Serving English Language Learners with ESEA Title III, Part A Funds Jennifer S. Mauskapf, Esq. [email protected] Brustein & Manasevit, PLLC Spring Forum

Serving English Language Learners with ESEA Title

III, Part A Funds

Jennifer S. Mauskapf, [email protected]

Brustein & Manasevit, PLLCSpring Forum 2014

AGENDA

• Supplement not Supplant Overview

• Affirmative Obligations to Serve ELLs – Other Federal Requirements

• Title VI of the Civil Rights Act of 1964• ESEA Title I

– State Mandates– Local Requirements

• ESEA Title III Use of Funds– Allocations– SEA/LEA Activities– ‘Easier-to-Fix’ Findings

• SNS Title III Guidance and FindingsBRUSTEIN & MANASEVIT, PLLC

SUPPLEMENT NOT SUPPLANT (SNS) OVERVIEW

BRUSTEIN & MANASEVIT, PLLC

SUPPLEMENT NOT SUPPLANT PROVISIONS

Title I, Part A…to supplement the funds that would, in the absence of such Federal funds, be made available from non-Federal sources for the education of pupils participating in programs assisted under this part, and not to supplant such funds.

ESEA §1120A(b)(1)

Title III, Part A…to supplement the level of Federal, State, and local public funds that, in the absence of such availability, would have been expended for programs for Limited English Proficient (LEP) children and immigrant children and youth and in no case to supplant such Federal, State, and local public funds.

ESEA §3115(g)


Presumption of “Supplanting”

An auditor will presume that the SEA or LEA violated the SNS requirement when the SEA or LEA uses Title III funds to provide…

1. Services that the SEA or LEA was required to make available under other federal, state, or local law;

2. Services that the SEA or LEA provided with other federal, state, or local funds in the prior year; or

3. The same services to Title III students as it provided to non-Title III students with non-Title III funds.

Source: See OMB Circular A-133 Compliance Supplement


AFFIRMATIVE OBLIGATION TO SERVE ELLS


Title VI’s General Prohibition Prohibits discrimination on the basis of race,

color, or national origin in programs and activities that receive federal financial assistance.

Title VI Interpretation – ELLs:Prohibits denial of equal access to education

because of a student's limited proficiency in English.

Protects students who are so limited in their English language skills that they are unable to participate in or benefit from regular or special education instructional programs.


OCR 1970 Memorandum: Identification of Discrimination and Denial of Services on

the Basis of National Origin

“Where the inability to speak and understand the English language excludes national origin minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.”

Upheld in Lau v. Nichols"[T]here is no equality of treatment merely by

providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education."


Title VI Requirements for ELLs“Core Language Program”

Federal law requires programs that educate children with LEP to be:

1. Based on a sound educational theory;

2. Adequately supported, with adequate and effective staff and resources, so that the program has a realistic chance of success; and

3. Periodically evaluated and, if necessary, revised.

(Castaneda v. Pickard 3-part test)


Other Potential Title III SNS Pitfalls – Obligations to Serve ELLs

• ESEA Title I

• State Requirements

• Local Requirements


Title VI RequirementsLanguage Access

• May arise in many contexts• Recent OCR Agreements re: Parental

Communications:– Tulsa Public Schools (OK), 1/22/13 – DeKalb Co. School District (GA), 6/27/13

• Discipline-related– DOJ settlement agreement with Philadelphia School

District requiring provision of interpretation services and translation of documents in specific circumstances


Title VI, Civil Rights Act of 1964Resources

Key Federal Court Cases: Lau v. Nichols, 414 U.S. 563 (1974) Castaneda v. Pickard, 648 F.2d 989 (5th Cir., 1981)

Key OCR Guidance: 5/25/70 Memorandum

http://www.ed.gov/about/offices/list/ocr/docs/lau1970.html 12/3/85 Memorandum (Reissued 4/6/90)

http://www.ed.gov/about/offices/list/ocr/docs/lau1990_and_1985.html 9/27/91 OCR Policy

http://www.ed.gov/about/offices/list/ocr/docs/lau1991.html 2/17/11 DOJ Memorandum

http://www.justice.gov/crt/lep/AG_021711_EO_13166_Memo_to_Agencies_with_Supplement.pdf


USE OF TITLE III, PART A FUNDS


• Purpose• Allocations• Activities• SNS Guidance

Purposes of Title III (§ 3101)

• To ensure that Limited English Proficient (LEP) and immigrant students:– Attain English proficiency– Develop high levels of academic attainment in

English– Meet the same challenging State academic

content and student achievement standards as all students


Definition: Limited Eng. Proficient (LEP) (§ 9101)

1. Age 3-21;2. Enrolled/preparing to enroll in elementary or

secondary school;3. Not born in US or whose native language is not

English; and4. Has difficulty in speaking, reading, writing or

understanding English sufficiently so that it can deny student the:

1. Ability to meet proficient level on state assessments,2. Ability to achieve in classroom where language of instruction is

English; or3. Opportunity to participate fully in society.


Allocation of Title III Funds


SEA Authorized Activities, §3111(a)(2)

• Professional Development• Planning, evaluation, administration,

interagency coordination• Technical Assistance• Recognition


Immigrant Children and Youth

• “Shall reserve no more than 15%” of SEA allotment to serve ‘eligible entities’ that have ‘significant increase’ in immigrant children compared to the average of the 2 preceding FYs.

• Immigrant Children and Youth (ICY) defined:– Ages 3-21;– Not born in any State (including DC and PR); and,– Have not been attending school(s) in any State(s) for more than 3 full

academic years

• Sec. 3115(e). Activities by Agencies Experiencing Substantial Increases in ICY– Funds received under 3114(d) shall be used for activities that provide

‘enhanced instructional opportunities for immigrant children and youth’ – Lists specific permissive activities


Immigrant Children and Youth (ICY)Statutory Examples of Permissive Activities, § 3115(e)(1)

• Family literacy, parent outreach, and training activities designed to assist parents to become active participants in the education of their children;

• Provision of tutorials, mentoring, and academic or career counseling for ICY;

• Other instruction services that are designed to assist ICY to achieve in elementary and secondary schools in the US, such as programs of introduction to the educational system and civics education; and

• Activities, coordinated with community-based organizations, institutions of higher education, private sector entities, or other entities with expertise in working with immigrants to assist parents of ICY by offering comprehensive community services.


Distribution of Title III Funds at LEA-level Formula LEP Subgrants


Title III Equitable Services

After timely and meaningful consultation with appropriate private school officials, LEAs receiving Title III funds must provide educational services to LEP children and educational personnel in private schools that are located in the geographic area served by the LEA.

(§ 9501)Title IX Equitable Services Guidance (March 2009):

www2.ed.gov/policy/elsec/guid/equitableserguidance.doc BRUSTEIN & MANASEVIT, PLLC

Title III & LEP Students in Private Schools

• To ensure timely and meaningful consultation, the LEA must consult with private school officials on issues such as:– How LEP students’ needs will be identified– What services will be offered– How, where, and by whom the services will be provided– How the services will be assessed and how the results of the

assessment will be used to improve those services– The size and scope of services– Amount of funds available for services– How and when the LEA will make decisions about the delivery of

servicesBRUSTEIN & MANASEVIT, PLLC

Eligibility for Services

1. Enrolled in nonprofit private school located in LEA

2. Meet specific eligibility/participation criteria of given program

Note: Residence is NOT a factor. If State law considers home schooled students

to be private school students, they are eligible.


LEA-Required Activities§3115(c)

High quality language instruction educational programs that demonstrate effectiveness by:

Increasing English proficiencyStudent academic achievement in the core academic

subjects High-quality professional developmentImprove instruction and assessmentEnhance the ability of teachers to understand and use

curricula, assessment measures, and instruction strategies

Demonstrate effectiveness of professional development

Provide activities of sufficient intensity and durationBRUSTEIN & MANASEVIT, PLLC

LEA-Permissive Activities§3115(d)

To achieve Title III purposes by…

1.Upgrading program objectives and effective instruction strategies;

2.Improving the instruction program for LEP children by identifying, acquiring, and upgrading curricula, instruction materials, educational software, and assessment procedures;

3.Providing—Tutorials and academic or vocational education for LEP

children; and Intensified instruction.BRUSTEIN & MANASEVIT, PLLC

LEA-Permissive Activities (cont.)§3115(d)

4. Developing and implementing elementary school or secondary school language instruction education programs that are coordinated with other relevant programs and services;

5. Improving the English proficiency and academic achievement of LEP children;

6. Providing community participation programs, family literary services, and parent outreach and training activities to LEP children and their families—

To improve English language skills of LEP children; andTo assist parents in helping their children improve their

academic achievement and becoming active participants in the education of their children.


LEA-Permissive Activities (cont.)§3115(d)

7. Improving the instruction of LEP children by providing for— The acquisition or development of educational

technology or instructional materials; Access to, and participation in, electronic networks for

materials, training, and communication; and Incorporation of the resources described above into

curricula and programs, such as those funded under Title III-Part A.

8. Carrying other activities that are consistent with the purposes of this section.


‘EASIER-TO-FIX’ FINDINGS

• Instructional Support• Fiduciary• Accountability


Instructional Support

• Equitable Services– Timely and Meaningful Consultation– LEA maintains control and oversight of program– Process for identifying eligible private school

children– Imposing administratively burdensome

requirements not authorized by law

• Compliant Parental Rights Notification• Compliant AMAO-Failure Notification


Fiduciary

• LEA administrative costs cap• LEA tech. purchases “necessary and

reasonable” • LEA MOE oversight


Common Accountability Findings

• Ensuring all LEP students are assessed• Required 2-year and 4-year Improvement

Plans• Timely and Compliant Notifications Required– Parental Rights Notification– Notification of AMAO determinations


TITLE III, PART A SUPPLEMENT NOT SUPPLANT

GuidanceFindings


Title III SNS Provision, §3115(g)

Federal funds made available under this subpart shall be used so as to supplement the level of Federal, State, and local public funds that, in the absence of such availability, would have been expended for programs for LEP children and immigrant children and youth and in no case to supplant such Federal, State, and local public funds.

INTENT: To ensure services provided with Tier III funds are in addition to, and do not replace or supplant, services that students would otherwise receive.


USDE Supplanting Interpretation

Title III funds unallowable for:Developing and/or administering Title I ELP assessment

NOTE: State may use Title III State Activities funds for:Developing an ELP assessment separate from ELP assessment

required under Title I, orEnhancing an existing ELP assessment required under Title I in order

to align it with the State’s ELP standards under Title III.Developing and/or administering screening or placement

assessmentsProviding “core language instruction educational programs

and services” for LEP students

Any determination about supplanting is VERY fact specific.


TITLE III SNS PRACTICAL APPLICATIONS:

ELP Assessment Development & Administration


Use of ESEA Funds to Develop State ELP Assessments

An SEA may use the following funds:

– Title I State Administrative funds• Regardless of consolidation w/other ESEA State admin

– Title III State Administrative funds if consolidated with other ESEA admin

– Section 6111 funds– Section 6112 funds


Use of ESEA Funds to Administer State ELP Assessments

• Title I and Title III funds may not be used to administer ELP assessments.

• An SEA may use Section 6111 funds to administer State ELP assessments.


QUESTIONS TO ASK RE: WHETHER TITLE III FUNDS CAN BE USED WITHOUT

VIOLATING THE SNS REQUIREMENT


From USDE Title III SNS Webinar:

1. What is the instructional program/service provided to all students?

2. What does the LEA do to meet Lau requirements?3. What services is the LEA required by other

Federal, State, and local laws or regulations to provide?

4. Was the program/service previously provided with State, local, and Federal funds?Based on the answers to the above questions, would the proposed funds be used to provide an instructional program/service that is in addition to or supplemental to an instructional program/service that would otherwise be provided to LEP students in the absence of a Title III grant?


SASA MONITORING FINDINGS: TITLE III SNS


SNS Violations – Assessment Findings

Initial assessment to identify and place LEP students (including screeners, LAS links)

Salaries of personnel who perform duties associated with administration of the annual ELP assessment Teacher substitutes to enable ESL teachers to administer

the State’s annual ELP assessment ESL Instructional Coach / Tutor whose responsibilities

included assistance in administering the State ELP assessment

Staff, related costs, for training on administering the proficiency assessments


SNS Violations – State Mandate Findings

District positions required under State law State required training Costs related to students attending State

mandated Structured English Immersion (SEI) classesChairs for State mandated SEI classesClasses required for graduation for ELL students

unable to take these courses due to the requirement to enroll in State mandated SEI classes


SNS Violations – State Mandate Findings (cont.)

State mandated analysis of an ELL pilot program

Translations otherwise required Where State required summer program for

group of students, Title III funds used for summer program dedicated for such LEP students

SEA ‘match’ requirement triggered supplanting issue


SNS Violations – Other General Findings

To provide core language instruction Salaries of teachers (and others) who provide core services for LEP students

Books not documented as supplemental expenditures Positions not Supplemental

Secondary ESL teachers who have the same duties and responsibilities – some paid with non-Fed funds, Title III

Fed. Funded Title III State Dir. also manages state’s bilingual ed. program Activities specified in a Title VI corrective action plan approved by OCR Report required LEA to explain how activity was supplemental

Would LEA have to provide those services in the absence of Title III funds? How would activities paid for with Title III funds go beyond Lau’s equal access

obligation?


RESOURCES 2011-2012 SASA Monitoring Protocol

http://www2.ed.gov/admins/lead/account/monitoring/indicators1112.pdf

Final Interpretations http://edocket.access.gpo.gov/2008/pdf/E8-24702.pdf

Office of Civil Rights ELL Resourceshttp://www.ed.gov/about/offices/list/ocr/ellresources.html

Office of English Language Acquisition (OELA) http://www.ed.gov/about/offices/list/oela/index.html

National Clearinghouse for English Language Acquisition and Language Instruction Educational Programs http://www.ncela.us


ED Guidance on Title III SNS

USDE Title III SNS Webinar, Dec. 2008 http://www.ncela.us/webinars/event/6/ Follow-up to questions raised at the LEP Partnership Meeting

SASA Monitoring Findings 2008-2009:

http://www2.ed.gov/admins/lead/account/monitoring/reports09/index.html 2009-2010:


http://www2.ed.gov/admins/lead/account/monitoring/reports11/index.html 2011-2012 :


http://www2.ed.gov/admins/lead/account/monitoring/reports13/index.html


Questions?


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consulting legal counsel familiar with your particular circumstances.


Documents

Serving English Language Learners with ESEA Title III, Part A Funds Jennifer S. Mauskapf, Esq. [email protected] Brustein & Manasevit, PLLC Spring Forum