Tuesday, July 20, 2010

Discrimination Against English Language Learner Students

From David Hinojosa at MALDEF.

Here is the latest guidance from the US Department of Justice, Civil Rights Division regarding obligations under the EEOA (also located at: http://www.justice.gov/crt/edo/ellpage.php ). Not perfect or all-encompassing but it seems like a pretty big step forward—for the government. We especially seem to have a number of complaints on numbers 1-7. Hasta,

Discrimination Against English Language Learner Students

En Español http://www.justice.gov/crt/edo/ellpage_spanish.php

The Educational Opportunities Section of the Civil Rights Division is charged with enforcing the Equal Educational Opportunities Act of 1974 (EEOA). Section 1703(f) of the EEOA requires state educational agencies (SEAs) and school districts to take action to overcome language barriers that impede English Language Learner (ELL) students from participating equally in school districts’ educational programs. As part of its efforts to enforce the EEOA, the Section investigates complaints that SEAs or school districts are not providing adequate services to ELL students. The Section does not need to receive a written complaint to start an investigation. The Section also may initiate a review of an SEA’s or school district’s compliance with its EEOA obligations in the absence of a complaint. If an SEA or school district is violating the EEOA, the SEA or school district is given notice of the conditions that violate the EEOA and an opportunity to take corrective action. If within a reasonable time after such notice is given, the SEA or school district fails to take appropriate remedial action, the Section may bring a lawsuit on behalf of the United States. The United States also may intervene in a lawsuit brought by a third party.

Although section 1703(f) of the EEOA does not require schools to adopt a particular type of language acquisition program such as an English as a Second Language (ESL) program, courts generally consider three factors to assess compliance: (1) whether the school’s program is based upon sound educational theory or principles; (2) whether the school’s program is reasonably calculated to implement the educational theory effectively; and (3) whether, after a period of time sufficient to give the program a legitimate trial, the results of the program show that language barriers are actually being overcome. Examples of conditions that may violate the EEOA include the following:

1. A school fails to provide a language acquisition program to its ELL students;

2. A school fails to provide resources to implement its language acquisition program effectively (e.g., an ESL program lacks ESL teachers or ESL materials);

3. A school fails to take steps to identify students who are not proficient in English;

4. A school does not exit ELL students from a language acquisition program when the ELL students have acquired English proficiency, or a school exits ELL students without written parental or guardian permission before the students acquire English proficiency;

5. A school fails to communicate meaningfully with non-English-speaking or limited-English-speaking parents and guardians of ELL students by not providing such parents and guardians with written or oral translations of important notices or documents;

6. A school fails to provide language acquisition assistance to ELL students because they receive special education services, or a school fails to provide special education services to ELL students when they qualify for special education services; and

7. A school excludes ELL students from gifted and talented programs based on their limited English proficiency when such programs do not require English proficiency.

If you believe that an SEA or school district is violating its EEOA obligations to ELL students, please contact the Educational Opportunities Section by telephone at (202) 514-4092 or 1-877-292-3804 (toll-free), by facsimile at (202) 514-8337, or by letter to this address:

U.S. Department of Justice
Civil Rights Division
Educational Opportunities Section, PHB
Re: ELL Initiative
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

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