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Impact Feature Issue on Educating K-12 English Language Learners with Disabilities

The Legal Obligations of Education Systems to Serve English Learners with Disabilities

Author

Joanne Karger is a Policy Analyst and Research Scientist with CAST, an educational research and development organization focusing on Universal Design for Learning, and based in Wakefield, Massachusetts. She is also an attorney who has worked extensively in the area of education law. She may be reached at jkarger@cast.org or at 781/245-2212.

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The number of English learners (ELs) enrolled in the public schools has been increasing rapidly over the past decades. Along with this increase, more ELs are being identified for special education. The relationship between language development and disability is complex. In some instances, ELs may be improperly labeled as having a disability. In other instances, these students may not receive the special education and related services that they need.

There are two types of laws that address the education of ELs with disabilities – those that pertain to language learning, and those that pertain to the provision of special education services. The first part of this article discusses obligations with respect to all ELs, including ELs with disabilities, under Title VI of the Civil Rights Act of 1964, the Equal Educational Opportunities Act, and the Elementary and Secondary Education Act. That is followed by a discussion of specific obligations pertaining to ELs with disabilities under the Individuals with Disabilities Education Act.

Requirements of Title VI and the Equal Educational Opportunities Act

Title VI of the Civil Rights Act of 1964 (Title VI) is a civil rights law that prohibits discrimination on the basis of race, color, or national origin in programs that receive federal funding.1 The Office of Civil Rights of the U.S. Department of Education is the federal agency that enforces Title VI.2 In investigating complaints under Title VI, the office has noted that Title VI does not require a particular program of instruction such as English as a Second Language. However, once a district offers a bilingual program, at a minimum, the teachers should be able to speak, read, and write both languages and should have received adequate instruction in bilingual education.3

The Equal Educational Opportunities Act (EEOA) is another civil rights law that requires states and school districts to take appropriate action to overcome language barriers that impede the equal participation of ELs in instructional programs.4 This law was originally passed in 1974, the same year as the Supreme Court’s decision in the Lau v. Nichols case. In this case, the Supreme Court concluded that the San Francisco school system had failed to provide non-English speaking Chinese students with equal educational opportunities under Title VI.5

The Civil Rights Division of the U.S. Department of Justice enforces the EEOA and investigates complaints that states or districts are not providing appropriate services to ELs.6 The Department of Justice has pointed out that the EEOA does not require educational agencies to use a particular type of language program such as English as a Second Language. Rather, courts typically use three factors to determine whether the educational agency acted appropriately:

  • Is the program based on sound educational theory?
  • Is the program reasonably calculated to carry out this educational theory effectively?
  • After a sufficient time, does the program show that the language barriers facing ELs are actually being overcome? 7

The Office of Civil Rights has applied these same three factors to the investigation of complaints under Title VI.8

 Originally passed in 1965 as part of President Johnson’s War on Poverty, the Elementary and Secondary Education Act (ESEA) is the major federal education statute that focuses on the education of all students in grades K-12. It emphasizes high standards and accountability.

Under Title I of the ESEA, as amended by the No Child Left Behind Act of 2001, states are required to adopt challenging academic content and achievement standards for all children in the state.9 Title I also requires states to conduct yearly academic assessments that are aligned with these standards10 and report on the progress of students in certain subgroups, including race/ethnicity and limited English proficiency.11 English learners (referred to in the ESEA as “limited English proficient children”) must be assessed in a valid and reliable manner with reasonable accommodations, including (to the extent practicable) assessments in the language and form most likely to yield accurate data on what these students know and can do until they have achieved English language proficiency.12 ESEA regulations also permit states to exclude from the reading/language arts assessment an EL who has attended school in the United States for less than 12 months.13

Title III of the ESEA focuses on ensuring that ELs, including immigrant children and youth, attain English proficiency and meet the same challenging academic content and achievement standards that other students are expected to meet.14 Title III provides grants to states, which award subgrants to districts and other eligible entities to improve the education of ELs.15 The law does not specify what type of instructional program a district must use, as long as the program is “based on scientifically based research.”16

Under Title III, states must establish English language proficiency standards that are based on the four language domains (speaking, listening, reading, and writing) and that are aligned with the state’s content and achievement standards for all students.17 States must also assess the English proficiency of students served under Title III on an annual basis.18 Moreover, states are required to establish annual measurable achievement objectives that include:

  • Annual increases in the number or percentage of children making progress in learning English.
  • Annual increases in the number or percentage of children attaining English proficiency by the end of each school year.
  • Progress for ELs in reading/language arts and mathematics.19

Beginning in 2011, the U.S. Department of Education has offered states the opportunity to request flexibility to waive certain requirements of the ESEA. To receive flexibility, each state must submit a waiver request that addresses several principles for improving academic achievement and increasing the quality of instruction. In providing guidance on what states must include in their waiver requests, the department has noted that “English Learners are covered by all the principles of this flexibility.” The guidance also included ways in which states could address ELs in their waiver requests, including potential changes concerning the third objective identified above on progress in reading/language arts and mathematics.20

The Individuals with Disabilities Education Act (IDEA) is the federal special education statute. IDEA is both a funding statute and a civil rights statute that was enacted under the Fourteenth Amendment. IDEA includes several provisions that pertain to the evaluation and identification of ELs with disabilities. These provisions are intended to ensure that ELs are not identified inappropriately for special education. In conducting special education evaluations, school districts must ensure that assessments and other evaluation materials are selected and administered in a manner that is not discriminatory on a racial or cultural basis.21 In addition, these assessments must be administered in the language and form that is most likely to provide accurate information about what the child knows and can do, unless it is not feasible to do so.22 Moreover, trained and knowledgeable personnel must administer the assessments.23 The Act further specifies that a child must not be found eligible for special education services under IDEA if the determining factor is limited English proficiency.24

Several IDEA provisions relevant to ELs with disabilities pertain to the development of Individualized Education Programs (IEPs). IDEA requires that, in the development of an IEP for a student with limited English proficiency, the IEP team consider the language needs of the child.25 In addition, districts must take whatever action is necessary to ensure that the child’s parents understand what is happening at the IEP meeting, including arranging for an interpreter if the parents’ native language is not English.26

Additional requirements pertain to communication with parents of ELs with disabilities. Districts must provide parents prior written notice when the district proposes to initiate or change (or refuses to initiate or change) the identification, evaluation, educational placement, or provision of a free appropriate public education. IDEA specifies that this notice must be provided in the parents’ native language, unless it clearly is not feasible to do so.27 Similarly, when the district provides parents with a notice of procedural safeguards, this notice must be written in the parents’ native language, unless it clearly is not feasible to do so.28

All of the above requirements are intended to help improve the provision of services to ELs with disabilities. In order to address the needs of this population more effectively, it is important for educators to be aware of their legal obligations and to work collaboratively with families in implementing these obligations.

Notes

1. 42 U.S.C. § 2000d et seq.

2. See http://www2.ed.gov/about/offices/list/ocr/eeolep/index.html

3. See http://www2.ed.gov/about/offices/list/ocr/docs/lau1991.html

4. 20 U.S.C. § 1703(f).

5. 414 U.S. 563 (1974).

6. See http://www.justice.gov/crt/about/edu/types.php

7. Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981).

8. See http://www2.ed.gov/about/offices/list/ocr/docs/lau1991.html

9. 20 U.S.C. §§ 6311(b)(1)(A)–(B).

10. 20 U.S.C. § 6311(b)(3)(A).

11. 20 U.S.C. §§ 6311(b)(2)(C)(v), (G).

12. 20 U.S.C. §§ 6311(b)(3)(C)(ix), (III).

13. 34 C.F.R. § 200.6(b)(4)(iv).

14. 20 U.S.C. § 6812(1).

15. 20 U.S.C. §§ 6821, 6825.

16. 20 U.S.C. § 6812(9).

17. 20 U.S.C. § 6823(b)(2).

18. 20 U.S.C. § 6823(b)(3)(D).

19. 20 U.S.C. § 6842(a)(3)(A).

20. U.S. Department of Education (2011), ESEA Flexibility: Frequently Asked Questions. Available at http://www2.ed.gov/policy/elsec/guid/esea-flexibility/index.html .

21. 20 U.S.C. § 1414(b)(3)(A)(i).

22. 20 U.S.C. § 1414(b)(3)(A)(ii).

23. 20 U.S.C. § 1414(b)(3)(A)(iv).

24. 20 U.S.C. § 1414(b)(5)(C).

25. 20 U.S.C. § 1414(d)(3)(B)(ii).

26. 34 C.F.R. § 300.345(e).

27. 20 U.S.C. § 1415(b)(3),(4).

28. 20 U.S.C. § 1415(d)(2).