monolingual usage in classrooms is easily confused with the related but distinct question of whether (often untrained) native speakers or teachers from the L2 trained in the target language are better able to assist students. Many nonlinguistic factors come into play in the second question. For quite different reasons, the teaching caliber of both kinds of teachers is often low. Decisions are especially difficult when it comes to deciding acceptable standards for teachers whose first language is not English (and such teachers constitute an increasing majority worldwide). In practice, the kinds of teachers available in a particular region, and the kinds of curriculums they are expected to follow are mostly determined by the agendas of administrators, politicians and broad public expectation. Real language learning criteria might be a fairly minor part of the mix, and to that extent language learning outcomes will be skewed.

12. Real Outcomes Although this paper has identified various distortions in international language teaching and evaluation, national language abilities may not always equate with the giant simulation game that is mass education. It is a curious fact that macro language learning outcomes for whole populations can often be better predicted by external environmental factors than the specific properties of particular programs, administrations, teachers and students. The preceding discussion seemed to leave little

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room for optimism, yet English and other languages continue to be learned to a useful level by large numbers of people. In the case of South Korea, the quality of language teaching has historically been poor. The processes of evaluation have often been corrupt. It has seemed for two generations that the effort put into English language learning was being dissipated with little tangible English language ability evident in the general community (and casual visitors can still have this impression). Yet the sheer imperative to learn English has been so great for the general population that it is possible to see over time the whole process of Korean-English bilingualism gaining a kind of critical social mass. Concomitant with this are major but still largely undocumented changes occurring in the Korean language itself, beginning with lexical diffusion, spreading to phonology, and even to syntactic patterns (e.g. Lee 2004. This is a topic for another analysis!). It seems then that the infusion of a foreign language into a speech community has its own long term logic, often obscured by immediate issues in language education, including corruption and individual failure. Each community of learners for English as a foreign language (for example) has reached a certain unique point in its accommodation with the intruding code. Thus, at the moment there is no sign of even Anglophone Koreans spontaneously speaking English with each other. In fact there are strong social prohibitions on doing so. In this sense then, Korea and China, let alone Japan, are in a different league, at least for now, from the Anglicization of whole population segments which can been seen in countries like Singapore, India and Nigeria. The Anglophone subcultures in these latter countries now have a selfpropagating life of their own. For Koreans the forces at work have been international power politics, recent memories of national disintegration, and the focused perception that multilingualism is a personal and national security shield. Korean governments have responded to these imperatives, just as Anglo governments continue to reflect the indifference and ignorance of their electors towards questions of multilingual education.

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References note on newspaper references : The nature of the "corruption and distortion" topic in language education has not lent itself to wide academic examination in the past in spite of its importance. This paper therefore makes fairly extensive use of newspaper quotations, especially East Asian English language news sources. The reliability of newspaper reportage can be fairly variable in individual instances, and should be treated with care. However, multiple reports taken over time and considered with an awareness of their political context can add up to a quite useful picture of social patterns and pressures. The material quoted on South Korean education is a good example of this. Agence France Press (2006) Mobiles fuel rise in cheating. Retrieved March 6, 2008 from http://smh.com.au/news/breaking/mobiles-fuel-rise-incheating/2006/03/28/1143441123577.html [in Britain], Sydney Morning Herald, March 28, 2006 Alvarez, Lizette (2004) Finnish schools go to the top of the class Retrieved March 6, 2008 from http://smh.com.au/articles/2004/04/09/1081326929377.html; Sydney Morning Herald, 10 April 2004 Angwin, Jennifer (1992) The changing workplace: the effect of change on teachers work in adult language and literacy programs Retrieved March 6, 2008 from http://www.aare.edu.au/92pap/angwj92105.txt . Association for Active Educational Researchers, 1992 AARE Conference Paper (unformatted web document); Deakin University Baranay, Inez (2006) Just a casual, but... Retrieved March 6, 2008 from http://www.theaustralian.news.com.au/common/story_page/0,5744,18072281^ 12332,00.html .. The Australian newspaper, 8 February 2006 Bauman, Richard (2006) On the Hagwon System in South Korea Retrieved March 6, 2008 from http://nathanbauman.com/seoulhero/nfblog/?p=119; Seoul Hero blog, February 25, 2006 Butler, Yuko Goto (2003) Korean elementary school teachers' concerns towards current English teaching practice: Competencies that they think they have and don't have Retrieved March 6, 2008 from http://www.hiceducation.org/Edu_Proceedings/Yuko Goto Butler.pdf;

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Graduate School of Education, University of Pennsylvania; Address: Hawaii International Conference on Education January 7 - 10, 2003 Card, James (2005) Life and death exams in South Korea Retrieved March 6, 2008 from http://www.atimes.com/atimes/Korea/GK30Dg01.html Asia Times, November 30 2005 Chang S.J. et al (2003) Scholars urge reform of education system Retrieved March 6, 2008 from http://joongangdaily.joins.com/200311/28/20031128010819460990009040904 1.html Joong Ang Ilbo 28 November 2003 - open letter Chung Ah-young (2005) Sixty-three Percent of Students Have Contemplated Suicide: Survey Retrieved March 6, 2008 from http://search.hankooki.com/times/times_view.php?term=suicide++&path=han kooki3/times/lpage/nation/200512/kt2005122919235911980.htm&media=kt; Korea Times, 29 December 2005 Courturier, Andy (undated) Selling Indulgence in Corporate Japan Retrieved March 6, 2008 from http://creativenonfiction.org/thejournal/articles/issue17/17Couturier.htm; Creative Non-fiction Magazine, Issue 17 Delisio, Ellen R. (2005) Author Frank McCourt Reflects on Teaching Career Retrieved March 6, 2008 from http://www.educationworld.com/a_issues/chat/chat163.shtml , Education World website Edwards, Hannah (2006) Essays to order: students warned Retrieved March 6, 2008 from http://www.smh.com.au/news/national/essays-to-order-studentswarned/2006/04/01/1143441378330.html Sydney Morning Herald, April 2, 2006 Ford, Liz (2004) Fraud proof Retrieved March 6, 2008 from http://education.guardian.co.uk/tefl/story/0,,1259425,00.html, The Guardian UK, Tuesday July 13, 2004 Joong Ang Ilbo (2002) Business, academia shun holders of local diplomas Retrieved March 6, 2008 from http://english.joins.com/Article.asp?aid=20021115024455&sid=300; Joong Ang Ilbo newspaper special report, November 15 2002

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Kamenetz, Anya (2004) Wanted: Really Smart Suckers Retrieved March 6, 2008 from http://www.villagevoice.com/issues/0417/kamenetz.php New York: The Village Voice newspaper KEDI (2002) Korean Educational Statistics Retrieved March 6, 2008 from http://std.kedi.re.kr/kedi/eng/2002/overview/2002overview_01.html; Korea Educational Development Institute KEDI (2006) Korea Educational Development Institute; Retrieved March 6, 2008 from http://eng.kedi.re.kr/ website Kensuka, Yoshida (2001) From Fish Bowl to the Open Seas: Taking a Step towards the Real World of Communications Retrieved March 6, 2008 from http://pweb.sophia.ac.jp/~yosida-k/Fishbowl.PDF; Sophia University, Japan Kim Cheng-won (2006) Students Outcast After Study Abroad Retrieved March 6, 2008 from http://times.hankooki.com/lpage/nation/200603/kt2006031017075411950.htm ; The Korea Times, 3 November, 2005 Kim Nam-joong (2003) Professors must meet a quota of students or hit the road Retrieved March 6, 2008 from http://joongangdaily.joins.com/200304/22/20030422024523173990009040904 1.html Joong Ang Ilbo April 22, 2003 Kim, Yoon-ah (2004) Early Overseas Education, an Escape from Reality? Retrieved March 6, 2008 from http://times.uos.ac.kr/detail.asp?p_ho=83&p_key=uostimes79univ2&p_sectio n=univ&p_idx=423 University of Seoul Times, Vol. XXI, No.83, June 2004 Korea Information Service (2001) Historical and Modern Religions of Korea Retrieved March 6, 2008 from http://www.askasia.org/teachers/essays/essay.php?no=121; Asia Society, AskAsia.org website Korea Jim (pseudonym; 2007) The State of Things: English as a Second Language in Korea, Korean-School blog Retrieved March 6, 2008 from http://koreanschool.blogspot.com/2007/06/state-of-things-english-as-second.html, June 6, 2007. Korea Times editorial (2005) The Business of Education in Korea Retrieved March 6, 2008 from

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http://times.hankooki.com/lpage/opinion/200510/kt2005100617500354130.ht m; The Korea Times, 10 July 2005 Krishnamurthi, M (2005) English in India's future Retrieved March 6, 2008 from http://www.india-seminar.com/2005/549/549 communication.htm, in Seminar Retrieved March 6, 2008 from http://www.india-seminar.com/ No.549, May 2005 - a monthly symposium, New Delhi Lee, In-Chul (2006) Native Speakers to Teach English Retrieved March 6, 2008 from http://english.donga.com/srv/service.php3?bicode=040000&biid=2006011203 608 Dong-a Ilbo 12 January 2006 Lee, Joseph J. (2004) The Impact of English on the Post-1945 South Korean Vernacular Retrieved March 6, 2008 from http://www3.telus.net/linguisticsissues/koreanvernacular.html, Karen's Linguistics Issues Retrieved March 6, 2008 from http://www3.telus.net/linguisticsissues/, March 2004 Lee, So-im (2001?) The Underlying Beliefs and Values of Japanese Learners of Low Language Proficiency Retrieved March 6, 2008 from http://www.stanford.edu/~kenro/SLA-RG/TESOL NEW - Lee.pdf; Ryokoku University through Stanford University web publication Lim, Bo-Mi (2006) South Korean system aided research fraud Retrieved March 6, 2008 from http://www.contracostatimes.com/mld/cctimes/news/nation/13578285.htm Contra-Costa Times.com for Associated Press, January 8 2006 May, Thor (2003) Letter from a Chinese Postgraduate Retrieved March 6, 2008 from http://thormay.net/chinadiary/chinesepostgrad.html; personal website May, Thor (2004) TESOL Program for a Postgraduate Certificate Articulating to Masters Retrieved March 6, 2008 from http://thormay.net/lxesl/tesol/index.htm; personal website; actual curriculum content for such a program May, Thor (2006) Summary: Language Tangle - Predicting and Facilitating Outcomes in Language Education Retrieved March 6, 2008 from http://thormay.net/lxesl/lxtangle_intro.html; chapter summary and conclusions from a doctoral dissertation, University of Newcastle, NSW (forthcoming)

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Nee, Seah Chiang (2001) Not By Rote But By Thinking Retrieved March 6, 2008 from http://www.singapore-window.org/sw01/011202st.htm The Star newspaper, Malaysia December 2, 2001 (pressure cooker education in Singapore) Norrie, Justin (2005) Stop it, school cheats - there's nowhere to hide Retrieved March 6, 2008 from http://www.smh.com.au/news/national/nowhere-tohide/2005/08/26/1124563033632.html; Sydney Morning Herald, 27 August 2005 Pacitti, Domenico (1997) Italian jobs in high places Retrieved March 6, 2008 from http://www.humnet.unipi.it/~pacitti/Archive19972.htm , The Guardian (London & Manchester) February 11 1997 Schleicher, Andreas (2003) Progress in education - Studying the signs Retrieved March 6, 2008 from http://www.oecdobserver.org/news/fullstory.php/aid/1126/Progress_in_educat ion.html; OECD Observer website Shen, Yuan (2005) The Secrets of China's Most Profitable Sectors Retrieved March 6, 2008 from http://hrichina.org/fs/view/downloadables/pdf/crf/CRF-20053_EWE_Secrets.pdf; Human Rights in China (HRIC) website Sperling, Dave (~2006) Dave's ESL Cafe Retrieved March 6, 2008 from http://eslcafe.com/; major website for the exchange of jobs and information in the ESL industry Thomas, Jean-Jacques (1998) Is There Still a Place for Linguistics in the Foreign Language and Literature Curriculum? Retrieved March 6, 2008 from http://www.adfl.org/adfl/bulletin/V30n1/301025.htm ADFL Bulletin 30, No.1, 1998 Time-Taylor Group (~2006) EFL Law Retrieved March 6, 2008 from http://www.efl-law.org/; an internet based legal organization which addresses all facets of law relating to the ESL industry Xinhua.net (2006) Mandarin is on the rise Retrieved March 6, 2008 from http://news.xinhuanet.com/english/2006-01/13/content_4048805.htm; China View, 13 January 2006

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Title TESOL Certificates. Teaching or Deceiving the EFL/ESL Teaching Profession

Author Tom Davidson Attorney Hong Kong

Abstract. The TESOL certificate industry has never had so many people, companies and on-line entities offering TESOL courses than is currently being seen. Many are run by persons who are deceiving the purchaser. A few are run by legitimate companies who are advancing the cause of the TESOL profession. No satisfactory regulation exists to stop the fraud being carried by those who make fast money from unsuspecting victims. It is unlikely that regulation will ever be enacted that will cover this fraud and deception, for the market is spread over the four corners of the globe and is often Internet based. Where the company has a licensed office, there is no form of authority to independently check that the operators or teachers are qualified to teach the TESOL course. The mooted introduction of the ITAA will radically change that anomaly and put many unscrupulous operators out of business.

Key words: TESOL Certificates, evaluating TESOL courses, false and misleading information, courses unfit for the purpose

Introduction Recently, the new President of South Korea, Lee Myung Bak, mentioned that teachers in his country should be TESOL qualified before they could teach English to Korean students. Within a month over 7 fraudulent operators had set up TESOL courses in South Korea. The worst example of the fraud was carried out by a Canadian company

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CIE, who ran a TESOL course in Pusan, where a Polish citizen passing as a native English speaker ran the course. A fictitious Dr. Cotton, who boasts a PhD from a university that des not exist, was coming to deliver to special lectures. Over 112 Koreans enrolled. One student, a PhD student from Columbia University said, "The course was poorly run, the teachers knew almost nothing about teaching English, were ill prepared, and the senior lecture was a cheat. I asked for my money back but they refused. I quit the course and lost a lot of money. I feel very bitter about the English language." TESOL courses in Korea can be set up by companies ­ yet fall outside the domain of the Education Act in Korea that requires English schools to be licensed by the Office of Education. A second course that had been running out of a foreign language university in Pusan claimed affiliation with 3 Universities in the USA who would grant credit for the course work done. None of the Universities in the USA were aware of this TESOL course. The course cost over U.S. $3,000. A graduate student noted that she learnt nothing from the two lecturers who were "...unqualified..." and her Certificate has not been accepted by any school to whom she applied. These are but a few examples of TESOL courses set up by unscrupulous persons cashing in on an unregulated industry. Over 26 TESOL courses counted in China also failed to show any evidence of registration from any licensing authority. May (2008) notes the basics problems in Korea, There are significant systemic problems in the Korean hagwon system, not least unqualified owner/managers and poor teaching, which may render it unstable over time (Bauman 2006), but at least currently these institutions are the major venue for language learning.

With poor controls in place to control the private `hogwan' industry, there is little likelihood there will be any controls to dampen the spread of fraudulent TESOL courses in Korea over the foreseeable future.

Internet TESOL Over 330 course were counted recently (2007)1. There are, in fact, so many Certificates to choose from, that any employer can simply not ever know if the Certificate comes from a credible source, or has been purchased for $40.00 over the

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Internet as is often the case. Many TESOL on-line courses are run by Russians operating out of Russia with elaborate web sites. The genuine courses, of which there are few, are hidden deeply amongst the vast field. It should be noted that there are a vast number of on-line universities who have no physical location apart from the web that offer Masters in TESOL for varying prices. The owners of these sites, (again one can trace such a false operation to CIE in Canada) hide themselves in complex sets of websites that are accredited by other (university) websites owned by the same person.

Attendance Courses. Attendance courses dot the globe. Reputable courses are to be found in the UK, Prague and Spain. Some universities run TESOL Certificate courses. These are above reproach and are expertly administered. Many TESOL courses are run in Thailand. When examining the legal structure of the companies running these courses, one can often find a non Thai (with Thai wife) running the company. One will also find the qualifications of the Director to not include any educational TESOL background. Some courses in Thailand have been accredited with attracting a large pedophile population who enter the teaching profession through these courses (see Sydney Morning Herald, May 2007.) An approach made to one course in Thailand via its online live service responded as such:-

Question: - Is your course accredited by any one? Operator. Yes, every country accepts it. Question. Who accepts it? Can you say? Operator. All the schools and education people. Question. It is not accepted in Hong Kong by the Ministry of manpower ­ so how can you say every country accepts your certificate. Operator: (no answer ­shuts down connection)

Re-connection Question. ... and are your teachers qualified to teach TESOL as it is very expensive? Operator. They are all highly qualified Question. what qualifications do they have? Operator. Masters and PhDs

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Question. Oh ­ yet read from a chap who did the course only one teacher was qualified and the rest were all there less than a year, some who had never taught English Operator (breaks Connection) Re-connection Question. Is this TESOL operation legal? Operator. Yes. Question. Can I talk to the Director and ask the companies tax code number Operator (breaks connection)

Authority to Accredit TESOL Courses It has become clear to academics across the Globe that action needs to be taken and taken urgently. But how can one police a global enterprise when cross jurisdictional problems arise. The answer is simply that there can not be any effective legal control not any effective legal protection granted to those who do or wish to do a TESOL certificate. The TESOL Code of ethics (Volume 1, TESOL Law Journal) was and is the clear starting place for an industry to start regulating itself. The Code of Ethics, while dormant for two years, has been gathering quite considerable attention. Dickey (2006) noted, A generation ago Sockett (1990, p. 243) argued that a code of ethics was "something to be hammered out as professionalism develops... as we discover what best practice is...". While we might have agreed with his argument then, time has passed and we seem no nearer a set of standards than we were then. Clearly it is time for an attempt to be made."

A large group of academics from over 60 countries have recently discussed measured to regulate the TESOL Certificate industry. This is, clearly, the first step in the application of the TESOL Code of ethics. During the coming year the Authority, with backing over 27 governments will be established. Clear standards will be applied. Those who offer a certificate will be asked by the Authority to submit to examination. Those that pass the 5 stage examination will receive the Authority Seal, whilst those who do not submit, or who fail the physical examination, will have their company placed on-line and a the Education authorities of over 78 countries will receive

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regular updates as to which certificate is approved, and which is denied. Clearly this move will meet with protests from the Certificates who should not be operating, while those who run course will receive the Authorities on-going assistance ad support. Conclusion. The following breaches of criminal law may be associated with some TESOL Certificates operators:a) false and misleading information b) deceiving consumers c) falsely listing affiliations and qualifications of staff, teachers and owners

Defenses are available ­ should anyone ever to try to sue the TESOL Company- that is highly unlikely in the case of Internet based courses, whilst the cost of the attendance course usually falls within the small claim and is not worth pursuing when the company can fall back on the time honored defence that the student was "..no good..." (ANC, Korea) The proposed authority note they will be established with legal authority, and clear guidelines (WASC). It is hoped the establishment of this authority will give the Code of Ethics for the TESOL profession the shot in the arm that is so importantly needs. Until the Authority is established, the advice for those seeking to do a TESOL Certificate would be: (a) do not do an on line course unless it is part of a full program (on and offline) (b) check if an independent Board supports the TESOL certificate (c) check if the course is run from an actual school or college with students who attend that school ­ that would indicate a high degree of safety (d) demand to know the qualifications of the teacher and proof of same (e) ask about the money back policy (f) if the course is in Thailand thoroughly check the companies bona fides and speak to students who have done the course and used the certificate to get gainful employment (in other countries such as Japan, Korea) (g) Only use companies who have 10 years or more history (h) Caveat Emptor

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Footnotes. 1. www.efl-law.com TESOL certificates.

Index Collingsworth, T.P. (1982). Applying Negligence Doctrine to the Teaching Profession, 11 J. Law & Education 479 Dickey, R. (2006). Assessing Ethical Standards for EFL Teaching Professionalism. TESOL Law Journal Vol.1. Retrieved January 2008. http://www.tesol-law.com/Vol_1_2006_rd.php Frank, T. (2003). Celebration Educational malpractice suit. Retrieved December 2005 from http://www.overlawyered.com/archives/000604.html Lockhart, S.L. (1995) Educational Malpractice: A Pathfinder. Legal Research Guides 23. New York: Hein TESOL Code of Ethics (2006) TESOL Volume 1. http://www.tesol-law.com/codeofethics.php

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