Quality Education for Children with Disabilities:
Topic Briefs for Parents and Their Advocates
#8 – Rights of Limited English Proficient Students*
Introduction
Students
with disabilities who are also limited English proficient – a term used in
federal law to refer to certain individuals whose native language is other than
English – are entitled to the full protection of both the disability laws and
those addressing language minority students.
Together, these two sets of laws may be used to ensure that students who
have disabilities and limited proficiency in English are well served in school.
The
Individuals with Disabilities Education Act (IDEA) includes a number of
explicit provisions critical to quality education for limited English
proficient children with disabilities.
A 1997 amendment to the law emphasizes that language needs must be taken
into account in designing the particular special education services a student
is to receive.1 Other
provisions of IDEA protect limited English proficient children in the special
education evaluation process, require that parents be provided notices in their native language, and
obligate schools to provide interpreters at meetings held to plan or review a
student’s special education services.2 Beyond IDEA, however, it is critical that
disability advocates for language minority children be familiar with federal
laws protecting language minority, or limited English proficient, students in
general. This topic brief focuses on
rights under the two preeminent federal laws addressing these issues, Title VI
of the Civil Rights Act of 1964 and the Equal Educational Opportunities Act of
1974, with briefer treatment of relevant provisions of the Elementary and
Secondary Education Act and the Carl Perkins
Vocational and Technical
Education Act.
Federal
Education Rights in General
Two
federal anti-discrimination laws require states and school systems to give
students with limited English proficiency a meaningful, equal opportunity to
master the same body of skills and knowledge that all other students are
expected to learn: Title VI of the Civil Rights Act of 1964 and the U.S.
Department of Education regulations enforcing it,3 and the Equal Educational
Opportunities Act of 1974.4
In addition, the federal statute that provides funding to state and
local school systems for bilingual education was amended in 1994 to emphasize
programs that help children develop proficiency in English and their native
language, and to "meet the same challenging State content...and student
performance standards expected for all children...."5
The
federal laws protecting language minority students do not specify particular
services a school must provide, either to limited English proficient students
in general or to individual students.
Nor do they set out particular procedures for requesting or developing
services for individual students.6
Rather, the Supreme Court ruled in Lau v. Nichols that
implementing the regulations and program guidelines under Title VI requires
"affirmative steps to rectify the language deficienc[ies]" of
students "effectively foreclosed from any meaningful education."7
The Equal Educational Opportunities Act requires states and school systems
"to take appropriate steps to overcome language barriers that impede equal
participation by its students in its instructional programs."8
Particular
Requirements Under Title VI and the Equal Educational Opportunities Act
To
fulfill the broad obligations created by Title VI and the Equal Educational
Opportunities Act, a school system first must (1) adopt an educational approach
that experts believe is sound, or promising as a new strategy, and (2) actually
put the approach into practice, including devoting the resources necessary to
implement it effectively.9
Most importantly, the school system must obtain good results: a school
system that stays with an ineffective approach illegally denies equal
educational opportunity.10
The
lack of specific service requirements notwithstanding, courts (interpreting the
Equal Educational Opportunities Act) and the U.S. Department of
Education/Office for Civil Rights (which enforces Title VI) have recognized
certain broad features as critical to an effective, legally sufficient
program. School systems should have a
comprehensive approach to educating limited English Proficient students,
including identification of youth not in school, identification of those with a
home language other than English, adequate assessment to determine students'
ability to read, write and comprehend English, and adequate curriculum, texts
and materials. Children must learn to
read and write in English, and must receive academic content instruction in a
language they understand.11
Schools must assess students in their dominant language to determine
whether they are falling behind academically while English skills are being
stressed, and to provide compensatory services as needed.12
Staff
must have the skills and training necessary to implement the chosen program.13 Teachers in bilingual programs should be
able to speak, read and write both languages, and be fully qualified to teach
their subject.14
Students must have access to all facets of the school's educational
program, including Title I (formerly “Chapter 1") services, vocational
education and appropriate special education services when necessary.
"Exit
criteria" for termination of limited English proficient services must
ensure that students can read, write and comprehend English well enough to
learn successfully in an English-only program.
Exit criteria that simply test a student's oral skills are inadequate.15 In addition, a school's exit criteria should
be suspect if, for example, "formerly" limited English proficient
students cannot keep up with English speaking peers, need simplified English
materials in order to succeed in all aspects of the school's curriculum, or
have higher grade retention or dropout rates than do other students.16 Once "exited," individual students
should be monitored for their ability to function in the mainstream.
Enforcement
The
U.S. Department of Education/Office for Civil Rights enforces Title VI. An individual or organization believing that
a school system is violating its obligations under this law may file an
administrative complaint with the appropriate regional office.17 Title VI may also be enforced through
private law suits,18 as may the Equal Educational
Opportunities Act.19
Selected
Other Education Laws Relevant to Quality Education for Language Minority
Students
A
number of other federal education statutes speak to the needs of limited English
proficient students, including Title I of the Elementary and Secondary
Education Act (ESEA), the Carl Perkins Vocational and Technical Education Act, and the School-to-Work Opportunities
Act.
Title
I of the ESEA requires that any school receiving Title I money make adequate
yearly progress toward getting all students to meet state performance
standards. Title I schools must provide
an accelerated curriculum, effective instruction, timely and effective
assistance to students when they begin to fall behind, high quality teaching
staff and high quality professional development.20 All of this must be provided in a program
developed in partnership with parents.21 Title I provides that limited English proficient students are
eligible for Title I services on the same basis as other children selected to
receive services.22
Further, these students must be held to the same high content and
performance standards required of all Title I students, and assessed to
determine how well they are progressing toward these standards.23 Limited English proficient students must be
assessed, to the extent practicable, in the language and form most likely to
yield accurate and reliable information on what they know and can do, in order
to determine such students’ mastery of skills in subjects other than English.24 Their parents, to the extent practicable,
must be given the opportunity to be full participants in their children’s
education.
The
Perkins Act,25 which provides for the creation of
high-quality vocational education programs that integrate academic and
vocational education (including the teaching of advanced academic skills) and
teach students about all aspects of the industry they are preparing to enter,
prohibits discrimination against limited English proficient students, and
requires that they be afforded equal access to all programs.26 Perkins also mandates that states, local
school systems and individual schools plan
their vocational education programs to meet the needs of limited English
proficient students and enable these students to meet the standards set for all
student, and to prepare for further learning and high skill, high wage careers.27 The School-to-Work Opportunities Act, under
which states have created systems
intended to provide students with the opportunity to participate in high
quality programs that integrate school- and work-based learning, vocational and
academic education, and secondary and postsecondary education, explicitly
requires that systems and programs be designed to serve all
students. The law defines “all
students” as “both male and female students from a broad range of backgrounds
and circumstances, including...students with limited-English proficiency....”28
Notes
1. 20 U.S.C. §1414(d)(3)(B)(ii). See also Chicago (IL) Public Schools, District #299, Education for the Handicapped Law Report [EHLR] 353:214 (U.S. Department of Education/Office of Civil Rights 2/6/89) (use of monolingual speech therapists and untrained aides to provide speech therapy to Spanish-speaking students violated Title VI of the Civil Rights Act of 1964 and §504 of the Rehabilitation Act).
6. State law, however, may require particular programs, services or procedures. Parents and advocates should investigate, for example, state laws, regulations or policies on education of limited English proficient students, standards on the use of English in instructional programs and requirements for certification of personnel who work with limited English proficient students. See, e.g., Ariz. Rev. Stat. Ann. §15-751 et seq.; Mass. Gen. L. ch. 71A.
7. 414 U.S. 563, 566-68 (1974). The court held that failure to address the needs of students who do not understand English constitutes illegal discrimination on the basis of national origin. The Chinese-speaking students in Lau were simply placed in San Francisco's general education program, without even instruction to teach them English. The case was brought in part under Title VI, and the court cited the Title VI regulation prohibiting "criteria or methods of administration" that have "the effect" of discriminating on the basis of national origin, or "the effect" of impairing or defeating an educational program's goals in regard to students of a particular national origin. (This regulation now appears at 34 C.F.R. §100.3(b)(2).) The court found it "obvious that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from...[the] school system which denies them a meaningful opportunity to participate in the educational program--all earmarks of the discrimination banned by the regulations." 414 U.S. at 563.
9. Castaneda v. Pickard, 648 F.2d 989, 1009-10 (5th Cir. 1981); see also Gomez v. Illinois Bd. of Ed.., 811 F.2d 1030 (7th Cir. 1987); Teresa P. v. Berkeley Unified School District, 724 F. Supp. 698 (N.D. Cal. 1989); Keyes v. School District No.1, Denver, 576 F. Supp. 1503 (D. Colo. 1983). Advocates should note that the holdings in Castaneda and Teresa P. that Title VI requires a showing of discriminatory intent were partially rejected in Guardians Association v. Civil Service Commission, 463 U.S. 582 (1983). While a majority there held that the Title VI statute requires proof of discriminatory intent, a different majority held that the Title VI regulation--specifically, 34 C.F.R. §100.3(b)(2)-- permissibly establishes a "disparate impact" or "discriminatory effect" claim.
10. Castaneda, supra, at 1010.
11. Keyes, supra, 576 F. Supp. at 1518.
12. Castaneda, supra, 648 F.2d at 1014. Schools must also have in place a mechanism for assessing the overall results of programs for limited English proficient students. Keyes, supra, 576 F. Supp. at 1518. See also Memorandum From Michael L. Williams, Assistant Secretary for Civil Rights To OCR Senior Staff Regarding Policy Update on School's Obligations Toward National Origin Minority Students With Limited English Proficiency (U.S. Department of Education September 27, 1991) at 9 (hereinafter "1991 OCR Memorandum").
13. Keyes, supra, 576 F. Supp. at 1517.
14. Keyes, supra, 576 F. Supp. at 1516; Castaneda, supra, 648 F.2d at 1013. See also 1991 OCR Memorandum, supra, at 5.
15. Keyes, supra, 576 F. Supp. at 1518 (noting importance of testing reading and writing as well as oral language skills); 1991 OCR Memorandum, supra, at 7.
16. 1991 OCR Memorandum, supra, at 6.
18. Lau, for example, was brought by individuals pursuant to Title VI.
19. See 20 U.S.C. §1706. The U.S. Attorney General may also institute a civil action on behalf of an individual whose rights under the Equal Educational Opportunities Act have been violated. Id.
20. See 20 U.S.C. §§6314, 6315.
24. Id.
25. 20 U.S.C. §2301 et seq., as amended by the Carl D. Perkins Vocational and Applied Technology Education Amendments of 1998, Pub. L. 105-332, 112 Stat. 3076 (October 31, 1998).
26. 20 U.S.C. §§2302(23)(F), 2342(c)(8), 2354(b)(8), as amended by the Carl D. Perkins Vocational and Applied Technology Education Amendments of 1998, Pub. L. 105-332, 112 Stat. 3076 (October 31, 1998).
27. 20 U.S.C. §§2302(23)(F); 2323(c)(2), 2342(b)(1), 2342(c)(7), 2342(c)(8)(C), 2342(c)(12), 2344(b)(1), 2344(b)(8), 2354(b)(4), 2354(b)(7), 2355(b)(5), as amended by the Carl D. Perkins Vocational and Applied Technology Education Amendments of 1998, Pub. L. 105-332, 112 Stat. 3076 (October 31, 1998).