MooreEnglish

It is a common misconception that a school’s legal requirements for alternative language program (ALP) services are satisfied merely by placing English Language Learners (ELL) students in classrooms with English as a Second Language (ESL) endorsed teachers.

Although I’m sure that many ESL endorsed teachers are making excellent and valiant efforts to provide the very best ALP services, merely having an ESL endorsed teacher does not in fact guarantee that a student will receive appropriate ALP services.  Being ESL endorsed, is not the minimum legal standard for providing ALP services in schools.   Please consider the following timeline:

[Scroll down to the summary if you can't be bothered to read the whole thing.]

• The Civil Rights Act of 1964 laid the foundation for decades of language education policy that most recently has culminated in NCLB Title III and parts of NCLB Title I… The Civil Rights Act did not specifically refer to LEP students, but Title VI stated: No person in the United States shall; on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Education.
• On May 25, 1970, citing the Civil Rights Act, the director of Office for Civil Rights (OCR), Stanley Pottinger, issued a memorandum to all school districts having student bodies consisting of at least 5% students with limited English-speaking ability. In this memorandum (commonly known as the May 25 Memorandum), Pottinger outlined a policy that required districts take “affirmative actions to rectify language deficiency” (Pottinger, 1970). The memorandum forbade inclusion of students with limited English-speaking ability in classes for retarded students based on testing that would require English ability. Furthermore, the memorandum specified that school districts must quickly develop tracking systems to deal with special language needs. The May 25 Memorandum required that special language programs not be terminal, but should aim to help students achieve requisite language ability to enable returns to mainstream participation.
• Lau v. Nichols (1974) was a landmark supreme court decision that was pivotal in making mandatory the English language education of LEP students. The suit involved about 2,800 LEP students of Chinese ancestry in the recently desegregated San Francisco Unified School District. Of these students only about 1,000 were given supplemental English instruction, leaving about 1,800 students who received no special services. It was argued that lack of ability to speak and understand English denied students of an ethnic group a “meaningful opportunity to participate fully in the educational program.” In essence, identical education could not be equated with equal education, because of the language barrier.”
• The Equal Educational Opportunity Act (EEOA) of 1974 codified the Lau decision into law.  It obligated schools to “take actions to overcome language barriers that impede equal participation”.
• In 1975, OCR issued a document now known as the Lau Remedies. The document specified that schools must determine which languages are spoken in each student’s home and by each student. LEAs were then required to determine a student’s ability in each language spoken. Where possible this determination could be made by observation, otherwise schools were required to use formal assessment. Finally, schools were to develop and implement plans for assessing and diagnosing student needs and carry out educational programs to meet those needs.
• In 1978 the term “Limited English Proficient” (LEP) was coined in amendments to the reauthorization of the Elementary and Secondary Education Act (ESEA). This term expanded the group of students who qualified for participation in Title VII programs to include: “students ‘with limited English Language skills’ who have difficulty speaking, reading, writing, and understanding the English language.” Compliance required LEP identification procedures, including assessment.
• In 1981, the Fifth Circuit’s ruling on Castaneda v. Pickard clarified how school districts should determine compliance with the EEOA. First, schools need to have a theoretically sound plan (often called a “Lau Plan”) in place. Second, the plan must be implemented with fidelity (Note: My district’s Lau Plan can be found here). Finally, the program must be evaluated (probably through student assessments) and the plan must be updated as needed to insure that the plan is as theoretically sound as possible.
• In 2001, the ESEA was reauthorized as the No Child Left Behind (NCLB) Act.  The Act required that states create or adopt standards for English Language proficiency standards and align them to English Language Proficiency assessments. These standards and assessments were required to focus on five language domains: speaking, listening, reading, writing, and comprehension. Finally, NCLB required LEAs to set annual measurable academic outcomes (AMAO) and show that LEP students are progressing.

In summary, schools are required to:

1. Provide equal educational services that do not discriminate based on race, ethnicity, or language preference.
2. Take actions to overcome language barriers.
3. Provide special services to language minority students that are NOT identical to the services that all students receive.
4. Follow their district’s Lau Plan to make sure that students receive appropriate [instruction and accommodations].
5. Evaluate English language instruction. Schools must make affirmative efforts to improve [services to language minority students].
6. Ensure that English language instruction appropriately addresses the five modalities: speaking, listening, reading, writing, and comprehension.

Clearly, having ESL endorsed teachers in the classroom is NOT the legal minimum standard.

Note: I wrote my Master’s Thesis on a very similar topic.  Its bibliography has more and better citations than the links provided above.

Tags: Case Law, Education Policy, ESL Endorsement, ESL Service, Federal Law, Federal Regulation, Language Policy, Minimum Requirementss, NCLB, United States