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Legal Obligations to Serve English Language Learners
Virginia Department of EducationRoanoke, VAJuly 2015
LEIGH M. MANASEVIT, ESQ.
BRUSTEIN & MANASEVIT, PLLC
WWW.BRUMAN.COM
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Civil Rights and Program Requirements:Title VI of the Civil Rights Act, 1964Equal Educational Opportunities Act, 1974Lau v. Nichols, 1974Castañeda v. Pickard, 1981Title I, Title IIIAll states, most districts receive Title ITitle III applicable only ifDistrict receives
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Title VI as interpreted by Lau v. Nichols Prohibits national origin discrimination which protects Limited Proficiency in English
States / districts: affirmative steps to address language barriers
Enable ELL students to participate meaningfully in educational programs
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Equal Educational Opportunities Act (EEOA)States, Districts: action to overcome language barriers that impede participation
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CastañedaIs program:Sound?Reasonably calculated to implement theory?Success?(where applicable)
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A. Identify and Assess
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30 Day NoticeTitle I, IIIAll ELL parentsIdentification , placement and parental notice in ELL within 30 days of beginning of school yearAfter school year begins – 14 days
Understandable to LEP parent (practicable)
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Home Language SurveyBest practice – identifies students for ELP assessmentELP assessment – mandatory – 4 domainsSpeakListen (understand)ReadWrite
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Compliance Area QuestionsHow (if) are we identifying home language?If survey – is it adequate?What is our ELP assessment?Do we have timely services?Cover 4 domains?
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B. Providing Language Assistance
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Educationally sound Theory andPractice
Examples English language developmentStructured English immersionTransitional BilingualDual Language
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Compliance Area QuestionsAre Kindergarteners included?ELL services provided by appropriately trained teachers?ELL SWD’s included?Services continue until exit criteria met?
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C. Staffing
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HQTCore – Title IState ELL requirementsTraining with specific techniques usedAdequate number
Administrators qualified to assess HQT
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Compliance QuestionsCover all domains?Adequate resources?Qualified support staff?May not replace HQTs
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Compliance QuestionsAre services provided based On need – not resources?
Do teachers, support staff meetHQT, state requirements, familiarity with ELL techniques?
Adequate training to Gen Ed teachers
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D. Meaningful Access
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Acquire proficiency
ANDRecoup deficits in other areasReasonable time
Other programs and activities: PreK Magnet Career Tech Counseling AP & IB
Gifted / Talented Distance Performing & Visual Arts Athletics Clubs
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Compliance QuestionsHow is parity achievement in reasonable time determined?Is equal opportunity to participate measured for core but also extra curricular?Is equal opportunity measured for special programs?
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Compliance QuestionsAre opportunities to graduate on time and college and career prep provided?Does gifted and talented serve EL Students where proficiency not required?Are there entrance requirements for G & T that are language based?
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E. Avoid Unnecessary Segregation
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Using least segregative mannerConsistent with ELL program goalsEntry and Exit to program – voluntaryProficiency assessed annually
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Compliance QuestionsDoes monitoring review whether program unnecessarily segregates EL students?Is any separation the least amount necessary to achieve program goals?
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F. Special Education
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ELL SWDs fully IDEA and / or 504 eligibleIEP teams also consider language needsMust also consider language needs of parents at meetingsDistinguish language proficiency from disability
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Compliance QuestionsEvaluations in appropriate language?Measure skills not ELP?Improper delay due to ELL status or EL services?SPED & EL services provided where both are appropriate?Plans provide for language services?
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G. Opt Outs
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Must be knowing and voluntary: even where opt out – Civil Rights protections remainMust monitor progress –Must provide supports, if necessary, to acquire core curriculum
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Compliance QuestionsAre parents fully informed?Is there documentation that declines or opt outs are informed?Are reasons for high opt out rates explored?
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H. Monitoring and Exiting EL Students
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Annually measure EL students acquisition of core curriculumTestingMeasurement in 4 domains for exitSpeak, Read, Listen (understand), Write
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Valid and ReliableMonitor progress of exited studentsAt least 2 years
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Compliance QuestionsDo you monitor progress of opt outs and exited ELLs?Are there standards for ELP?Objective
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I. Evaluate Effectiveness of Program
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Results in overcoming barriers Modify programs that are not successfulNo unnecessary segregationLongitudinal data usedEL StudentsFormer ELNever ELL
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Compliance QuestionsAre EL and former EL students results compared to Never ELs?Are unsuccessful programs modified?
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J. Communication With LEP Parents
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Identify LEP parents – not dependent on child’s language proficiencyEnsure meaningful communicationSome topics as non LEP parentsLanguage assistance provided
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Compliance QuestionsProcedures to Identify evaluate and assist LEP parents?Is language assistance provided?What form?
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Resources1/7/15 Dear Colleague Letter https://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf Title III Toolkithttp://www2.ed.gov/about/offices/list/oela/english-learner-toolkit/index.html
Supplement not Supplant (SNS) Overview
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SUPPLEMENT NOT SUPPLANT PROVISIONS
Title I, Part A …to supplement the funds
that would, in the absence of such Federal funds, be made available from non-Federal sources for the education of pupils participating in programs assisted under this part, and not to supplant such funds.
ESEA §1120A(b)(1)
Title III, Part A …to supplement the level of
Federal, State, and local public funds that, in the absence of such availability, would have been expended for programs for Limited English Proficient (LEP) children and immigrant children and youth and in no case to supplant such Federal, State, and local public funds.
ESEA §3115(g)
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Presumption of “Supplanting”An auditor will presume that the SEA or LEA violated the SNS
requirement when the SEA or LEA uses Title III funds to provide…1. Services that the SEA or LEA was required to make available
under other federal, state, or local law;2. Services that the SEA or LEA provided with other federal, state,
or local funds in the prior year; or3. The same services to Title III students as it provided to non-
Title III students with non-Title III funds.
Source: See OMB Circular A-133 Compliance Supplement
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Affirmative Obligation to Serve ELLs
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Title VI’s General Prohibition Prohibits discrimination on the basis of race, color, or
national origin in programs and activities that receive federal financial assistance.
Title VI Interpretation – ELLs:Prohibits denial of equal access to education because
of a student's limited proficiency in English. Protects students who are so limited in their English
language skills that they are unable to participate in or benefit from regular or special education instructional programs. 45
OCR 1970 Memorandum: Identification of Discrimination and Denial of Services on the Basis of National Origin
“Where the inability to speak and understand the English language excludes national origin minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.”
Upheld in Lau v. Nichols"[T]here is no equality of treatment merely by
providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education."
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Title VI Requirements for ELLs“Core Language Program”
Federal law requires programs that educate children with LEP to be:
1. Based on a sound educational theory;
2. Adequately supported, with adequate and effective staff and resources, so that the program has a realistic chance of success; and
3. Periodically evaluated and, if necessary, revised.
(Castaneda v. Pickard 3-part test)
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Other Potential Title III SNS Pitfalls – Obligations to Serve ELLs
ESEA Title I
State Requirements
Local Requirements
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Title VI RequirementsLanguage Access
May arise in many contextsRecent OCR Agreements re: Parental Communications:Tulsa Public Schools (OK), 1/22/13 DeKalb Co. School District (GA), 6/27/13
Discipline-relatedDOJ settlement agreement with Philadelphia School District requiring provision of interpretation services and translation of documents in specific circumstances
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Title VI, Civil Rights Act of 1964Resources
Key Federal Court Cases:Lau v. Nichols, 414 U.S. 563 (1974)Castaneda v. Pickard, 648 F.2d 989 (5th Cir., 1981)
Key OCR Guidance:5/25/70 Memorandum
http://www.ed.gov/about/offices/list/ocr/docs/lau1970.html 12/3/85 Memorandum (Reissued 4/6/90)
http://www.ed.gov/about/offices/list/ocr/docs/lau1990_and_1985.html 9/27/91 OCR Policy
http://www.ed.gov/about/offices/list/ocr/docs/lau1991.html 2/17/11 DOJ Memorandum
http://www.justice.gov/crt/lep/AG_021711_EO_13166_Memo_to_Agencies_with_Supplement.pdf
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Title III, Part A Supplement Not Supplant
GuidanceFindings
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Title III SNS Provision, §3115(g)Federal funds made available under this subpart shall be
used so as to supplement the level of Federal, State, and local public funds that, in the absence of such availability, would have been expended for programs for LEP children and immigrant children and youth and in no case to supplant such Federal, State, and local public funds.
INTENT: To ensure services provided with Tier III funds are in addition to, and do not replace or supplant, services that students would otherwise receive.
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USDE Supplanting Interpretation Title III funds unallowable for:Developing and/or administering Title I ELP assessment
NOTE: State may use Title III State Activities funds for:Developing an ELP assessment separate from ELP assessment required under
Title I, orEnhancing an existing ELP assessment required under Title I in order to align it
with the State’s ELP standards under Title IIIDeveloping and/or administering screening or placement
assessmentsProviding “core language instruction educational programs
and services” for LEP students
Any determination about supplanting is VERY fact specific. 53
Title III SNS Practical Applications:
ELP ASSESSMENT DEVELOPMENT & ADMINISTRATION
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Use of ESEA Funds to Develop State ELP Assessments
An SEA may use the following funds:
Title I State Administrative fundsRegardless of consolidation w/other ESEA State admin
Title III State Administrative funds if consolidated with other ESEA admin
Section 6111 fundsSection 6112 funds
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Use of ESEA Funds to Administer State ELP Assessments
Title I and Title III funds may not be used to administer ELP assessments.
An SEA may use Section 6111 funds to administer State ELP assessments.
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Questions to Ask Re: Whether Title III Funds Can be Used Without Violating
the SNS Requirement
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From USDE Title III SNS Webinar:1. What is the instructional program/service provided
to all students? 2. What does the LEA do to meet Lau requirements?3. What services is the LEA required by other Federal,
State, and local laws or regulations to provide?4. Was the program/service previously provided with
State, local, and Federal funds?Based on the answers to the above questions, would the proposed funds be used to provide an instructional program/service that is in addition to or supplemental to an instructional program/service that would otherwise be provided to LEP students in the absence of a Title III grant?
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SASA Monitoring Findings: Title III SNS
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SNS Violations – Assessment Findings Initial assessment to identify and place LEP students
(including screeners, LAS links) Salaries of personnel who perform duties associated with
administration of the annual ELP assessment Teacher substitutes to enable ESL teachers to administer
the State’s annual ELP assessment ESL Instructional Coach / Tutor whose responsibilities
included assistance in administering the State ELP assessment
Staff, related costs, for training on administering the proficiency assessments
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SNS Violations – State Mandate Findings
District positions required under State law State required training Costs related to students attending State mandated
Structured English Immersion (SEI) classesChairs for State mandated SEI classesClasses required for graduation for ELL students
unable to take these courses due to the requirement to enroll in State mandated SEI classes
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SNS Violations – State Mandate Findings (cont.)
State mandated analysis of an ELL pilot program Translations otherwise required Where State required summer program for group of
students, Title III funds used for summer program dedicated for such LEP students
SEA ‘match’ requirement triggered supplanting issue
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SNS Violations – Other General Findings
To provide core language instruction Salaries of teachers (and others) who provide core services for LEP students Books not documented as supplemental expenditures
Positions not Supplemental Secondary ESL teachers who have the same duties and responsibilities – some paid with non-
Fed funds, Title III Fed. Funded Title III State Dir. also manages state’s bilingual ed. program
Activities specified in a Title VI corrective action plan approved by OCR Report required LEA to explain how activity was supplemental
Would LEA have to provide those services in the absence of Title III funds? How would activities paid for with Title III funds go beyond Lau’s equal access obligation?
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ED Guidance on Title III SNSTitle III SNS Guidance, Oct. 2008 http://
www.thompson.com/images/thompson/nclb/titleiii/title-iii-sns-oct-2-2008.pdf
USDE Title III SNS Webinar, Dec. 2008 http://www.ncela.us/webinars/event/6/ Follow-up to questions raised at the LEP Partnership Meeting
SASA Monitoring Findings 2009-2010: http://www2.ed.gov/admins/lead/account/monitoring/reports10/index.html 2010-2011: http://www2.ed.gov/admins/lead/account/monitoring/reports11/index.html 2011-2012 : http://www2.ed.gov/admins/lead/account/monitoring/reports12/index.html 2012-2013: http://www2.ed.gov/admins/lead/account/monitoring/reports13/index.html 2013-2014: http://www2.ed.gov/admins/lead/account/monitoring/reports14/index.html
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Questions?
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