What Every School Leader Should Know About the Legal Requirements for

English Language LearnersPresented By:

Alphie Paternostro, Supervisor, LindenMaria Romero, Supervisor, Carteret

David Nash, Esq., Director of Legal Education, FEA

Identification and Registration of ELL Students

Parental Rights Program Requirements, Triggers and

Waivers Accountability Addressing Students with Multiple Needs Student Exiting, Reentry, Movement in and

Out of District

ObjectivesParticipants will gain an understanding of legal requirements under state and federal law related to:

U.S. and New Jersey Constitutions Title III State and Federal Anti-Discrimination Laws

◦ (e.g., NJ Law Against Discrimination, Title VI) New Jersey Statute and Code

◦ N.J.S.A. 18A:35-15 to 26◦ N.J.A.C. 6A:15

State and Federal Case Law

Sources of Law

Lau v. Nichols – involved Title VI, Chinese students in San Francisco schools

Plyler v. Doe – Involved questions on citizenship

B.A. and J.H. v. Board of Ed. of Somerville (2009)◦ New Jersey case on student who graduated in another

country, right to education in NJ

OCR settlement – Los Angeles School Dist.◦ Involved disparate impact, lesser percentage of ELL and

African American students in advanced classes, lesser access to best teachers

Key Cases on ELL

First proactive civil rights enforcement action taken by Obama Administration

Addressed disparities in educational opportunities for English Language Learners and African-American students

Critical of underenrollment of ELL students in challenging courses, lack of access to effective teachers

Requires district to develop, implement, monitor plan to strengthen delivery of instruction and increase participation in challenging courses

USDOE Office for Civil Rights

Sends powerful signal that USDOE is not sitting back, waiting for complaints

Indicates OCR not focused solely on purposeful, overt discrimination

Forces ALL school districts to ask difficult questions about current participation of ELL students in all aspects of district’s educational program

Should focus districts on developing plans to improve high end outcomes, NOT just focus on meeting minimum state standards

Potential Impact of OCR Case

What is your district’s current level of participation of ELL students in challenging courses (AP, honors, G & T, college prep)?

What about current involvement in extra-curricular activities, clubs, etc.?

What steps can you take to improve these levels?

Discussion Question

Screening Process - Home Language Survey◦ Must include date of initial entry to U.S.

Use of multiple criteria for determining initial eligibility for services

Identification of Eligible Preschool Students for accountability purposes (linked to student count for Title III funds)

N.J.A.C. 6A:15 – 1.3

Identification

Cannot request information on citizenship - Plyler v. Doe

Cannot request social security number, income tax returns

Cannot demand any single form of proof of residency, must consider any evidence provided

Addressing Students from Other States Addressing Students from Other Countries See N.J.A.C. 6A:22

Registration

Often times process is largely unregulated in local districts

May depend on the whims of the secretary in main office

May indicate inadvertent support for discriminatory practices if left unchecked

Cannot decide student is ineligible simply because student has a diploma from another case. Need case by case analysis – See Somerville case

However, we must honor high school diploma for student from another state in U.S.

Dangers in Current Registration Processes

Must establish bilingual education program when enrollment of LEP student reaches 20 or more in district

ESL program – 10 or more ELL students in district

English Language Services – Between 1 and 9 ELL students enrolled in district

Program Requirements/Triggers

See N.J.A.C. 6A:15-1.5 May request waiver from requirement for

bilingual education program. Must demonstrate would be impractical due

to:◦ Age range◦ Grade span◦ Geographic location

District Waivers

Districts have legal obligation to address special education needs of ELL students

Critical to determine if academic difficulties are related to language proficiency, lack of literacy in native language and/or learning disability

Addressing Students with Multiple Needs

Right to refuse student participation in bilingual program

Right to remove student from bilingual program◦ Need county approval to remove midyear

Right to parental involvement in development and review of program◦ Mandatory parent advisory committee

Right to notifications in native language

Parental Rights

Initial identification as eligible for enrollment◦ Must include notice of right to decline◦ Must be in writing in native language and in

English Notices provided to all other parents

regarding their child’s academic progress and rights regarding student safety and discipline

Notice that student should exit program based on appropriate exit criteria

Parental Notice

Purpose is to help ensure that LEP students attain English proficiency, develop high levels of academic achievement and meet same academic standards as all students are expected to meet

Establishes standards (WIDA), assessments (ACCESS) and accountability requirements (AMAO)

Provides federal funds targeted to◦ Increasing English language proficiency◦ Providing professional development

Title III

Student enrolls in PreK in district Primary language spoken in home is not

English For purposes of accountability under Title III

(Annual Measurable Achievement Objectives) does the student’s time in preK count?

Answer – It Depends If district is receiving Title III funds for

student, then time counts for AMAO

AMAO Issue

See N.J.A.C. 6A:15-1.3(c) Criteria for Exiting

◦ Results of English language proficiency test◦ Assessing the level of reading in English◦ Reviewing previous academic performance of

students◦ Standardized test results in English◦ Input of teaching staff members

Exiting Program

Teen Dating Violence Act New Jersey Anti-Bullying Bill of Rights

◦ Protected characteristics include national origin, ancestry

◦ Catch all other distinguishing characteristics would include English language proficiency

Entitled to Same Protections as all other students