Legal Matters: February 2023
Multilingual learners (MLs) are widely known as English learners (ELs); yet school leaders and policymakers are beginning to use this more inclusive term for students whose first language is not English. As one of the fastest-growing student populations with specialized instructional needs, this group has historically lagged behind their peers to meet academic standards. The COVID-19 pandemic exacerbated the inequities MLs face. Specifically, many schools have failed to grant MLs the educational opportunities that they are legally entitled to receive as documented by numerous lawsuits, Office for Civil Rights (OCR) complaints, and research studies. Our goal with this article is to help school leaders avoid noncompliance by providing vignettes of legal violations followed by checklists to increase compliance. First, however, we outline MLs’ legal rights and recent federal guidance.
MLs’ Legal Rights
Title VI of the Civil Rights Act and the Equal Educational Opportunities Act (EEOA) require public schools to provide MLs with equal access and equal opportunity to participate in instruction and school programs. In addition to federal and state statutes, three federal court decisions further clarify what schools must do for MLs (see Lau v. Nichols, 1974; Castañeda v. Pickard, 1981; and Horne v. Flores, 2009). Despite these legal protections, we have observed an increase in costly litigation involving schools violating MLs’ rights to an equitable education (Everson & Hedges, 2019). The intensifying legal challenges could be due to the “complex legal issues surrounding the interpretation and implementation of ambiguous federal laws related to [MLs] …” (Everson & Hedges, 2019, p. 5).
To help school leaders avoid legal violations, the U.S. Department of Justice (DOJ) and OCR released guidance in 2015 outlining schools’ legal obligations to MLs. This guidance revealed that State Education Agencies (SEAs) and Local Education Agencies (LEAs) continue to struggle with not only understanding but also fulfilling their legal obligations to these students (U.S. DOJ & OCR, 2015). The federal guidance outlined 10 areas of noncompliance; however, in creating our checklist, we prioritized only three areas that address common legal violations. They include: 1) “Providing [ML] students with a language assistance program, 2) staffing and supporting [an ML] program, and 3) evaluating the effectiveness of a district’s [ML] program” (U.S. DOJ & OCR, 2015, p. 4). These three areas are drawn from the Castañeda Standard, a three-part test created by the Fifth Circuit Court to evaluate the adequacy of a school district’s language instruction educational program (LIEP). A school district is legally required to create a plan, commonly referred to as a Lau Plan, outlining how it is addressing the educational needs of MLs. These plans are evaluated yearly by SEAs to ensure compliance with federal and state laws.
Vignettes and Checklists
To illustrate what noncompliance looks like, we provide the following three vignettes. They are followed by checklists to assess whether your schools are providing MLs with equitable educational opportunities. The vignettes correspond with federal guidance to help school leaders better implement the Castañeda Standard. Consider discussing these vignettes at faculty meetings to increase your colleagues’ legal literacy about MLs (Everson & Decker, 2022).
1. Schools must provide MLs with a language instruction assistance educational program.
- Rural School District recently revised their Lau Plan for the 2023–24 school year. Starting in 2023, the district will offer MLs tutors for grades K–1 and pull-out English as a second language (ESL) instruction for grades 2–12. MLs in grades K–1 will also receive additional reading and language instruction from English language arts teachers three times per week. MLs who have higher proficiency levels in English will receive push-in services from an ML tutor five times per week. Is this legal?
- No, the district has violated the EEOA by denying an equal educational opportunity. Specifically, “when [ML] students are identified based on a valid and reliable [English language proficiency] test, school districts must provide them with appropriate language assistance services” (U.S. Dept. of Justice & U.S. Dept. of Education, 2015, p. 12). All MLs are entitled to receive English language services from teachers adequately trained to deliver ML programming rather than tutors, aides, or paraprofessionals. Additionally, MLs at higher English proficiency levels are still entitled to full English language services from an adequately trained teacher until they meet program exit criteria.
Use this checklist to assess your school’s LIEP:
- Are we providing services to all MLs, including—but not limited to—kindergartners, older MLs, MLs with disabilities, and MLs with higher proficiency levels who have not exited?
- Are we supplementing regular education instruction with staff, not just aides/assistants/tutors/paraprofessionals?
- Are we addressing the needs of long-term MLs (which include students who have not reached proficiency within five years of beginning programming)?
2. Schools must staff and support an ML program.
- Hosaam is an ML coordinator. It is the start of the school year, and due to staffing shortages, he instructed all schools with fewer than 10 MLs to use general education teachers to provide English language services to MLs. Hosaam scheduled training for those teachers, which starts in December. He also directed those schools to hire at least one paraprofessional per building to supplement instructional programming for MLs. Is this legal?
- No, the district has violated the law because “school districts have an obligation to provide the personnel and resources necessary to effectively implement their chosen [ML] programs” (U.S. Dept. of Justice & U.S. Dept. of Education, 2015, p. 14). This means that districts must have qualified teachers to provide language services, regardless of staffing shortages. Paraprofessionals are not a replacement for qualified ML teachers. If a district plans to offer professional development for general education teachers in designing instruction for MLs, then it must be completed in a timely manner.
Use this checklist to assess your school’s staffing support:
- Have we provided qualified, ML-certified staff and sufficient resources (including ML-specific curricular materials) to implement the district’s chosen LIEP effectively?
- Are our paraprofessionals, tutors, and aides used to supplement programming, not just used in lieu of fully qualified ML teachers?
- Are we regularly and adequately evaluating whether ML program teachers have met the necessary training requirements and qualifications and, if need be, are we ensuring that untrained teachers receive the requisite education in a timely manner?
- Do our training requirements adequately prepare ML teachers, general classroom teachers, and administrators to implement the district’s chosen LIEP effectively?
3. Schools must evaluate the effectiveness of a district’s ML program.
- Worland School District is in its fifth year of providing ML services via a bilingual education program model. To be compliant with federal and state laws, Worland evaluates its LIEP’s success by examining MLs’ grades and graduation rates. Last year, it appeared that many MLs’ grades dropped—likely due to complications arising from the pandemic. However, Worland is planning to reexamine MLs’ grades halfway through the school year to see if they have improved. Is this legal?
- No, the district has violated the law because “school districts are required to monitor and compare the academic performance of [ML] students in the program with those who have exited the program over time, relative to that of their never-[ML] peers” (U.S. Dept. of Justice & U.S. Dept. of Education, 2015, p. 37). School districts must use a multitude of data sources (e.g., special education enrollment, suspension rates, extracurricular participation rates) in the evaluation of their chosen LIEP; evaluating an LIEP by MLs’ grades and graduation rates alone is not sufficient to determine efficacy.
Use this checklist to assess your school’s staffing support:
- Are we monitoring and comparing the academic performance of ML students in the LIEP with MLs who have exited the program?
- Are we evaluating ML programs over time using a wide range of data points (e.g., scores on local/state assessments, retention rates, participation rates in gifted and talented)?
- Are we modifying our LIEP in a timely manner if the LIEP is not meeting the goals of helping MLs attain 1) English proficiency and 2) meaningful participation in the standard educational program comparable to their peers?
In closing, it is imperative that school leaders are not only knowledgeable about federal and state laws that protect MLs’ rights to an equitable education but that they can apply these laws to actual situations like the ones we have described. Being legally literate is crucial to avoiding litigation and increasing educational equity.
Emma G. Everson, PhD, is a multilingual learner law and policy consultant with Everson Education. Janet R. Decker, JD, PhD, is an associate professor in the School of Education at Indiana University and dissertation chair of Everson’s study on educators’ legal literacy about ELs.
Castañeda v. Pickard, 781 F.2d 456 (5th Cir. 1986).
Everson, E., & Decker, J. (2022). Increasing teachers’ legal literacy to improve educational equity for English learners. Education Law Reporter, 395, 877-889.
Everson, E. G., & Hedges, S. (2019, March). From law to policy & practice: Lessons learned from a policy discriminating against English learners. Journal of Cases in Educational Leadership, 1-13. doi.org/10.1177%2F1555458919840390
Horne v. Flores, 557 U.S. 433 (2009).
Lau v. Nichols, 414 U.S. 563 (1974).
U.S. Dept. of Justice & U.S. Department of Education. (2015, January 7). Dear Colleague Letter: English learner students and limited English proficient parents. ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf