U.S. Department of Education Office for Civil Rights (OCR)

1. U.S. Department of EducationOffice for Civil Rights (OCR) Title VI, Section 504, Title II – Special Education and Limited English Proficient Students in Public Schools

2. Key Sources of Federal Law • Title VI of the Civil Rights Act of 1964 • OCR Policy • Section 504 of the Rehabilitation Act of 1973 • Title II of the Americans with Disabilities Act of 1990

3. Title VI of the Civil Rights Act of 1964 • No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (42 U.S.C. Section 2000d) • The regulation for Title VI is found at 34 C.F.R. Part 100.

4. OCR Policy OCR policy on LEP students is reflected in the following documents: • May 25, 1970 Memorandum • Policy Regarding the Treatment of National Origin Minority Students Who Are Limited English Proficient (April 6, 1990, reissuing the December 3, 1985 Title VI Language Minority Compliance Procedures) • Policy Update on Schools’ Obligations Toward National Origin Minority Students With Limited English Proficiency (September 27, 1991)

5. OCR1970MEMORANDUM • Requires school districts to take affirmative steps to rectify language deficiencies in order to open its instructional program to national origin minority group students, where inability to speak and understand English excludes the students from effective participation in the district’s educational program. • Prohibits school districts from assigning ELL students to special education classes on criteria which essentially measure or evaluate English language skills.

6. Exiting ELL Students A school district must provide ELL Students services until they are proficient in the four domains of English to participate meaningfully in the regular education program. • Exit criteria should include objective standards, such as standardized test scores. • Students should continue to receive services until they can read, write, speak, and comprehend English well enough to participate meaningfully in the district’s program. • District may need to remedy academic deficits incurred while learning English.

7. SPEDLEP Schools may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills.

8. Section 504 and Title II • Section 504 prohibits discrimination on the basis of disability by schools that receive Federal financial assistance • Title II prohibits discrimination against people with disabilities by public schools (including public vocational schools and public charter schools)

9. Section 504: Elementary and Secondary Schools • Requires a free appropriate public education for qualified students with disabilities • Establishes procedures designed to protect against erroneous determinations of disability. • Instructs that qualified students with a disability should be educated with non-disabled students to the maximum extent appropriate to the needs of the student with a disability

10. Section 504 establishes evaluation procedures that are designed to ensure children are not: • misclassified; • unnecessarily labeled as having a disability; • or incorrectly placed • based on inappropriate selection, administration, or interpretation of evaluation materials.

11. SPEDLEP Specific compliance concerns include: • LEP students being inappropriately placed in special education programs. • Special education program provided for LEP students not addressing the students’ English language development needs. • Schools having policies of “no double services,” i.e. refusing to provide both alternative language services and special education to students who need them.

12. Purpose of an Evaluation for special education services The evaluation is intended to answer two questions: (1) Does the child have a disability under Section 504/Title II? If so: (2) What are the child’s individual education needs?

13. PLACEMENT

14. Question: What are the child’s individual education needs? Needs are identified by looking to a variety of evaluation sources, including: • aptitude and achievement tests • teacher recommendations – include someone knowledgeable about second language acquisition • physical condition • social or cultural background – including language background • See 34 C.F.R. § 104.35 (c)

15. Who Decides? The “team” -- a group that includes persons knowledgeable about: the student the meaning of the evaluation data the placement options for LEP students, person knowledgeable about second language acquisition 15

16. Placement Procedures The Team carefully considers: evaluation information from a variety of sources all significant factors affecting the student’s ability to receive a FAPE 16

17. Summary • District ensures that ELL students are not inappropriately placed in special education services because of their inability to speak and understand English. • Districts should not misidentify ELL students as students with disabilities because of their inability to speak and understand English. • District should ensure that evaluations accurately reflect a student’s special education needs rather than lack of English language skills. • ELL students with disabilities should receive special education or related services in accordance with their individual needs.

18. OCRINTERNET RESOURCES • Home page:www.ed.gov/ocr/ • ELL Resources:www.ed.gov/ocr/ellresources.html • Programs for English Language Learners: Resource Materials for Planning and Self-Assessments (“ELL Guide”)www.ed.gov/ocr/ell/