On January 7, the Office for Civil Rights and the Department of Justice issued joint guidance in the form of a Dear Colleague Letter to clarify the obligation of school districts to ensure equal access to education for English language learners.
Federal Law Requires Equal Access
Federal statistics indicate that English Learner (EL) students are enrolled in three out of four school districts and embody nine percent of all public school students. Districts and state educational agencies must, under Title VI of the Civil Rights Act, and the Equal Educational Opportunities Act, ensure that EL students can meaningfully participate in educational programs and services. This obligation extends beyond core curriculum to co-curricular and extracurricular activities. Although funding for such efforts is available under Title III of the Elementary and Secondary Education Act, school districts must implement appropriate programs regardless of the level of federal funding they receive.
Summary of Guidance
The Dear Colleague Letter summarizes school districts’ obligations to EL students and parents with limited English proficiency (LEP) as well as the manner in which compliance with legal mandates is evaluated. The letter summarizes 10 areas of concern: identification of EL students; providing appropriate language assistance programming; appropriate training and supports for staff; facilitating equal access to all programming including extracurricular programs; avoiding unnecessary segregation of EL students; compliance with special education child find obligations; meeting the needs of EL students who opt out of language assistance programs; monitoring progress toward language acquisition and mastery of core content; evaluating effectiveness of language acquisition programming; and ensuring meaningful communication with LEP parents.
Districts must promptly and accurately identify EL students and LEP parents. Home language surveys can be of great assistance in identifying parents as well as students who may have language needs. Assistance for LEP parents whose native language may not be common within the district may include a cover page describing how and where they may obtain additional assistance. Schools may use outside resources to meet parents’ needs, so long as the individuals providing translation or interpreting services have proper training. It is not appropriate to rely on family members to translate information or to rely on bilingual staff who have not received training about the role of an interpreter and translator, including the need for confidentiality.
Language acquisition programming must be based on educationally sound methods. Equally important is ongoing and accurate monitoring of student progress in English language acquisition and also progress on mastery of core content. Staff providing instruction must have adequate training and access to appropriate materials. Services from paraprofessionals, aides and tutors cannot take the place of instruction from a qualified teacher. Further, Districts may not limit the provision of services based on availability of staff. In addition, EL programming must be implemented so as to avoid segregation. It is unlikely, for example, that a legitimate program-related justification would require separating EL students for lunch or recess.
Demonstrable progress in the core curriculum is critical establish that EL students are not incurring irreparable academic deficits. This may require testing in the student’s primary language. In addition, districts must ensure that EL students are not categorically excluded from specialized and advanced coursework such as gifted programming.
Students must be exited from EL programming upon acquiring English language proficiency. However, exit decisions must be based on student performance and not on any pre-determined timeframe for participation in a language acquisition program. If a student is not making progress, the program should reviewed and revised as needed. Further, the possibility of disability-based needs must be considered. Where an evaluation is needed, consideration of the student’s language needs must be made in selecting assessment tools and interpreting results. If an EL student does have a disability, the language instruction program must meet the objectives of the IEP. It may be beneficial to include a staff person with training in second language acquisition as part of the IEP Team. It is not permissible to delay a special needs evaluation based on a student’s need for EL programming. The same principles apply to students who may require accommodations under a Section 504 plan.
Following exit from a language acquisition program, students must be monitored for a period of two years to ensure that they were not exited prematurely, and that academic deficits are promptly addressed.
Districts must ensure that EL students have access to co-curricular and extracurricular programs such pre-kindergarten, career and technical schools, counseling services, advance placement courses, gifted and talented programs, performing and visual arts, athletics, and clubs.
Parents have the right to decline all or part of the EL programming offered by a school district. Such a decision must be knowing and voluntary. Thus, school districts must ensure that parents are provided with guidance about the range of services and the benefits of the services in a language that the parents can understand. School districts must never counsel parents to reject particular EL programming. Documentation of the parent’s decision to opt out of services will be examined carefully in compliance monitoring reviews. Districts must still take affirmative steps to provide EL students whose parents have opted out of programming, with access to their education. Districts must monitor student progress and notify the parents if the student is not demonstrating growth in English proficiency. Districts should offer the parents additional opportunities to enroll in EL programs at any time.
Additional steps districts can take include training general education teachers on EL strategies. Further, each student’s English language proficiency should be assessed at least annually; opt-out EL students who achieve proficiency should be monitored for at least two years as other exited EL students are.
The Bottom Line
School districts must take affirmative steps to ensure that EL students can meaningfully participate in school programs. In addition, schools must ensure that LEP parents have access to information about school programs including language assistance programs, notices of all kinds, disciplinary procedures, permission forms, parent-teacher conferences, and information about programming options for students. Services and supports must be provided regardless of the availability of federal funding, and despite the possibility that scheduling and staffing changes may be necessary to implement these provisions. All staff working with EL students must receive appropriate training and have access to necessary materials to assist these students.
If you have any questions regarding this guidance, please contact your legal counsel or a member of the KingSpry Education Law Practice Group.
School Law Bullets are a publication of the KingSpry Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.
