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

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

3. Overview of the SASA Monitoring Process

4. 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 *

5. 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

6. 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

7. 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

8. The “Easier-to-Fix” Findings

9. 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

10. 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

11. 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

12. 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

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

14. 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

15. 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)

16. 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

17. Affirmative Obligation to Serve ELLs

18. 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

19. 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."

20. 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)

21. 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

22. 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
12/3/85 Memorandum (Reissued 4/6/90)
9/27/91 OCR Policy
2/17/11 DOJ Memorandum

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

24. Title III, Part A Supplement Not Supplant
Guidance
Findings

25. 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.

26. 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.

27. Title III SNS Practical Applications:
ELP Assessment Development & Administration

28. 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

29. 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.

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

31. 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?

32. SASA Monitoring Findings: Title III SNS

33. 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

34. 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

35. 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

36. RESOURCES http://edocket.access.gpo.gov/2008/pdf/E8-24702.pdf
SASA Monitoring Protocol
Final Interpretations:
Thompson’s Title III Monitoring Reports Site:
Office of Civil Rights ELL Resources:
Office of English Language Acquisition (OELA):
National Clearinghouse for English Language Acquisition and Language Instruction Educational Programs:

37. ED Guidance on Title III SNS
Title III SNS Guidance, October 2008:
USDE Title III SNS Webinar, December
Follow-up to questions raised at the LEP Partnership Meeting
SASA Monitoring Findings : : :
North Carolina Report:

38. Questions?

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