Teaching to the Letter of the Law

Arlene Ortiz and Shirley Woika examine the legal obligations to educate English language learners in the U.S.

Ms. Johnson, a well-regarded and experienced fifth-grade teacher at Central Elementary School, has two new students with very limited English language skills. Despite Ms. Johnson’s experience teaching children with various abilities, this is her first year teaching Spanish children. The school does not have a permanent English as a second language (ESL) teacher, so Ms. Johnson decides to consult with her colleague. “I really want to help these children and they seem so eager to learn, but they don’t speak enough English to participate in the class activities. I don’t even know if they understand the lessons. How am I supposed to test their knowledge if they can’t read? I think they are supposed to get some type of ESL instruction one period a day. I hope this is enough. In the meantime, I have been giving them simple worksheets to complete, but I question my responsibility to them as their teacher. Am I doing enough? Maybe it would be best if I sent them to the fourth-grade class for part of the day or to the special education teacher.”
You are the teacher with whom Ms. Johnson has chosen to consult. As a general education teacher, what are Ms. Johnson’s legal obligations to the ESL students in her class? Is placing ESL students in a below-grade-level classroom or special education placement appropriate?

Teaching to the Letter of the Law

An English language learner (ELL) is defined by federal provisions as someone who “has sufficient difficulty speaking, reading, writing, or understanding the English language and whose difficulties may deny such individual the opportunity to learn successfully in classrooms where the language of instruction is in English,”(Pub. L. No. 103-382, sec. 7501). State definitions for an ELL vary substantially, but many are modeled after the federal definition (Rhodes, Ochoa, & Ortiz, 2005).

It is projected that by the year 2030, 40% of the school population will speak English as a second language (U.S. DOE & NICHHD, 2003). In schools, Spanish is the most frequent language spoken by English language learners (79%), followed by Vietnamese (1.95%) and Hmong (1.55%; Goldenberg & Coleman, 2010). The continuous development of legal mandates related to ELLs and the growth of ELL populations in historically homogenous communities warrants a closer look at legal mandates for educators and school administrators serving ELLs.

Few remedial services were available for ELLs in schools prior to 1960. They were often segregated from their peers, overrepresented in special education settings, given inadequate instruction, and inappropriately assessed (Texas Education Agency Bilingual/ESL Unit, 2004). From the 1960s until the 1990s, educational policy focused on what type of program was best suited for ELLs. Policies frequently shifted between favoring bilingual education or English-only instruction. Currently, policy places more emphasis on accountability and establishing appropriate educational standards for ELLs than on specific programs.

Educational policy for ELLs did not take the forefront of administrative agendas until the 1960s, following the seminal case of Brown v. Board of Education (1954), in which the decision involved the equality of education for minority students and established the principle of equal educational opportunity for all students while reaffirming the equal protection clause mandated by the 14th Amendment, XIV, § 1. Backed with the power of supreme law, federal legislation moved towards establishing a clear mandate to provide a free and appropriate public education to ELL students, regardless of national origin. Local courts also began to interpret the equal protection clause as applicable to ELL students.

The civil rights of minority children were ensured with the passage of Title VI of the Civil Rights Act in 1964, Pub. L. No. 88-352, 78 stat. 241. Title VI prohibits the discrimination of people on the basis of race, color, or national origin in the operation of federally assisted programs (e.g., Head Start). To help maintain the civil rights of minority children, the Bilingual Education Act was enacted as Title VII of the Elementary and Secondary Education Act of 1968 (ESEA), which would be renamed and reauthorized several times throughout the decades and eventually become the No Child Left Behind Act of 2001 (NCLB). The Bilingual Education Act established policy encouraging the use of bilingual education programs for economically disadvantaged language-minority children and allocated funds for programs.

NCLB and its predecessors require states to develop standards and accountability systems for all students, including ELLs. Specifi­cally, NCLB requires all states to develop English-language proficiency standards and align those standards to assessment measures used for accountability purposes. Funds were appropriated to states to improve education of ELLs by assisting children to learn English and meet state academic content and achievement standards.
When an ELL is evaluated for special education services, the Individuals with Disabilities Education Improvement Act (IDEIA; 2004) requires that assessment be nondiscriminatory and fair. Any child referred for special education services must be shown to be disabled in his/her native language in order to receive services. In other words, it must be clearly established that poor performance is not due to limited English-language proficiency.

Case Law
Case law has shaped how school systems respond to practices dealing with language-minority youth. ELL issues addressed by case law include culturally and linguistically fair assessment and evaluation, instructional practice, and mainstreaming of ELLs.

In terms of assessment practices, the decision in Diana v. Board of Education of California (1970) mandated that children from language-minority backgrounds where English is not the primary language spoken in the home must be assessed using nondiscriminatory procedures. Furthermore, appropriate linguistically and culturally relevant instruments must be used throughout the assessment process.

Over the years, courts have attempted to provide some direction for schools in terms of defining adequate instruction. Additionally, courts have attempted to increase education given to language minority students with mainstream peers to the greatest extent possible. For example, in 1973, the U.S. District Court asserted that a Denver public school district had failed to implement an adequate plan for ELLs and mandated a solution in Keyes v. School District No. 1, Denver, Colorado (1973). This case was brought to the court in order to secure desegregation of Denver School District schools. The court ruled that the segregated schools were educationally inferior to “white” schools elsewhere in the district. As a result, the school district agreed to make major changes to the quality of services for students with limited English proficiency.

Similarly, the decision of Lau v. Nichols (1974) essentially required the federal government to support bilingual education. In the case, a class action suit was filed by parents of Chinese children in San Francisco against the school district, alleging that students were deprived of an equal education because instruction was given in a language in which the students did not have proficiency. The Supreme Court reaffirmed that identical education did not constitute equal education under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2003). It was determined that before children can adequately participate in an educational program, they must first acquire basic skills. The court ruling resulted in the establishment of the Lau Remedies (1975) — guidelines given to local education agencies which linked the inclusion of linguistically and culturally appropriate instruction to the delivery of free and appropriate public education for all children. School districts were required to take affirmative steps to overcome educational barriers faced by non-English speakers.

In Rios v. Read (1978),the court ruled that the bilingual education program offered denied an equal educational opportunity to ELLs because it was a course in English and did not grant children access to academic instruction in the children’s native language. Factors considered in the decision of this case were the school professionals’ knowledge of bilingual teaching methods, language assessment and program placement procedures, native-language curriculum materials, and native-language instruction. The court indicated that the district cannot compromise a student’s right to meaningful education before proficiency in English is obtained. In other words, programs catering to ELL populations must include language acquisition development and acquisition of content knowledge.

Perhaps one of the most significant cases was Castañeda v. Pickard (1981), in which the plaintiff alleged that Raymondville, Texas Independent School District’s language remediation programs violated the Equal Education Opportunities Act (EEOA) of 1974. The Fifth Circuit Federal Court of Appeals formulated a three-part process to determine if a school district’s language program met its obligation under EEOA, which is known as the Castañeda Test. The three criteria of the Castañeda Test are theory, practice, and results. Schools must have a program based on sound educational theory with legitimate experimental strategy conducted by field experts. Likewise, schools must implement the program with appropriate instructional practices. Finally, schools should not continue a program with failed results.

Schools are obligated to provide a free and appropriate public education to ELLs regardless of their native status. In Plyler v. Doe (1982), the Supreme Court ruled that under the Fourteenth Amendment of the Constitution, states and their agents do not have the right to deny a free public education to undocumented immigrant children. Furthermore, school systems could not be agents for enforcing immigration law and were forbidden to make information about the legal status of students public.

A more recent case involving a Texas school district reaffirmed that it is unconstitutional to deliberately segregate cultural and linguistic minorities. In Santamaria et al. v. Dallas Independent School District et al. (2006), the court determined that the school principal deliberately assigned Latino and African American students to ESL classrooms instead of general education classes so that white students could be kept together in the same class. In addition, the court found that the principal kept ESL classes in a different part of the school building than general education classes. Furthermore, the court found that the principal attempted to conceal separation of minority students when an investigator visited the school — these violated students’ constitutional rights.


Unconstitutional or Illegal Practices:
• Inquiring about immigration status as part of enrollment process.
• Placing ELL students in lower grades or diluting work in order to “adapt” coursework.
• Denying non-English-speaking parents access to a translator. Federal regulations require districts to provide information about assessment, academic achievement, and related issues to parents in their native language or in their preferred mode of communication.
• Maintaining children who have met the limited English proficient (LEP) exit criteria in ESL-only classes.
• Placing ESL classes in remote quarters of the school building.
• Providing English language instruction only and not content-based instruction to students.

Permissible Practices:
• Schools can require proof of age, local residency, and immunizations.
• Social security numbers may be requested for some purposes, but not as part of the enrollment process, and they generally cannot be required.
• Providing ESL instruction only in English with the use of evidenced-based instructional methods for ELLs.
• Adequate access to ESL services with age-appropriate, comprehensible content lessons.

Suggestions for Improving Instruction
• Assess the needs of students to determine what model of instruction for ELLs would be most beneficial and practical (e.g., ESL vs. bilingual instruction).
• Explicitly state educational theory and provide empirical evidence to support instruction given to ELLs.
• Recommendations for amount of daily ESL instruction vary according to the child’s English language level. It is suggested that non-English speaking students receive two to three hours of ESL instruction per day, beginner-level students receive two hours, intermediate-level students receive one to one and a half hours, and advanced level students receive 36 minutes to an hour (NYC DOE, 2011; Pennsylvania Parent Information & Resource Center, 2010).
• Align the core ESL instructional program to the proficiency level of each LEP student and the English Language Proficiency Standards.
• Establish clear criteria for entering and exiting ELL status and services. School districts may use standardized tests of English-language proficiency such as the World Class Instructional Design and Assessment (WIDA; The Board of Regents of the University of Wisconsin System, 2011).
• Establish a formalized process for evaluating ELLs when referred for special education and gifted education. When an ELL student is referred, an ESL teacher should be a member of the IEP team. Even if an LEP student is found eligible for special education services, he/she must continue to receive ESL services until exit criteria are met. More information on appropriate use of assessment of ELL students may be found on the National Center for Response to Intervention website: http://www.rti4success.org/pdf/rtiforells.pdf.
• Establish a checklist for general education and ESL teachers to help guide instruction. The Beverly Taylor Sorenson College of Education and Human Development established a checklist highlighting the strategies that should be present in a classroom supportive of ELLs. This checklist may be found by accessing the following link: http://www.suu.edu/ed/resource/strategiesforteachersofellstudents.pdf. Lewis-Moreno (2002) and Rojas (2009) have established similar checklists.
• Conduct fidelity checks throughout the school year to ensure teachers are providing appropriate instruction to ELL students.
• Professional development opportunities are necessary to help build instructional skills and should be available for staff.
• Continuous assessment of content knowledge and English proficiency is helpful to track student progress and determine if program changes need to occur.

Schools working with children with various language needs should examine their current school policies and practices related to LEP students to avoid shortchanging minority students and potentially costly legal battles.
In response the opening question, it is the school district’s legal responsibility to provide an adequate instruction to ELL students. It would be illegal to place the ELL students in special education classes without a formal, culturally and linguistically appropriate evaluation. Likewise, it would be illegal to place the children in a lower grade for the entire day based on language ability. Therefore, Ms. Johnson should consult with school administrators to ensure that legal mandates are followed. For example, ELL students are required to receive instruction from a certified ESL teacher for a specific amount of time, which varies by state. Amount of ESL instruction often varies by level of English proficiency. The English-language proficiency of all ELL students should be assessed early with standardized measures such as the World Class Instructional Design and Assessment (WIDA). Results of assessments should then be used to determine student needs and inform decision making, including the daily time requirements of ESL instruction. Although instruction by the ESL teacher is critical to the development of English proficiency, general education teachers working with ESL students should be trained on how to integrate best practices in the instruction of ELL students. School administrators should allow Ms. Johnson to attend a professional development seminar having to do with instructional practices for ELL students. Another alternative would be for the administration to allow Ms. Johnson to observe and consult with a local ESL teacher for a half-day at another school to learn strategies to work effectively with ESL students in the classroom. Webinars are another viable alternative and are frequently made available by educational organizations, such as the National Council of Teachers of English (http://www.ncte.org/ell).

To ensure that ESL instruction is sufficient in quality, the Casteñeda Test may be used, which is based on theory, practice, and results. A school’s program must be based on sound educational theory with legitimate experimental strategy conducted by field experts and implemented with appropriate instructional practices. Programs should be terminated if failed results are obtained. Instruction in core content areas should be delivered according to each student’s English-language proficiency level, the content standards, and appropriate ESL-related adaptation and modifications.

Beverly Taylor Sorenson College of Education and Human Development (n.d.) Strategies for teachers of ELL students.
Retrieved from http://www.suu.edu/ed/resource/strategiesforteachersofellstudents.pdf.
Brown v. Board of Education, 347 U.S. 483 (1954).
Castañeda v. Pickard, 648 F.2nd 989 (5th Cir. 1981).
Durguno_lu, A. Y., & Goldenberg, C. (Eds.). (2011). Language and literacy development in bilingual settings. New York, NY: The Guildford Press.
Goldenberg, C., & Coleman, R. (2010). Promoting academic achievement among English language learners: A guide to the research. Thousand Oaks, CA: Corwin Press.
Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446.
Lewis-Moreno, B. (2002). “Instructional strategies for ESL students checklist.” Retrieved from http://saisd.net/admin/curric/bilingual/pdffiles/instructstratell.pdf.
National Center on Response to Intervention (2011). “RtI for English language learners: Appropriately using screening and progress monitoring tools to improve instructional outcomes.” Retrieved from http://www.rti4success.org/pdf/rtiforells.pdf.
No Child Left Behind Act of 2001 (NCLB), Pub. L. No.107-110.
Passel, J., & Cohen, D. (2008). “U.S. population projections: 2005-2050.” Washington, DC: Pew Research Center. Retrieved June 5, 2012, from pewhispanic.org.
Pennsylvania Parent Information & Resource Center (2010). “Understanding the ESL guidelines and support programs.” Retrieved from http://www.center-school.org/pa-pirc/documents/Understanding-ESL-Guidelines-and-Support-Programs.pdf.
Plyler v. Doe, 457 U.S. 202 (1982).
Rhodes, R. L., Ochoa, S. H., & Ortiz, S. O. (2005). Assessing culturally and linguistically diverse students: A practical guide. New York, NY: The Guildford Press.
Ríos v. Read, 480 F. Supp. 14 (E.D.N.Y. 1978).
Rojas, V. P. (2009). “UbD and differentiated instruction for ELL” [PowerPoint slides]. Retrieved from http://attachments.wetpaintserv.us/$UjKV%2ByHHb4V0qRoUK%2Bkcg%3D%3D451992.
Santamaria et al. v. Dallas Independent School District et al. 3:06-CV-692-L (2006).
State College Area School District (2011). State College Area School District response to instruction and intervention (RtII) manual. Retrieved from http://scasd.schoolwires.com/cms/lib5/PA01000006/Centricity/Domain/11/12%20SCASD%20RtII%20manual.pdf
U.S. Department of Education, Office of Special Education and Rehabilitative Services, Office of the Assistant Secretary, “National Symposium on Learning Disabilities in English Language Learners,” October 14-15, 2003: Symposium Summary, Washington, D.C., 2004.
New York City Department of Education (2011). Language allocation policy guidelines: The LAP handbook for ELL programs. New York, NY: Office of English Language Learners. Retrieved from http://schools.nyc.gov/NR/rdonlyres/90848C90-801C-4019-814D-DD01682B4DD9/0/LAPGuidelines_7_29_2011.pdf.

Arlene U. Ortiz, MSEd, NCSP, is a school psychology doctorate student at Penn State University. She earned a master’s degree in the psychology of bilingual students from Fordham University and a bachelor’s degree in early childhood special education from New York University.

Dr. Shirley A. Woika spent over 20 years in K-12 schools as a teacher, school psychologist, special education supervisor, and central office administrator. Currently, she is the director of clinical training in Penn State University’s graduate program in school psychology.