Jennifer S. Mauskapf, Esq. bruman jmauskapf@bruman Michigan Department of Education

1. Serving English Language Learners With ESEA Title III Funds: Spotlight on Ensuring Compliance With “Supplement not Supplant” Jennifer S. Mauskapf, Esq. www.bruman.com jmauskapf@bruman.com Michigan Department of Education September 20, 2010

2. AGENDA • TIII Supplement not Supplant Provision • Affirmative Obligations to Serve ELLs • Other Federal Requirements • Title VI of the Civil Rights Act of 1964, OCR guidance, Federal Court Decisions • ESEA Title I • State Mandates • Local Requirements • ESEA Title III Use of Funds • Allocations • SEA/LEA ELL Activities • SNS Title III Guidance and Findings

3. Title III Supplement not Supplant OverviewESEA §3115(g)

4. 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 T3 funds are in addition to, and do not replace or supplant, services that students would otherwise receive.

5. 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… • 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

6. Affirmative Obligation to Serve ELLs[…REGARDLESS of TITLE III!!]

7. 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 (SDTX) (1981) • Key OCR Guidance: • 3/25/70 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

8. 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. • School districts receiving federal financial assistance may not, on the basis of race, color, or national origin: • provide services, financial aid, or other benefits that are different or provide them in a different manner; • restrict an individual's enjoyment of an advantage or privilege enjoyed by others; deny an individual the right to participate in federally assisted programs; or • defeat or substantially impair the objectives of federally assisted programs.

9. 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.

10. 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.”

11. OCR 1970 Memorandum (cont.) • Title VI is violated if: • Students are excluded from effective participation in school because of their inability to speak and understand the language of instruction; • National-origin minority students are mis-assigned for special education because of their lack of English skills; • Programs for students whose English is less than proficient are not designed to teach them English as soon as possible, or if these programs operate as a dead-end track; or • Parents whose English is limited do not receive school notices and other information in a language they can understand.

12. Lau v. Nichols • FACTS: Chinese-American LEP students in San Francisco claimed that the failure to be provided English language instruction violated Title VI as educational discrimination on the basis of national origin. • DECISION: • Failure to provide English language instruction denied students of a meaningful opportunity to participate in the public educational program. • Upheld OCR’s 1970 Memorandum "[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."

13. Castaneda v. Pickard • FACTS: • Mexican-American students alleged district violated Title VI because of use of a segregated, ability grouping system for classrooms. Further claimed district failed to establish sufficient bilingual education programs. • HOLDING: • Established three-part test for determining how bilingual education programs would be held responsible for meeting Title VI requirements.

14. Title VI Requirements for ELLs • Federal law requires programs that educate children with LEP to be: • Based on a sound educational theory; • Adequately supported, with adequate and effective staff and resources, so that the program has a realistic chance of success; and • Periodically evaluated and, if necessary, revised. (Castaneda v. Pickard 3-part test)

15. Further OCR Guidance • 12/3/85: Title VI Language Minority Compliance Procedures • Outlines OCR policy with regard to the education of language-minority students and Title VI compliance standards. • 9/27/91: Policy Update on Schools' Obligations Toward National Origin Minority Students with Limited-English Proficiency

16. Title VI Requirements, cont. • ELL students must be provided with alternative services until they are proficient enough in English to participate meaningfully in the regular program. • To determine whether a child is ready to exit, a district must consider such factors as the students' ability to keep up with their non-ELL peers in the regular education program and their ability to participate successfully without the use of adapted or simplified English materials. • Exit criteria must include some objective measure of a student's ability to read, write, speak and comprehend English.

17. Use of Title III, Part A Funds Purpose Allocations Activities Supplement not Supplant Guidance

18. 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

19. Allocation of Title III Funds

20. SEA Authorized Activities, §3111(a)(2) • Professional Development • Planning, evaluation, administration, interagency coordination • Technical Assistance • Recognition

21. Distribution of Title III Funds at LEA-level (LEA Subgrants)

22. 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)

23. 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

24. Eligibility for Services • Enrolled in nonprofit private school located in LEA • 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.

25. Services are Equitable when the LEA… • Spends an equal amount of funds to serve similar public and private school students • Provides services and benefits that are equitable in comparison to the services and benefits provided to public school students • Addresses the specific needs and educational programs on public and private school students on a comparable basis • Provides, in the aggregate, approximately the same amount of services • Provides equal opportunities to participate • Provides services that meet private school’s specific needs

26. Equal Expenditure Guidelines • Many LEAs calculate equal expenditures strictly on the basis of the relative enrollments of public and private school students • This is not required! • Assumes the numbers accurately reflect the relative needs of students and teachers in public and private schools. • LEAs may use other factors relating to need! • Both the number and the educational needs of the public and private school students must be taken into account.

27. Equitable Services Carryover If the LEA does not use all funds designated for service to private school students, how is money treated?  IT DEPENDS. • If LEA provided equitable services in first year… •  then carryover funds revert to regular program pot. • If LEA did not provide equitable services, •  then must earmark funds for services to private school students in the carryover year. •  Use in Year 2, in addition to entire amount of new allocation. • EITHER WAY: Funds remain in control of LEA.

28. 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 of sufficient intensity and duration

29. LEA-Permissive Activities§3115(d) To achieve Title III purposes by: • Upgrading program objectives and effective instruction strategies; • Improving the instruction program for LEP children by identifying, acquiring, and upgrading curricula, instruction materials, educational software, and assessment procedures; • Providing— • Tutorials and academic or vocational education for LEP children; and • Intensified instruction;

30. LEA-Permissive Activities (cont.)§3115(d) • Developing and implementing elem. school or secondary school language instruction educ. Programs that are coordinated with other relevant programs and services; • Improving the English proficiency and academic achievement of LEP children; • Providing community participation programs, family literary services, and parent outreach and training activities to LEP children and their families— • To improve Eng. Lang. skills of LEP children; and • To assist parents in helping their children to improve their academic achievement and becoming active participants in the education of their children.

31. LEA-Permissive Activities (cont.)§3115(d) • 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. • Carrying other activities that are consistent with the purposes of this section.

32. Immigrant Children and Youth • “Shall reserve not less than 15%” of SEA allotment for subgrants to serve ‘eligible entities’ that have ‘significant increase’ in immigrant children compared to average of 2 preceeding FYs. • Immigrant Children and Youth (ICY) defined: • Aged 3-21; • Not born in any State; 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.

33. Immigrant Children and YouthStatutory Examples of Permissive Activities • Family literacy, parent outreach, and training activities designed to assist parents to become active participants in the education of their children; • Support for personnel, including teacher aides who have been specifically trained, or are being trained to provide services to ICY; • Provision of tutorials, mentoring, and academic or career counseling for ICY; • Identification and acquisition of curricular materials, educational software, and technologies to be used in the program carried out with funds;

34. Immigrant Children and YouthStatutory Examples of Permissive Activities (cont.) • Basic instruction services that are directly attributable to the presence in ICY in the school district, including the payment of costs of providing addt’l classroom supplies, costs of transportation, or such other costs as are directly attributable to such addt’l basic instruction services; • Other instruction services that are designed to assist ICY to achieve in elem and secondary schools in the US, such as programs of introduction to the educational system and civics education; and • Activities, coordinated with community-based orgs, institutions of higher ed, private sector entities, or other entities with expertise in working with immigrants to assist parents of ICY by offering comprehensive community services.

35. Title III Supplement Not Supplant Guidance Findings

36. USDE Guidance on T3 SNS • Title III SNS Guidance, Oct. 2008: http://www.thompson.com/images/thompson/nclb/titleiii/title-iii-sns-oct-2-2008.pdf • USDE Title III SNS Webinar, Dec. 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/reports09/index.html • 2009-2010: http://www2.ed.gov/admins/lead/account/monitoring/reports10/index.html

37. 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 T3 funds are in addition to, and do not replace or supplant, services that students would otherwise receive.

38. USDE Supplanting Interpretation • TIII funds unallowable for: • Developing and/or administering T1 ELP assessment • NOTE: State may use TIII State Activities funds for: • Developing an ELP assessment separate from ELP assessment required under TI, or • Enhancing an existing ELP assessment required under TI in order to align it with the State’s ELP standards under TIII • 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.

39. ELP Assessment Development & Administration T3SNS Practical Applications:

40. 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 ifconsolidated with other ESEA admin • Section 6111 funds • Section 6112 funds

41. 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.

42. Questions to Ask When Considering Whether Title III Funds Can be Used Without Violating the SNS Requirement

43. From USDE T3 SNS Webinar: • What is the instructional program/service provided to all students? • What does the LEA do to meet Lau requirements? • What services is the LEA required by other Federal, State, and local laws or regulations to provide? • 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?

44. SASA Monitoring Findings: T3 SNS

45. 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 ESOL 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.

46. SNS Violations – State Mandate Findings • District positions required under State law • State required training • Costs related to students attending State mandated 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 • LEA unable to prove it was not using Title III funds to meet State translation requirement • Where State required summer program for group of students, T3 funds used for summer program dedicated for such LEP students

47. SNS Violations – Other General Findings • To provide core language instruction • Salaries of teachers who provide core services for LEP students • Unclear how costs were supplementary • Secondary ESOL teachers who have the same duties and responsibilities –some salaries paid with State and local funds, others with Title III. • 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?

48. Resources Final Interpretations: http://edocket.access.gpo.gov/2008/pdf/E8-24702.pdf Title III SNS Guidance: http://www.thompson.com/images/thompson/nclb/titleiii/title-iii-sns-oct-2-2008.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.gwu.edu

49. Questions???

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