Using Title III, Part A Monitoring Reports to Review and Improve Compliance

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Using Title III, Part A Monitoring Reports
to Review and Improve Compliance

• Jennifer S. Mauskapf, Esquire
• jmauskapf_at_bruman.com
• Brustein Manasevit, PLLC
• Spring 2012 Forum

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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

• 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 FindingSupplement
not Supplant (SNS)
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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 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 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)

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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 EDs Office for Civil
  Rights

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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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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
  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 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

• 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
• 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
  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?
• 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/
  indicators1112.pdf
• Final Interpretations
• http//edocket.access.gpo.gov/2008/pdf/E8-24702.p
  df
• Thompsons Title III Monitoring Reports Site
  http//www.thompson.com/public/nclb/monitoringrepo
  rts/titleiiimonreports.html
• 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.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/title
  iii/title-iii-sns-oct-2-2008.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/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 North Carolina Report
  http//www2.ed.gov/admins/lead/account/monitoring/
  reports12/ncltrt3.html

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Questions?
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