DOE/DOJ Joint Guidance Requires ELL Students Receive Equal Access

By February 2, 2015 News No Comments

The U.S. DOJ and the DOE recently issued joint guidance to remind SEAs, school districts, and all public schools of their legal obligation to ensure that English Language Learner (ELL) students participate meaningfully and equally in educational programs and services.

This is the first piece of guidance to address the array of federal laws that govern schools and SEAs’ obligations to ELL students. The guidance provides an outline of legal obligations for school districts and SEAs under civil rights laws, addresses compliance issues, discusses the federal obligation owed to limited English proficient (LEP) parents and guardians, and includes how Title III funding can be implemented in a manner consistent with these obligations.

In determining compliance of ELLprograms with the civil rights laws, the DOJ and DOE utilize the standards established by Castaneda v. Pickard, which assess whether the educational theory of the program is recognized or considered a legitimate experimental strategy by experts; whether the program and practices used are reasonably calculated to implement the educational theory; and ultimately, whether the program’s efforts have resulted in students’ language barriers being overcome within a reasonable period of time.

In investigations conducted by the DOJ and DOE, several areas of frequent noncompliance were identified for school districts and SEAs when attempting to meet their federal obligations to ELL students.

These areas of noncompliance include:

(1)identifying ELL students in a timely, valid, and reliable manner, including those who qualify under IDEA or Section 504;

(2)offering them an educationally sound language-assistance program;

(3)providing qualified staff and sufficient resources for instruction;

(4)ensuring they have equitable access to school programs and activities;

(5)avoiding the unnecessary segregation of ELL students;

(6)monitoring their progress in learning and grade-level work;

(7)remedying academic deficits they incur while in language-assistance programs;

(8)moving students out of language-assistance programs when they become proficient while monitoring those removed prematurely;

(9)evaluating the effectiveness of ELL programs; and

(10)providing LEP parents with resources in a language they can understand.

With respect to LEP parents, school districts and SEAs are obligated to ensure meaningful communication is maintained in a language these families can understand and enables them to meaningfully participate in the provision of services for their student.

It remains the responsibility of the school district to ascertain whether parents are to be considered LEP and what their language needs are, and develop a plan accordingly. The guidance provides several approaches a school district may use, such as utilizing a home-language survey to guide further communication efforts with the parent(s).

ELL programs are a key enforcement area for the U.S. Department of Education. Contact any of our student/special education practice group attorneys with questions regarding the Guidance or other aspects of ELL requirements under Illinois and federal law.

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