Transcript Slide 1

Serving English Language
Learners with ESEA Title
III, Part A Funds
Jennifer S. Mauskapf, Esq.
[email protected]
Brustein & Manasevit, PLLC
Spring 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 Findings
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SUPPLEMENT NOT SUPPLANT
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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)
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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
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AFFIRMATIVE
OBLIGATION TO SERVE
ELLS
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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.
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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."
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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)
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Other Potential Title III SNS Pitfalls – Obligations to Serve
ELLs
• ESEA Title I
• State Requirements
• Local Requirements
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Title VI Requirements
Language 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
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Title VI, Civil Rights Act of 1964
Resources
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_Agencie
s_with_Supplement.pdf
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USE OF TITLE III, PART
A FUNDS
•
•
•
•
Purpose
Allocations
Activities
SNS Guidance
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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
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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; and
4. Has difficulty in speaking, reading, writing or
understanding English sufficiently so that it can deny
student the:
1.
2.
3.
Ability to meet proficient level on state assessments,
Ability to achieve in classroom where language of instruction is English;
or
Opportunity to participate fully in society.
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Allocation of Title III Funds
SEA Grant
Award
At least 95%
used to issue
subgrants
Formula LEP
Subgrants
Up to 5% for
State-level Use
Immigrant
Program
Subgrants
(no more than 15%
of State allotment)
SEA Admin
(Stat. Cap)
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State Level
Activities
SEA Authorized Activities,
§3111(a)(2)
• Professional Development
• Planning, evaluation, administration,
interagency coordination
• Technical Assistance
• Recognition
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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
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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.
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Distribution of Title III Funds at LEA-level
Formula LEP Subgrants
LEA Admin
• Off the top
• Up to 2%
• §3115(b)
Equitable
Services
Required LEA
Activities
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Permissive
LEA Activities
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
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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
services
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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.
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LEA-Required Activities
§3115(c)
 High quality language instruction educational
programs that demonstrate effectiveness by:
 Increasing English proficiency
 Student academic achievement in the core academic
subjects
 High-quality professional development
 Improve instruction and assessment
 Enhance the ability of teachers to understand and use
curricula, assessment measures, and instruction
strategies
 Demonstrate effectiveness of professional
development
 Provide activities ofBRUSTEIN
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intensity
and duration
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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.
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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; and
 To assist parents in helping their children improve their
academic achievement and becoming active participants in
the education of their children.
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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.
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‘EASIER-TO-FIX’ FINDINGS
• Instructional Support
• Fiduciary
• Accountability
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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
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Fiduciary
• LEA administrative costs cap
• LEA tech. purchases “necessary and
reasonable”
• LEA MOE oversight
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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
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TITLE III, PART A
SUPPLEMENT NOT
SUPPLANT
Guidance
Findings
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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.
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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, or
 Enhancing 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
assessments
 Providing “core language instruction educational programs
and services” for LEP students
Any determination about supplanting is VERY fact
specific.
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TITLE III SNS PRACTICAL APPLICATIONS:
ELP Assessment Development & Administration
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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
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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.
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QUESTIONS TO ASK RE: WHETHER TITLE
III FUNDS CAN BE USED WITHOUT
VIOLATING THE SNS REQUIREMENT
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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?
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SASA MONITORING
FINDINGS:
TITLE III SNS
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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
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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)
classes
 Chairs for State mandated SEI classes
 Classes required for graduation for ELL students
unable to take these courses due to the
requirement to enroll in State mandated SEI
classes
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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
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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?
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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 Resources
http://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
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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/reports10/index.html
 2010-2011:
http://www2.ed.gov/admins/lead/account/monitoring/reports11/index.html
 2011-2012 :
http://www2.ed.gov/admins/lead/account/monitoring/reports12/index.html
 2012-2013:
http://www2.ed.gov/admins/lead/account/monitoring/reports13/index.html
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Questions?
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