Transcript Slide 1

Using Title III, Part A Monitoring
Reports to Review and Improve
Compliance
Jennifer S. Mauskapf, Esquire
[email protected]
Brustein & Manasevit, PLLC
Spring 2012 Forum
AGENDA
• SASA Monitoring Process Overview
• Review of “Easier-to-Fix” Findings
• The “Harder-to-Fix” Finding
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OVERVIEW OF THE SASA
MONITORING PROCESS
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SASA Monitoring Covers…
• Title I, Part A
• Title I, Part D (Neglected, Delinquent, or At-Risk)
• Title X, Part C (McKinney-Vento Act/Homeless
Program)
• Title III, Part A *
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Prior to Visit
• Desk monitoring of each State
• State contact gathers and analyzes data and information
• Information collected primarily through Web-based searches and
document analysis
• SASA requests specific documentation from SEA
• Selection of LEAs
• Receipt of Agenda and List of ED Participants
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The Visit Itself
• HOW LONG?
• Typically lasts 4 to 5 days
• WHAT WILL ED BE DOING DURING THE VISIT?
• Review documentation not available prior to the trip
• Interview SEA and LEA staff, principals, teachers, parents, and other
stakeholders
• Exit Conference
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Post-Visit
DRAFT comprehensive monitoring report issued
 To be issued within 35 business days of the on-site visit
 SEA has 5 business days to review and provide technical edits and corrections
FINAL report issued
SEA Response
 SEA has 30 business days to respond to any required actions
 SASA sends a letter approving proposed
actions or requiring revision/further action
 May require close collaboration (e.g., CAPs)
and/or follow-up visits
Significant compliance findings can lead
to special conditions
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THE “EASIER-TO-FIX”
FINDINGS
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SEA Monitoring
• Comprehensive Monitoring Protocol
• Whether programs are high-quality, based on scientific research
and effective for LEP students
• Include not only State but also Title III requirements
• Failure to sufficiently monitor SNS
• Follow-up procedures to ensure corrective actions taken to
address compliance issues
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Standards, Assessments,
Accountability
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Professional development on ELP standards
Ensuring all LEP students are assessed
Compliant accountability decisions
Required 2-year and 4-year Improvement Plans
Timely notification of AMAO determinations
Data and accountability for in-state transfer students
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Instructional Support
 Timely Review and Approval of LEA Plans
 Review all LEA plans
 Require LEA plans to be sufficiently detailed
 Immigrant Program
 Correct ‘immigrant’ definition
 LEA plans and notification
 Equitable Services
 Timely and Meaningful Consultation
 LEA maintains control and oversight of program
 Process for identifying eligible private school children
 SEA failure to provide sufficient TA to LEAs
 Compliant Parental Rights Notification
 Compliant AMAO-Failure Notification
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Fiduciary
 Accountability for funds reserved for administration and state-level
activities
 Period of availability of funds to LEAs
 Process for reallocating funds
 Timely application for and allocation of immigrant program subgrants
 Determination of LEAs to receive immigrant program subgrants
 LEA administrative costs cap
 LEA tech. purchases “necessary and reasonable”
 LEA MOE oversight
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THE “HARDER-TO-FIX” FINDING:
Title III SNS Discussion
• Supplement not Supplant Review
• Affirmative Obligations to Serve ELLs
• Other Federal Requirements
• Title VI of the Civil Rights Act of 1964
• ESEA Title I
• State Mandates
• Local Requirements
• SNS Title III Guidance and Findings
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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 nonFederal 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.
2.
3.
Services that the SEA or LEA was required to make available
under other federal, state, or local law;
Services that the SEA or LEA provided with other federal, state,
or local funds in the prior year; or
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
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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Implication Examples
• DOJ settlement agreement with Philadelphia School District
requiring provision of interpretation services and translation
of documents in specific circumstances
• Agreement to Resolve: Between the Los Angeles Unified
School District and ED’s Office for Civil Rights
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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_Agen
cies_with_Supplement.pdf
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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 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 with 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 REGARDING
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
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
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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-Federal 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?
 Requiring SEAs to provide TA & Guidance to LEAs
 Ensure LEA application and review procedures checks for SNS
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RESOURCES
 2011-2012 SASA Monitoring Protocol
http://www2.ed.gov/admins/lead/account/monitoring/indicators1
112.pdf
 Final Interpretations:
http://edocket.access.gpo.gov/2008/pdf/E8-24702.pdf
 Thompson’s Title III Monitoring Reports Site:
http://www.thompson.com/public/nclb/monitoringreports/titleiiimon
reports.html
 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.gwu.edu
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ED Guidance on Title III SNS
 Title III SNS Guidance, October 2008:
http://www.thompson.com/images/thompson/nclb/titleiii/title-iii-sns-oct-22008.pdf
 USDE Title III SNS Webinar, December 2008
http://www.ncela.gwu.edu/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/re
ports09/index.html
 2009-2010:
http://www2.ed.gov/admins/lead/account/monitoring/re
ports10/index.html
 2010-2011:
http://www2.ed.gov/admins/lead/account/monitoring/reports11/index.html
 2011-2012 North Carolina Report:
http://www2.ed.gov/admins/lead/account/monitoring/reports12/ncltrt3.ht
ml
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Questions?
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This presentation is intended solely to provide general
information and does not constitute legal advice or a legal
service. This presentation does not create a client-lawyer
relationship with Brustein & Manasevit, PLLC and, therefore,
carries none of the protections under the D.C. Rules of
Professional Conduct. Attendance at this presentation, a
later review of any printed or electronic materials, or any
follow-up questions or communications arising out of this
presentation with any attorney at Brustein & Manasevit, PLLC
does not create an attorney-client relationship with Brustein
& Manasevit, PLLC. You should not take any action based
upon any information in this presentation without first
consulting legal counsel familiar with your particular
circumstances.
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