1. Serving English Language Learners with ESEA Title III, Part A Funds Jennifer S. Mauskapf, Esq. jmauskapf@bruman.com Brustein & Manasevit, PLLC Spring Forum 2014

2. AGENDA Supplement not Supplant Overview Affirmative Obligations to Serve ELLs – Other Federal Requirements Title VI of the Civil Rights Act of 1964 ESEA Title I – State Mandates – Local Requirements ESEA Title III Use of Funds – Allocations – SEA/LEA Activities – ‘Easier-to-Fix’ Findings SNS Title III Guidance and Findings BRUSTEIN & MANASEVIT, PLLC

3. SUPPLEMENT NOT SUPPLANT (SNS) OVERVIEW BRUSTEIN & MANASEVIT, PLLC

4. 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) BRUSTEIN & MANASEVIT, PLLC

5. 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; or 3.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 BRUSTEIN & MANASEVIT, PLLC

6. AFFIRMATIVE OBLIGATION TO SERVE ELLS BRUSTEIN & MANASEVIT, PLLC

7. 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. BRUSTEIN & MANASEVIT, PLLC

8. 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." BRUSTEIN & MANASEVIT, PLLC

9. 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) BRUSTEIN & MANASEVIT, PLLC

10. Other Potential Title III SNS Pitfalls – Obligations to Serve ELLs ESEA Title I State Requirements Local Requirements BRUSTEIN & MANASEVIT, PLLC

11. Title VI Requirements Language Access May arise in many contexts Recent OCR Agreements re: Parental Communications: – Tulsa Public Schools (OK), 1/22/13 – DeKalb Co. School District (GA), 6/27/13 Discipline-related – DOJ settlement agreement with Philadelphia School District requiring provision of interpretation services and translation of documents in specific circumstances BRUSTEIN & MANASEVIT, PLLC

12. Title VI, Civil Rights Act of 1964 Resources  Key Federal Court Cases:  Lau v. Nichols, 414 U.S. 563 (1974)  Castaneda v. Pickard, 648 F.2d 989 (5 th 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_Agencie s_with_Supplement.pdf BRUSTEIN & MANASEVIT, PLLC

13. USE OF TITLE III, PART A FUNDS BRUSTEIN & MANASEVIT, PLLC Purpose Allocations Activities SNS Guidance

14. 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 BRUSTEIN & MANASEVIT, PLLC

15. 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; and 4.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; or 3.Opportunity to participate fully in society. BRUSTEIN & MANASEVIT, PLLC

16. Allocation of Title III Funds SEA Grant Award At least 95% used to issue subgrants Formula LEP Subgrants Immigrant Program Subgrants (no more than 15% of State allotment) Up to 5% for State-level Use SEA Admin (Stat. Cap) State Level Activities BRUSTEIN & MANASEVIT, PLLC

17. SEA Authorized Activities, §3111(a)(2) Professional Development Planning, evaluation, administration, interagency coordination Technical Assistance Recognition BRUSTEIN & MANASEVIT, PLLC

18. Immigrant Children and Youth “Shall reserve no more than 15%” of SEA allotment to serve ‘eligible entities’ that have ‘significant increase’ in immigrant children compared to the average of the 2 preceding FYs. Immigrant Children and Youth (ICY) defined: – Ages 3-21; – Not born in any State (including DC and PR); and, – Have not been attending school(s) in any State(s) for more than 3 full academic years Sec. 3115(e). Activities by Agencies Experiencing Substantial Increases in ICY – Funds received under 3114(d) shall be used for activities that provide ‘enhanced instructional opportunities for immigrant children and youth’ – Lists specific permissive activities BRUSTEIN & MANASEVIT, PLLC

19. Immigrant Children and Youth (ICY) Statutory Examples of Permissive Activities, § 3115(e)(1) Family literacy, parent outreach, and training activities designed to assist parents to become active participants in the education of their children; Provision of tutorials, mentoring, and academic or career counseling for ICY; Other instruction services that are designed to assist ICY to achieve in elementary and secondary schools in the US, such as programs of introduction to the educational system and civics education; and Activities, coordinated with community-based organizations, institutions of higher education, private sector entities, or other entities with expertise in working with immigrants to assist parents of ICY by offering comprehensive community services. BRUSTEIN & MANASEVIT, PLLC

20. Distribution of Title III Funds at LEA-level Formula LEP Subgrants LEA Admin Off the top Up to 2% §3115(b) Equitable Services Required LEA Activities Permissive LEA Activities BRUSTEIN & MANASEVIT, PLLC

21. 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 BRUSTEIN & MANASEVIT, PLLC

22. 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 BRUSTEIN & MANASEVIT, PLLC

23. Eligibility for Services 1.Enrolled in nonprofit private school located in LEA 2.Meet specific eligibility/participation criteria of given program Note:  Residence is NOT a factor.  If State law considers home schooled students to be private school students, they are eligible. BRUSTEIN & MANASEVIT, PLLC

24. LEA-Required Activities §3115(c)  High quality language instruction educational programs that demonstrate effectiveness by:  Increasing English proficiency  Student academic achievement in the core academic subjects  High-quality professional development  Improve instruction and assessment  Enhance the ability of teachers to understand and use curricula, assessment measures, and instruction strategies  Demonstrate effectiveness of professional development  Provide activities of sufficient intensity and duration BRUSTEIN & MANASEVIT, PLLC

25. 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. BRUSTEIN & MANASEVIT, PLLC

26. 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; and  To assist parents in helping their children improve their academic achievement and becoming active participants in the education of their children. BRUSTEIN & MANASEVIT, PLLC

27. 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. BRUSTEIN & MANASEVIT, PLLC

28. ‘EASIER-TO-FIX’ FINDINGS Instructional Support Fiduciary Accountability BRUSTEIN & MANASEVIT, PLLC

29. Instructional Support Equitable Services – Timely and Meaningful Consultation – LEA maintains control and oversight of program – Process for identifying eligible private school children – Imposing administratively burdensome requirements not authorized by law Compliant Parental Rights Notification Compliant AMAO-Failure Notification BRUSTEIN & MANASEVIT, PLLC

30. Fiduciary LEA administrative costs cap LEA tech. purchases “necessary and reasonable” LEA MOE oversight BRUSTEIN & MANASEVIT, PLLC

31. Common Accountability Findings Ensuring all LEP students are assessed Required 2-year and 4-year Improvement Plans Timely and Compliant Notifications Required – Parental Rights Notification – Notification of AMAO determinations BRUSTEIN & MANASEVIT, PLLC

32. TITLE III, PART A SUPPLEMENT NOT SUPPLANT  Guidance  Findings BRUSTEIN & MANASEVIT, PLLC

33. 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. BRUSTEIN & MANASEVIT, PLLC

34. 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, 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. BRUSTEIN & MANASEVIT, PLLC

35. TITLE III SNS PRACTICAL APPLICATIONS: ELP Assessment Development & Administration BRUSTEIN & MANASEVIT, PLLC

36. Use of ESEA Funds to Develop State ELP Assessments An SEA may use the following funds: – Title I State Administrative funds Regardless of consolidation w/other ESEA State admin – Title III State Administrative funds if consolidated with other ESEA admin – Section 6111 funds – Section 6112 funds BRUSTEIN & MANASEVIT, PLLC

37. 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. BRUSTEIN & MANASEVIT, PLLC

38. QUESTIONS TO ASK RE: WHETHER TITLE III FUNDS CAN BE USED WITHOUT VIOLATING THE SNS REQUIREMENT BRUSTEIN & MANASEVIT, PLLC

39. 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? BRUSTEIN & MANASEVIT, PLLC

40. SASA MONITORING FINDINGS: TITLE III SNS BRUSTEIN & MANASEVIT, PLLC

41. 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 BRUSTEIN & MANASEVIT, PLLC

42. 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) classes  Chairs for State mandated SEI classes  Classes required for graduation for ELL students unable to take these courses due to the requirement to enroll in State mandated SEI classes BRUSTEIN & MANASEVIT, PLLC

43. 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 BRUSTEIN & MANASEVIT, PLLC

44. 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? BRUSTEIN & MANASEVIT, PLLC

45. RESOURCES  2011-2012 SASA Monitoring Protocol http://www2.ed.gov/admins/lead/account/monitoring/indicators1112.pdf 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 Resources http://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 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 http://www.ncela.us BRUSTEIN & MANASEVIT, PLLC

46. ED Guidance on Title III SNS USDE Title III SNS Webinar, Dec. 2008 http://www.ncela.us/webinars/event/6/ 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 http://www2.ed.gov/admins/lead/account/monitoring/reports09/index.html 2009-2010: http://www2.ed.gov/admins/lead/account/monitoring/reports10/index.html http://www2.ed.gov/admins/lead/account/monitoring/reports10/index.html 2010-2011: http://www2.ed.gov/admins/lead/account/monitoring/reports11/index.html http://www2.ed.gov/admins/lead/account/monitoring/reports11/index.html 2011-2012 : http://www2.ed.gov/admins/lead/account/monitoring/reports12/index.html http://www2.ed.gov/admins/lead/account/monitoring/reports12/index.html 2012-2013: http://www2.ed.gov/admins/lead/account/monitoring/reports13/index.html http://www2.ed.gov/admins/lead/account/monitoring/reports13/index.html BRUSTEIN & MANASEVIT, PLLC

47. Questions? BRUSTEIN & MANASEVIT, PLLC

48. This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances. BRUSTEIN & MANASEVIT, PLLC