1. ELL Program Models and the “Dear Colleague” letter
David Irwin
Language Development Opportunities

2. Lau v. Nichols 1974
Lau v. Nichols, 414 U.S. 563 (1974), was a civil rights case that was brought by Chinese American students living in San Francisco, California who had limited English proficiency. The students claimed that they were not receiving special help in school due to their inability to speak English, which they argued they were entitled to under Title VI of the Civil Rights Act of 1964 because of its ban on educational discrimination on the basis of national origin. Finding that the lack of linguistically appropriate accommodations (e.g. educational services in English) effectively denied the Chinese students equal educational opportunities on the basis of their ethnicity, the U.S. Supreme Court in 1974 ruled in favor of the students, thus expanding rights of students nationwide with limited English proficiency. The Supreme Court stated that these students should be treated with equality among the schools. Among other things, Lau reflects the now-widely accepted view that a person's language is so closely intertwined with their national origin (the country someone or their ancestors came from) that language-based discrimination is effectively a proxy for national origin discrimination.
The case relied on Section 601 of the Civil Rights Act of 1964.
bin/getcase.pl?court=US&vol=414&invol=563 

3. Castañeda v. Pickard 1978
The Feds and the state use standards established in Castañeda v. Pickard for program effectiveness:
The educational theory underlying the language assistance program is recognized as sound by some experts in the field or is considered a legitimate experimental strategy;
The program and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school; and
The program succeeds, after a legitimate trial, in producing results indicating that students’ language barriers are actually being overcome within a reasonable period of time.

4. Washington WACs
WAC (1) requires that districts “make available to each eligible student a transitional bilingual instructional program” as defined in WAC , which
Uses two languages, one of which is English, as a means of instruction to build upon and expand language skills to enable a student to achieve competency in English.
Teaches concepts and knowledge in the primary language of a student, while the student also acquires English language skills.
Tests students in the subject matter in English.

5. Three choices of program models
Dual Language
English and “other” native speakers
Both learn both languages
Developmental Bilingual (Late Exit)
ELLs only, learning content in their L1 through K-6, from 100% to 50% balance by 6th grade
Transitional Bilingual (Early Exit)
ELLs only, learning content in their L1 through K-3, instruction progressing toward English

6. Alternative models
“If the use of two languages is not practicable, an alternative instructional program, defined as “a program of instruction which may include English as a second language…designed to enable the student to achieve competency in English”, may be provided.”
WAC talks about conditions that allow a district to use alternative models.
L1 materials unavailable
Unexpected large increase of ELLs
Wide distribution of ELLs throughout grade levels
Bilingual teachers are unavailable (and the district made good faith effort to find them)

7. Three alternatives
Content-Based Instruction (CBI) or Sheltered Instruction (SI)
ELLs only, taught by ELL teachers
ELL teachers use language development strategies as well as content strategies
Supportive Mainstream
ELL and non-ELL students mixed
ELL teachers provide supplemental support in- or outside the regular classroom
All teachers use language development strategies
Collaboration between mainstream and ELL teachers/coach
Newcomer Program
Beginning ELLs only
Prep for other district ELL program

8. How does it fit for you? OSPI and Title III:
Classroom teacher is trained in, and uses, sheltered instruction strategies such as GLAD, SIOP or other.
ELL teacher provides language support for all levels of ELLs.
There is flexibility about where and when this happens.
BUT the ELL teacher can’t replace the classroom teacher as the teacher of content. That is supplanting.
Discuss your thoughts on the above.

9. Even better than that…”Dear Colleague”
The “Dear Colleague” letter is a joint guidance clarification from DOE and DOJ January 7, 2015 on the rules of Title III and civil rights laws as regards ELL students.
It covers ten civil rights guarantees or conditions for ELLs:
Identify and assess EL students in need of language assistance in a timely, valid, and reliable manner;
Provide EL students with a language assistance program that is educationally sound and proven successful;
Sufficiently staff and support the language assistance programs for EL students;
Ensure EL students have equal opportunities to meaningfully participate in all curricular and extracurricular activities, including the core curriculum, graduation requirements, specialized and advanced courses and programs, sports, and clubs;
Avoid unnecessary segregation of EL students;

10. Ensure that EL students with disabilities under the Individuals with Disabilities Education Act (IDEA) or Section 504 are evaluated in a timely and appropriate manner for special education and disability-related services and that their language needs are considered in evaluations and delivery of services;
Meet the needs of EL students who opt out of language assistance programs;
Monitor and evaluate EL students in language assistance programs to ensure their progress with respect to acquiring English proficiency and grade level core content, exit EL students from language assistance programs when they are proficient in English, and monitor exited students to ensure they were not prematurely exited and that any academic deficits incurred in the language assistance program have been remedied;
Evaluate the effectiveness of a school district’s language assistance program(s) to ensure that EL students in each program acquire English proficiency and that each program was reasonably calculated to allow EL students to attain parity of participation in the standard instructional program within a reasonable period of time; and
Ensure meaningful communication with LEP parents.

11. Clarification from OSPI
I wrote a letter to Mea Moore, Director of Migrant/Bilingual, and asked about a few of the points in the Dear Collegey letter. What does this mean for our state?
A formal response from OSPI Migrant/Bilingual and OCR is forthcoming.
Meanwhile, Mea answered some of my questions in three key areas:
ELD support program
SpEd
Re-entry

12. B. Provide EL students with a language assistance program that is educationally sound and proven successful;
DI: Dear Colleague section B p 13-14: A district/school must have a content based instruction program (sheltered or bilingual) AND an English language development program staffed by a cert or paras supervised by a cert. True?
MM: As is articulated in districts’ Transitional Bilingual Instructional Program plans submitted to us through their grant applications, district ELL programs are required to address both English language development support and meaningful access to content.
§  Page 13: ”Districts should provide designated English Language Development (ELD)/English as a Second Language (ESL) services for EL students at the same or comparable ELP levels to ensure these services are targeted and appropriate to their ELP levels.”
§  Page 18: “Meaningful access to the core curriculum is a key component in ensuring that EL students acquire the tools to succeed in general education classrooms within a reasonable length of time. One way to meet this obligation is to provide full access to the grade-appropriate core curriculum from the start of the EL program while using appropriate language assistance strategies in the core instruction so that EL students can participate meaningfully as they acquire English.”

13. F. Ensure that EL students with disabilities under the Individuals with Disabilities Education Act (IDEA) or Section 504 are evaluated in a timely and appropriate manner for special education and disability-related services and that their language needs are considered in evaluations and delivery of services;
DI: Section F p 25: Dual service (Sped/TIII) now required for kids qualified for both, correct? 
MM: Yes, this is not a new requirement in Washington and is monitored through Consolidated Program Review.   states that “Students identified as being eligible for both the state transitional bilingual instructional program (TBIP) and special education program will participate in the TBIP to the same degree and consideration given to every other child in the TBIP.”

14. H. Monitor and evaluate EL students in language assistance programs to ensure their progress with respect to acquiring English proficiency and grade level core content, exit EL students from language assistance programs when they are proficient in English, and monitor exited students to ensure they were not prematurely exited and that any academic deficits incurred in the language assistance program have been remedied;
DI: Section H p 34: An exited student can now be re-tested and re-entered into TIII/TBIP if he/she is struggling & fails the entry assessment. Correct? (Previously, an exited student was out for good)
MM:
Funding: Currently, a student who has tested out of TBIP cannot be requalified for TBIP/Title III funding as a Level 1-3 student, unless the student has left the United States for over one year. Refer tohttp://
Districts continue to receive funding for two years after a student has transitioned from program. Refer to 
“The exit criterion of a Level 4 score on the WELPA is set with the anticipation that transitioning ELLs are proficient enough in English to participate meaningfully in the regular educational program. Districts should provide language program services for only as long as necessary for the English Language Learner to transition out of program. While the focus of TBIP services to exited students is academic support, language development support should also be provided if this need is identified through monitoring.” Services: When a school district’s monitoring of an exited EL student indicates that a persistent language barrier may be the cause of academic difficulty because general education and remediation services have proven inadequate, school districts should re-test the student with a valid and reliable, grade-appropriate ELP test to determine if there is a persistent language barrier and must offer additional language assistance services where needed to meet its civil rights obligations.
In no case should re-testing of an exited student’s ELP be prohibited. If the results of the re-testing qualify the student as EL, the school district must reenter the student into EL status and offer EL services. If the student is reentered into EL services, school districts should document the bases for the reentry and the parents’ consent to such reentry.