Using Title III, Part A Monitoring Reports to Review and Improve Compliance Jennifer S. Mauskapf, Esquire jmauskapf@bruman.com Brustein & Manasevit, PLLC Spring 2012 Forum

AGENDA SASA Monitoring Process Overview Review of “Easier-to-Fix” Findings The “Harder-to-Fix” Finding

Overview of the SASA Monitoring Process

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 *

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

The Visit Itself HOW LONG? WHAT WILL ED BE DOING DURING THE VISIT? 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

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

The “Easier-to-Fix” Findings

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

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

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

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

The “Harder-to-Fix” Finding: Supplement not Supplant (SNS)

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

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)

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

Affirmative Obligation to Serve ELLs

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

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."

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)

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

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_Agencies_with_Supplement.pdf

Other Potential Title III SNS Pitfalls – Obligations to Serve ELLs ESEA Title I State Requirements Local Requirements

Title III, Part A Supplement Not Supplant Guidance Findings

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.

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.

Title III SNS Practical Applications: ELP Assessment Development & Administration

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

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.

Questions to Ask Regarding Whether Title III Funds Can be Used Without Violating the SNS Requirement

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?

SASA Monitoring Findings: Title III SNS

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

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

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

RESOURCES http://edocket.access.gpo.gov/2008/pdf/E8-24702.pdf 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.pdf Thompson’s Title III Monitoring Reports Site: http://www.thompson.com/public/nclb/monitoringreports/titleiiimonreports.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

ED Guidance on Title III SNS Title III SNS Guidance, October 2008: http://www.thompson.com/images/thompson/nclb/titleiii/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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