When it comes to the topic of communicating with non-English speaking parents of SPED students,  public schools have an obligation to ensure that the non-English speaking parents of special education students can communicate with the school about the students’ education.  In Arizona, schools often encounter non-English speaking parents with children who need special education or other disability-related services and some schools are unsure what the obligation is to provide interpreters or translate documents.

In January, 2015, OCR and the Department of Justice (“DOJ”) issued a joint Dear Colleague Letter (“DCL”) on the issue of avoiding discrimination against English Learner students and limited English proficient parents.  In the DCL, OCR stated that school districts have an obligation to ensure that parents can meaningfully communicate with the school.

Title VI of the Civil Rights Act of 1964 (“Title VI”) requires public schools to take affirmative steps to ensure that students and parents with Limited English Proficiency (“LEP”) are able to meaningfully participate in educational programs and services.  42 U.S.C. § 2000d to d-7; Lau v. Nichols, 414 U.S. 563 (1974).  In addition, the Equal Educational Opportunities Act (“EEOA”) requires that public school districts must act to overcome the language barriers that “impede equal participation by students in their instructional programs.”  20 U.S.C. § 1703(f).

The Individuals with Disabilities Education Act (IDEA) emphasizes the importance of ensuring that families of students with disabilities have meaningful opportunities to participate in the education of their children, which is more difficult where the families are LEP.  20 U.S.C. § 1400(c)(5)(B).   The IDEA regulations require that public schools “must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP Team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English.”  34 C.F.R. § 300.322(e).  Therefore, schools must provide interpreters during IEP meetings or other special education meetings for LEP parents who do not speak English well enough to participate meaningfully without an interpreter.

Be aware that simply asking a staff member who speaks Spanish (or whatever language is needed) to interpret may not be sufficient.  Be sure that the person providing the interpretation is skilled enough at interpretation, not just the language, to be able to communicate the content of what is being said at the meeting between the parent and the rest of the team.  The DCL letter also warns that language assistance must be provided effectively, which it says can be provided by competent staff, but outside resources may be necessary if bilingual staff are not competent to translate documents from English to Spanish (or other required language).

Though the IDEA does not specifically require that special education-related documents be translated into other languages, the Office for Civil Rights (“OCR”) has found a school’s failure to do so to be a violation of the civil rights laws it enforces. For instance, in Hawaii State Department of Education, OCR began an investigation into allegations related to, among other things, ineffective communication with LEP parents.  During investigation, the district entered into a voluntary resolution agreement that included a provision requiring the district to create a process for translating written materials.  53 IDELR 101 (2009).

In order to ensure meaningful communication, the District must also develop and implement a process for determining whether parents have LEP and if so, what their language needs are.  The process developed and implemented must be designed to identify all LEP parents or guardians.  In its DCL, OCR and DOJ stated that a district could rely on a student registration form, such as a home language survey, to inquire whether a parent or guardian requires oral and/or written communication in a language other than English.  Schools should ensure that the student registration form designed to elicit this information is translated and sent out in Spanish, if that is a common language in the District.

Though it may be an added expense, and is certainly an administrative burden, schools can best avoid an OCR complaint on this issue where they provide communication, both written and oral, in the native language of a LEP parent whose child receives special education services or has a 504 plan.

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.