1. Legal Obligations to Serve English Language Learners Virginia Department of Education Roanoke, VA July 2015 LEIGH M. MANASEVIT, ESQ. LMANASEVIT@BRUMAN.COM BRUSTEIN & MANASEVIT, PLLC WWW.BRUMAN.COM 1

2. Civil Rights and Program Requirements:  Title VI of the Civil Rights Act, 1964  Equal Educational Opportunities Act, 1974  Lau v. Nichols, 1974  Castañeda v. Pickard, 1981  Title I, Title III  All states, most districts receive Title I  Title III applicable only if  District receives 2

3.  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 3

4. Equal Educational Opportunities Act (EEOA)  States, Districts: action to overcome language barriers that impede participation 4

5. Castañeda  Is program:  Sound?  Reasonably calculated to implement theory?  Success? (where applicable) 5

6. A. Identify and Assess 6

7. 30 Day Notice  Title I, III  All ELL parents  Identification, placement and parental notice in ELL within 30 days of beginning of school year  After school year begins – 14 days  Understandable to LEP parent (practicable) 7

8. Home Language Survey  Best practice – identifies students for ELP assessment  ELP assessment – mandatory – 4 domains  Speak  Listen (understand)  Read  Write 8

9. Compliance Area Questions  How (if) are we identifying home language?  If survey – is it adequate?  What is our ELP assessment?  Do we have timely services?  Cover 4 domains? 9

10. B. Providing Language Assistance 10

11. 11  Educationally sound  Theory and  Practice  Examples  English language development  Structured English immersion  Transitional Bilingual  Dual Language

12. Compliance Area Questions  Are Kindergarteners included?  ELL services provided by appropriately trained teachers?  ELL SWD’s included?  Services continue until exit criteria met? 12

13. C. Staffing 13

14. 14  HQT  Core – Title I  State ELL requirements  Training with specific techniques used  Adequate number  Administrators qualified to assess HQT

15. Compliance Questions  Cover all domains?  Adequate resources?  Qualified support staff?  May not replace HQTs 15

16. Compliance Questions  Are services provided based  On need – not resources?  Do teachers, support staff meet  HQT, state requirements, familiarity with ELL techniques?  Adequate training to Gen Ed teachers 16

17. D. Meaningful Access 17

18. 18  Acquire proficiency AND  Recoup deficits in other areas  Reasonable time  Other programs and activities:  PreK  Magnet  Career Tech  Counseling  AP & IB  Gifted / Talented  Distance  Performing & Visual Arts  Athletics  Clubs

19. Compliance Questions  How 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? 19

20. Compliance Questions  Are 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? 20

21. E. Avoid Unnecessary Segregation 21

22. 22  Using least segregative manner  Consistent with ELL program goals  Entry and Exit to program – voluntary  Proficiency assessed annually

23. Compliance Questions  Does monitoring review whether program unnecessarily segregates EL students?  Is any separation the least amount necessary to achieve program goals? 23

24. F. Special Education 24

25. 25  ELL SWDs fully IDEA and / or 504 eligible  IEP teams also consider language needs  Must also consider language needs of parents at meetings  Distinguish language proficiency from disability

26. Compliance Questions  Evaluations 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? 26

27. G. Opt Outs 27

28. 28  Must be knowing and voluntary: even where opt out – Civil Rights protections remain  Must monitor progress –  Must provide supports, if necessary, to acquire core curriculum

29. Compliance Questions  Are parents fully informed?  Is there documentation that declines or opt outs are informed?  Are reasons for high opt out rates explored? 29

30. H. Monitoring and Exiting EL Students 30

31. 31  Annually measure EL students acquisition of core curriculum  Testing  Measurement in 4 domains for exit  Speak, Read, Listen (understand), Write

32.  Valid and Reliable  Monitor progress of exited students  At least 2 years 32

33. Compliance Questions  Do you monitor progress of opt outs and exited ELLs?  Are there standards for ELP?  Objective 33

34. I. Evaluate Effectiveness of Program 34

35. 35  Results in overcoming barriers  Modify programs that are not successful  No unnecessary segregation  Longitudinal data used  EL Students  Former EL  Never ELL

36. Compliance Questions  Are EL and former EL students results compared to Never ELs?  Are unsuccessful programs modified? 36

37. J. Communication With LEP Parents 37

38. 38  Identify LEP parents – not dependent on child’s language proficiency  Ensure meaningful communication  Some topics as non LEP parents  Language assistance provided

39. Compliance Questions  Procedures to Identify evaluate and assist LEP parents?  Is language assistance provided?  What form? 39

40. Resources  1/7/15 Dear Colleague Letter https://www2.ed.gov/about/offices/list/ocr/letters/colleag ue-el-201501.pdf https://www2.ed.gov/about/offices/list/ocr/letters/colleag ue-el-201501.pdf  Title III Toolkit http://www2.ed.gov/about/offices/list/oela/english-learner- toolkit/index.html 40

41. Supplement not Supplant (SNS) Overview 41

42. 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) 42

43. 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 43

44. Affirmative Obligation to Serve ELLs 44

45. 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

46. 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." 46

47. 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) 47

48. Other Potential Title III SNS Pitfalls – Obligations to Serve ELLs  ESEA Title I  State Requirements  Local Requirements 48

49. 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 49

50. 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_Agencies _with_Supplement.pdf 50

51. Title III, Part A Supplement Not Supplant  Guidance  Findings 51

52. 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. 52

53. 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. 53

54. Title III SNS Practical Applications: ELP ASSESSMENT DEVELOPMENT & ADMINISTRATION 54

55. 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 55

56. 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. 56

57. Questions to Ask Re: Whether Title III Funds Can be Used Without Violating the SNS Requirement 57

58. 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? 58

59. SASA Monitoring Findings: Title III SNS 59

60. 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 60

61. 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 61

62. 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 62

63. 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? 63

64. ED Guidance on Title III SNS Title III SNS Guidance, Oct. 2008 http://www.thompson.com/images/thompson/nclb/titleiii/title-iii-sns-oct-2-2008.pdf 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/ 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 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 2013-2014: http://www2.ed.gov/admins/lead/account/monitoring/reports14/index.html http://www2.ed.gov/admins/lead/account/monitoring/reports14/index.html 64

65. Questions? 65

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