1. What Every School Leader Should Know About the Legal Requirements for English Language Learners
Presented By:
Alphie Paternostro, Supervisor, Linden
Maria Romero, Supervisor, Carteret
David Nash, Esq., Director of Legal Education, FEA

2. Objectives Participants will gain an understanding of legal requirements under state and federal law related to:
Identification and Registration of ELL Students
Parental Rights
Program Requirements, Triggers and Waivers
Accountability
Addressing Students with Multiple Needs
Student Exiting, Reentry, Movement in and Out of District

3. Sources of Law U.S. and New Jersey Constitutions Title III
State and Federal Anti-Discrimination Laws
(e.g., NJ Law Against Discrimination, Title VI)
New Jersey Statute and Code
N.J.S.A. 18A:35-15 to 26
N.J.A.C. 6A:15
State and Federal Case Law

4. Key Cases on ELL
Lau v. Nichols – involved Title VI, Chinese students in San Francisco schools
Plyler v. Doe – Involved questions on citizenship
B.A. and J.H. v. Board of Ed. of Somerville (2009)
New Jersey case on student who graduated in another country, right to education in NJ
OCR settlement – Los Angeles School Dist.
Involved disparate impact, lesser percentage of ELL and African American students in advanced classes, lesser access to best teachers

5. USDOE Office for Civil Rights
First proactive civil rights enforcement action taken by Obama Administration
Addressed disparities in educational opportunities for English Language Learners and African-American students
Critical of underenrollment of ELL students in challenging courses, lack of access to effective teachers
Requires district to develop, implement, monitor plan to strengthen delivery of instruction and increase participation in challenging courses

6. Potential Impact of OCR Case
Sends powerful signal that USDOE is not sitting back, waiting for complaints
Indicates OCR not focused solely on purposeful, overt discrimination
Forces ALL school districts to ask difficult questions about current participation of ELL students in all aspects of district’s educational program
Should focus districts on developing plans to improve high end outcomes, NOT just focus on meeting minimum state standards

7. Discussion Question
What is your district’s current level of participation of ELL students in challenging courses (AP, honors, G & T, college prep)?
What about current involvement in extra- curricular activities, clubs, etc.?
What steps can you take to improve these levels?

8. Identification Screening Process - Home Language Survey
Must include date of initial entry to U.S.
Use of multiple criteria for determining initial eligibility for services
Identification of Eligible Preschool Students for accountability purposes (linked to student count for Title III funds)
N.J.A.C. 6A:15 – 1.3

9. Registration Cannot request information on citizenship - Plyler v. Doe
Cannot request social security number, income tax returns
Cannot demand any single form of proof of residency, must consider any evidence provided
Addressing Students from Other States
Addressing Students from Other Countries
See N.J.A.C. 6A:22

10. Dangers in Current Registration Processes
Often times process is largely unregulated in local districts
May depend on the whims of the secretary in main office
May indicate inadvertent support for discriminatory practices if left unchecked
Cannot decide student is ineligible simply because student has a diploma from another case. Need case by case analysis – See Somerville case
However, we must honor high school diploma for student from another state in U.S.

11. Program Requirements/Triggers
Must establish bilingual education program when enrollment of LEP student reaches 20 or more in district
ESL program – 10 or more ELL students in district
English Language Services – Between 1 and 9 ELL students enrolled in district

12. District Waivers See N.J.A.C. 6A:15-1.5
May request waiver from requirement for bilingual education program.
Must demonstrate would be impractical due to:
Age range
Grade span
Geographic location

13. Addressing Students with Multiple Needs
Districts have legal obligation to address special education needs of ELL students
Critical to determine if academic difficulties are related to language proficiency, lack of literacy in native language and/or learning disability

14. Parental Rights
Right to refuse student participation in bilingual program
Right to remove student from bilingual program
Need county approval to remove midyear
Right to parental involvement in development and review of program
Mandatory parent advisory committee
Right to notifications in native language

15. Parental Notice Initial identification as eligible for enrollment
Must include notice of right to decline
Must be in writing in native language and in English
Notices provided to all other parents regarding their child’s academic progress and rights regarding student safety and discipline
Notice that student should exit program based on appropriate exit criteria

16. Title III
Purpose is to help ensure that LEP students attain English proficiency, develop high levels of academic achievement and meet same academic standards as all students are expected to meet
Establishes standards (WIDA), assessments (ACCESS) and accountability requirements (AMAO)
Provides federal funds targeted to
Increasing English language proficiency
Providing professional development

17. AMAO Issue Student enrolls in PreK in district
Primary language spoken in home is not English
For purposes of accountability under Title III (Annual Measurable Achievement Objectives) does the student’s time in preK count?
Answer – It Depends
If district is receiving Title III funds for student, then time counts for AMAO

18. Exiting Program See N.J.A.C. 6A:15-1.3(c) Criteria for Exiting
Results of English language proficiency test
Assessing the level of reading in English
Reviewing previous academic performance of students
Standardized test results in English
Input of teaching staff members

19. Entitled to Same Protections as all other students
Teen Dating Violence Act
New Jersey Anti-Bullying Bill of Rights
Protected characteristics include national origin, ancestry
Catch all other distinguishing characteristics would include English language proficiency