Serving English Language Learners with ESEA Title III, Part A Funds

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Serving English Language Learners with ESEA
Title III, Part A Funds

• Jennifer S. Mauskapf, Esq.
• jmauskapf_at_bruman.com
• Brustein Manasevit, PLLC
• Spring Forum 2014

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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 (SNS) Overview
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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
• 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 VIs 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
• "There 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 ELLsCore Language
Program

• 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)

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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 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

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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/lau1
  970.html
• 12/3/85 Memorandum (Reissued 4/6/90)
• http//www.ed.gov/about/offices/list/ocr/docs/lau1
  990_and_1985.html
• 9/27/91 OCR Policy
• http//www.ed.gov/about/offices/list/ocr/docs/lau1
  991.html
• 2/17/11 DOJ Memorandum
• http//www.justice.gov/crt/lep/AG_021711_EO_13166_
  Memo_to_Agencies_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)

• Age 3-21
• Enrolled/preparing to enroll in elementary or
  secondary school
• Not born in US or whose native language is not
  English and
• Has difficulty in speaking, reading, writing or
  understanding English sufficiently so that it can
  deny student the
• 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
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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
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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/equitableserg
  uidance.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

• 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.

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LEA-Required Activities3115(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

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LEA-Permissive Activities3115(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.

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

• Developing and implementing elementary school or
  secondary school language instruction education
  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 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)

• 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.

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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
  States 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

• 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?

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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 States 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
  states 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 Laus 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.p
  df
• Office of Civil Rights ELL Resources
• http//www.ed.gov/about/offices/list/ocr/ellresou
  rces.html
• Office of English Language Acquisition (OELA)
  http//www.ed.gov/about/offices/list/oela/index.ht
  ml
• 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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