EL students and their civil rights must be protected regardless of language barriers. Schools have long had affirmative obligations under federal law to ensure that English Learner (“EL”) students obtain English proficiency and make adequate progress in the general curriculum despite language barriers.  In January, 2015, the Office for Civil Rights (“OCR”) and the Department of Justice issued a joint Dear Colleague Letter (“DCL”) on the issue of avoiding discrimination against EL students and limited English proficient parents. Schools must have EL programming that meets the following requirements:

  • The educational theory underlying the language assistance program is recognized as sound by some experts in the filed 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 the students’ language barriers are actually being overcome within a reasonable period of time.

In order to comply with civil rights statutes related to EL students, the DCL identifies areas in which schools have been found in non-compliance:

Identification.  Schools have an obligation to identify and assess EL student in need of language assistance in a timely, valid, and reliable manner.  Schools must provide notices to all parents of EL students regarding the students’ identification as an EL student in need of language assistance services within 30 days of the beginning of the school year.  The notice must be provided in a language that the parents can understand, and therefore, particularly with less common languages, the identification of the student must occur well before the 30 day deadline so that the notice can be translated into the parents’ primary language.  Schools should refer suspected EL learners (generally identified by a home language survey) for an English language proficiency assessment to determine proficiency in all four language domains: speaking, listening, reading, and writing.

Provision of services: Schools will violate civil rights laws where they do not provide EL students a language assistance program that is educationally sound and proven successful.  There is no requirement that a particular program be used, but the program chosen must enable EL students to attain English proficiency and parity of participation in the standard curriculum within a reasonable amount of time.  Programs must not be implemented in a “one size fits all” manner.  Students’ individual needs and language levels must be considered in determining the amount of time a student receives services, including core instruction in the primary language and English language instruction, in a day.

Sufficient resources for program.  Schools must “sufficiently staff and support” the language assistance program they have implemented for EL students.  This includes providing teachers who are highly qualified to provide language assistance services and trained administrators who can evaluate these teachers.  Just as with provision of special education services, the needs of students must drive staffing, not the other way around.  Therefore, a school cannot limit the amount of time students spend in EL programs based on the availability of staff.

Equal access to programs: EL students cannot be excluded from curricular or extracurricular programs, including the core curriculum, graduation requirements, specialized and advanced courses and programs, sports, and clubs, based on their EL status.  Schools may not provide specialized programing for EL students, including bilingual or sheltered content classes, that teach a “watered-down” version of the standard curriculum.

Integration: EL students must not be unnecessarily segregated from non-EL students.  EL students will often have to receive separate instruction from their non-EL peers for a period of time, but schools should ensure that EL students are with their peers whenever possible, such as during PE, art, and music, and non-instructional time.

Provision of special education: EL students with disabilities who qualify for services under the IDEA or Section 504 must be evaluated and served as any non-EL student would be, and their language needs must be considered in evaluations and delivery of services.  OCR has determined that formal or informal policies that prohibit dual services in the areas of EL language assistance and special education (or 504 accommodations) are impermissible.

Students who opt out: students have the right to opt out of EL programs.  Despite that decision, schools have an obligation to meet the needs of an EL student who has opted out of the language assistance program. A parent’s decision to opt a child out of EL programming must be “knowing and voluntary,” so it is important that school staff avoid recommending opt out and that information regarding EL be provided in the parent’s primary language.  Though a student may have opted out of language assistance programing, the student remains an EL student.  Therefore, the school must monitor his/her progress and if a student is not demonstrating appropriate growth in English proficiency or is struggling academically, the school should notify the parent of the problem and offer EL programing once again. A school must continue to take “affirmative and appropriate steps” to meet its civil rights obligations, which could include providing training for the student’s general education teacher on second-language acquisition.  A school should assess EL students’ English language proficiency at least annually.

Evaluation: schools must monitor and evaluate EL students who are in language assistance programs to ensure that they are making progress in acquiring English language proficiency and grade level core content.  Monitoring must consider all four domains—speaking, listening, reading, and writing.  Schools must exit students from the language assistance programs once they are proficient in English, but also have an obligation to continue to monitor exited students to ensure that they were not existed prematurely.  To exit a student from EL programing, a school must conduct an English language proficiency assessment.  The required proficient score must be set at a level that will enable students to effectively participate in grade-level content instruction in English.  Schools should maintain the records of these assessments.

Evaluate effectiveness of program: a school must periodically evaluate the effectiveness of the language assistance program that it implements to ensure that EL students are acquiring English proficiency and that each program is reasonably calculated to allow EL students to “attain parity of participation in the standard instructional program within a reasonable period of time.”

Communication with parents of EL students: schools have an obligation to ensure that parents of EL students can meaningfully communicate with the school.  A home language survey should be used to alert schools to parents who have limited English proficiency.

In addition to these requirements, schools must ensure that students do not experience discrimination, including harassment, exclusion, retaliation, or different treatment, because they are EL students.  For instance, a school may not implement a policy prohibiting students of non-majority students from speaking their primary language during the school day unless there is an educational justification for doing so.  Students, therefore, cannot be prohibited from or punished for speaking their primary language during unstructured, non-instructional time, such as during recess or at lunch.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Education Law Attorney, Cathleen M. Dooley at 480.461.5331, log on to udallshumway.com, or contact an attorney in your area.