WHT Law

Limited English Proficiency: An Examination of District Obligations

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Limited English Proficiency:  An Examination Of District Obligations

SERVICES TO LIMITED ENGLISH PROFICIENCY (“LEP”) STUDENTS – OCR LETTER, 21 IDELR 387 OGDEN CITY (UTAH) SCHOOL DISTRICT

OCR reviewed records at five elementary schools and one high school.  In 1993-94, the district began a Title VII funded transitional bilingual education program in all grades at two elementary schools.  No such services were offered at the other schools.

OCR concluded that the district discriminated against LEP students – based on national origin, by not affording them equal access to educational services, under Lau v. Nichols, 414 U.S. 563 (1974) and Castenada v. Pickard, 648 F.2d 989 (5th Cir. 1981).  Castenada established a three-prong test for determining if LEP students have equal access.  A program for LEP students is acceptable if:

1.  The district is using a program recognized as either “sound” or “legitimately experimental” by some experts;

2. The programs/practices actually used by the district are reasonably calculated to implement the methodology used; and

3.  The district has taken action if, after a trial period, the approach used fails to produce results.

Additionally, a district must have in place a mechanism for identification of students to ensure that those falling in the LEP category have alternative language services available to them.  OCR found three students, labeled “PHLOTE” – whose Primary or Home Language is Other Than English – who had not been assessed.  At two schools, formal instruments were used; at the other three, it was only teacher identification.  In the high school, they relied upon counselor referrals.

OCR then looked at actual programming – the district utilized Transitional Bilingual Education (“TBE”) and English as a Second Language (“ESL”) as well as tutorial assistance.  However, the TBE program was very new and therefore somewhat limited.  Also, “submersion” was frequently used; kids were in regular classes with no support.  “Submersion” is not legally acceptable.  Thus OCR held:

The district has not selected approaches that are considered

– Sound by some experts in the field, because 51% of eligible

– LEP students received no services.

The excuse was a lack of qualified staff – OCR said that if the district makes such a claim, it must show that it has required teachers already on staff to work toward attaining the proper qualifications.   The district had not met this burden.  Moreover, the only requirement for an aide was a high school diploma – and they were not even themselves tested for English proficiency.  Further, the district had no exit/proficiency criteria, nor did it periodically evaluate the effectiveness of its programs as required.

As to special education, the psychologist told OCR he had not tested an LEP student in all of his 14 years with the district!  This, parenthetically, tends to serve as evidence of an effective “refusal” to provide mandated services, which refusals tend to cause courts to subject districts to increased scrutiny.  Finally, all assessment instruments for special education were in English only, with no provision for participation of bilingual personnel.

The Conclusion

The district did not provide equal educational opportunity to LEP students.