What Are the Legal Requirements Related to ELL Education?

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Learn about some of the questions schools are asking about how to best implement the laws and regulations that relate to the education of English language learners (ELLs) during COVID-19.

As the COVID-19 pandemic stretches on, we continue to encounter an enormous number of disruptions in schools due to the emergence of new variants, students and educators being exposed to or becoming infected with the virus, the dramatic surge in teacher burnout and staff shortages, and ways the crisis is impacting English learners and immigrant families.

While grappling with this unprecedented crisis and courageously continuing to support educators, students, and families, it is also critical to ensure that our schools are aware of and follow the laws and regulations governing the education of English learners.

Part I of this two-part article series outlines some of the questions about laws and regulations that are arising during COVID-19. Part II, coming in the New Year, will offer tips and strategies for putting sound practices into place.

Note: Special thanks to EL Administrator Kristina Robertson for her contributions to this article.

FAQs: Services for ELLs During COVID-19

Here are three questions that address some important issues highlighted by the COVID-19 pandemic.

Family communication

1. Some English learners and their families do not have the necessary information they need about COVID-19 safety practices and school closures.  How can we make this more meaningfully accessible to all families?

Under federal and state laws, schools must ensure parents and guardians have meaningful access to district and school-related information (p. 2) as well as meaningful communication with parents and guardians (p. 9) regardless of their immigration status.

An example of meaningful access and communication with parents and guardians is the Brockton Public School District in Brockton, MA. In addition to providing written translations, family liaisons are provided with smartphones to communicate with parents/guardians using their preferred mode of communication.  A second example is Dearborn Elementary School in Dearborn, MI.  Their family liaison uses WhatsApp to communicate with parents and guardians; as this is the family's most common means of communication. Both districts know the importance of continuously interacting with parents and guardians to ensure that they understand and can draw from the latest school related information on behalf of their children.

 

Staffing

2. We are seeing a critical shortage of educators in our elementary grades and secondary subject matter classes. Is it okay to cancel or postpone our English language education programming?

Under the federal regulations, all English learners must be provided with "appropriate language assistance services" that are "educationally sound in theory and effective in practice." The federal regulations do not encourage nor make provisions for postponement exceptions.

Note: Colorín Colorado is currently working on resources to help schools address the impact of substitute teacher shortages on English learners and ELL educators. More information on this critical issue will be forthcoming soon.

Programming

3. Do the regulations require language education programming for English learners?

Yes! There have been many federal regulation rulings about the education of English learners. In the Lau v. Nichols decision, the Supreme Court ruled that schools must provide programming to help students overcome barriers to learning English.  In Castañeda v. Pickard, the Court ruled that it is essential for all educators to adhere to students' civil rights to an education by using the standards established by a 'three-prong ruling' that language programming be:

  1. based on sound education theory.
  2. implemented effectively with adequate personnel and resources.
  3. evaluated and proven to be effective and that alternative research-based improvements must be made when it is found not to be effective.

These rulings were reaffirmed in 2015 when the U.S. Department of Education and Civil Rights Division of the U.S. Department of Civil Rights wrote a letter to State and Local Education Agencies outlining the importance of the regulations and our obligations to adhere to these with our nation's English learners.

Common Civil Rights Issues: ELL Education

As part of the letter, the federal agencies involved identified eight specific challenges that had been identified and furnished steps for addressing these to ensure that schools follow the laws and support students to be successful in school and their lives:

1. Identify and assess EL students in need of language assistance in a timely, valid and reliable manner.

2. Provide EL students with language assistance programs that are educationally sound and proven to be successful.

3. Sufficiently staff and support language assistance programs.

4. Ensure EL students have equal opportunities to meaningfully participate in all curricular and extracurricular activities including core curriculum, graduation requirements, specialized and advanced courses and programs, sports, and clubs.

5. Avoid unnecessary segretation of EL students.

6. Ensure that EL students with disabilities under the Individual with Disabilities Education Act (IDEA) or Section 504 are evaluated in a timely manner for special education and disability-related services and that their language needs are considered in evaluations and delivery of services.

7. Meet the needs of EL students who opt out of language assistance programs.

8. Monitor and evaluate EL students in language assistance programs to ensure their progress with respect to acquiring English proficiency and grade level core content, exit EL students from language assistance programs when they are proficient in English, and monitor exited students to ensure they were not prematurely exited, and any academic deficits incurred in the language assistance program have been remedied.

This downloadable chart lists these eight challenges along with a self-analysis for your district or school to use to assess whether it is in compliance with the laws and regulations. Download the chart. Complete the chart by:

(1) Placing a checkmark in the 'occur' column for each of the common civil rights issues that are being addressed, or

(2) Describing the specific steps that will be taken to be in compliance with state and federal regulations.

Note: You can learn more about how other school districts have addressed these issues in cases handled by the Department of Justice and Office of Civil Rights related to the rights of ELLs and ELLs' families.

Video: Regulations for ELL Education

Attorney Roger C. Rosenthal is the Executive Director of the Migrant Legal Action Program (MLAP), a national non-profit support and advocacy center located in Washington, D.C.

In these excerpts from his 2014 interview with Colorín Colorado, Mr. Rosenthal discusses some of the court cases and regulations that impact the education of ELLs. See the complete interview in our Meet the Experts section.

Guides

  • English Learner Toolkit: For additional support for ensuring your school or district is in compliance, consult the English Learner Toolkit for State and Local Education Agencies.
  • Rights of ELLs: This brief guide from the Education Law Center of Pennsylvania provides an overview of the rights of English language learners as they relate to education access, special education, and immigration. Some of the regulations relate to Pennsylvania state law.

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