Serving English Language Learners with ESEA Title III, Part A Funds

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

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

USE OF TITLE III, PART A FUNDS

• Purpose• Allocations• Activities• SNS Guidance

Purposes of Title III (§ 3101)

• To ensure that Limited English Proficient (LEP) and immigrant students:– Attain English proficiency– Develop high levels of academic attainment in

English– Meet the same challenging State academic

content and student achievement standards as all students

Definition: Limited Eng. Proficient (LEP) (§ 9101)

1. Age 3-21;2. Enrolled/preparing to enroll in elementary or

secondary school;3. Not born in US or whose native language is not

English; and4. Has difficulty in speaking, reading, writing or

understanding English sufficiently so that it can deny student the:

1. Ability to meet proficient level on state assessments,2. Ability to achieve in classroom where language of instruction is English;

or3. Opportunity to participate fully in society.

Title III Equitable Services

After timely and meaningful consultation with appropriate private school officials, LEAs receiving Title III funds must provide educational services to LEP children and educational personnel in private schools that are located in the geographic area served by the LEA.

(§ 9501)Title IX Equitable Services Guidance (March 2009):

www2.ed.gov/policy/elsec/guid/equitableserguidance.doc

Title III & LEP Students in Private Schools

• To ensure timely and meaningful consultation, the LEA must consult with private school officials on issues such as:– How LEP students’ needs will be identified– What services will be offered– How, where, and by whom the services will be provided– How the services will be assessed and how the results of the

assessment will be used to improve those services– The size and scope of services– Amount of funds available for services– How and when the LEA will make decisions about the delivery of

services

LEA-Required Activities§3115(c)

High quality language instruction educational programs that demonstrate effectiveness by:

Increasing English proficiencyStudent academic achievement in the core academic

subjects High-quality professional development Improve instruction and assessmentEnhance the ability of teachers to understand and use

curricula, assessment measures, and instruction strategiesDemonstrate effectiveness of professional developmentProvide activities of sufficient intensity and duration

LEA-Permissive Activities§3115(d)

To achieve Title III purposes by…1.Upgrading program objectives and effective

instruction strategies;

2.Improving the instruction program for LEP children by identifying, acquiring, and upgrading curricula, instruction materials, educational software, and assessment procedures;

3.Providing—Tutorials and academic or vocational education for LEP

children; and Intensified instruction.

LEA-Permissive Activities (cont.)§3115(d)

4. Developing and implementing elementary school or secondary school language instruction education programs that are coordinated with other relevant programs and services;

5. Improving the English proficiency and academic achievement of LEP children;

6. Providing community participation programs, family literary services, and parent outreach and training activities to LEP children and their families—

To improve English language skills of LEP children; andTo assist parents in helping their children improve their

academic achievement and becoming active participants in the education of their children.

LEA-Permissive Activities (cont.)§3115(d)

7. Improving the instruction of LEP children by providing for— The acquisition or development of educational

technology or instructional materials; Access to, and participation in, electronic networks for

materials, training, and communication; and Incorporation of the resources described above into

curricula and programs, such as those funded under Title III-Part A.

8. Carrying other activities that are consistent with the purposes of this section.

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.

USDE Supplanting Interpretation Title III funds unallowable for:

Developing and/or administering Title I ELP assessmentNOTE: State may use Title III State Activities funds for:

Developing an ELP assessment separate from ELP assessment required under Title I, or

Enhancing an existing ELP assessment required under Title I in order to align it with the State’s ELP standards under Title III.

Developing and/or administering screening or placement assessments

Providing “core language instruction educational programs and services” for LEP students

Any determination about supplanting is VERY fact specific.

QUESTIONS TO ASK RE: WHETHER TITLE III FUNDS CAN BE USED WITHOUT

VIOLATING THE SNS REQUIREMENT

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?

RESOURCES 2011-2012 SASA Monitoring Protocol

http://www2.ed.gov/admins/lead/account/monitoring/indicators1112.pdf

Final Interpretations http://edocket.access.gpo.gov/2008/pdf/E8-24702.pdf

Office of Civil Rights ELL Resourceshttp://www.ed.gov/about/offices/list/ocr/ellresources.html

Office of English Language Acquisition (OELA) http://www.ed.gov/about/offices/list/oela/index.html

National Clearinghouse for English Language Acquisition and Language Instruction Educational Programs http://www.ncela.us

ED Guidance on Title III SNSUSDE 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 2008-2009:

http://www2.ed.gov/admins/lead/account/monitoring/reports09/index.html 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