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My professional perspective is that of an upcoming ENGL 1301 university instructor. I graduated from Texas A&M University with a Bachelor's degree in English. While at Texas A&M, I gained teaching and tutoring experience through my writing consultant position at the University Writing Center. I am currently pursuing my graduate degree at Angelo State University, and I plan to teach an English Composition course as a TA in the fall. This legal guide is intended for other English Composition instructors who may have an ELL student in their classroom and/or writing center administrators and tutors working with ELL students. As a third-year writing center tutor who has worked at two universities, I have seen and heard the struggles of ELL students in regards to their educational experience, so I wanted to further explore this topic.

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I interviewed Dr. Katie Jones,
Senior English Instructor and Developmental English Coordinator at Angelo State University. As an English Composition instructor. Dr. Jones discussed the importance of becoming aware of legal requirements concerning ELL students in higher education. In Texas,  a significant percentage of the university populations are classified as ELL students. While classified together, it is necessary to acknowledge that  individual students come from a unique background, separate experiences, and varied exposure/utilization of the English language. Dr. Jones also explained that a number of students taking English Composition are placed in that course due to the inability of meeting TSI standards or that of other standardized tests which may be in part due to language barriers. As an English Composition professor, Dr. Jones expressed that instructing ELL students is a part of her daily professional life.

Best Practices

Delivery of instruction and class size - avoid using terminology and language without explanation  that may be difficult for ELL students to understand ; speak slower and repeat instructions; smaller class sizes often make ELL students more comfortable with asking questions

Strategic Grading - avoid marking every single grammatical error and focus on higher-order concerns

Scaffolding assignments-structure and individualized instruction is helpful to students

Dr. Jones stated that she was not aware of any pending legislation regarding the instruction of ELL students. However, Dr. Jones explained that instructors are monitoring the Biden Administration and legislation regarding immigration policies. Dr. Jones explained that changes to immigration law could potentially lead to an increase in the number of ELL students in attendance at universities in Texas. This change in immigration legislation could result in the reformation of ELL student education with legal changes aiming towards the goal of enhancing the educational experience for ELL students.

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Senior Instructor/Coordinator of Developmental English Department of English and Modern Languages

My name is Katie Jones, and I am currently the Writing Center Director. My experience in the Writing Center dates back to 2009 when I was a tutor, and from Fall 2010 until Spring 2013, I served as the Writing Center Coordinator. I am committed to helping students become better writers, and I thoroughly enjoy teaching ASU students in composition courses.

I received my Bachelor's Degree in English from the University of Texas at Austin and taught high school English for 12 years in the Austin area. I received my Master's Degree in English from Angelo State University, and I have taught English Composition courses at ASU the past several years. In addition to teaching and serving as the Writing Center Director, I am also working on an Ed.D. in Leadership in Higher Education at Hardin-Simmons University in Abilene.

In my spare time, I enjoy reading, traveling, visiting art museums, going to see local bands, and cooking. I am also an avid Texas Longhorns fan and enjoy watching football games with friends and family.

I encourage you all to come to the Writing Center. The tutors are skilled and accomplished writers who are happy to help you improve your writing and become more confident writers. The atmosphere is friendly and relaxed, and I know your tutoring sessions at the Writing Center will yield positive results.

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Senior Instructor/Coordinator of Developmental English Department of English and Modern Languages My name is Katie Jones, and I am currently the Writing Center Director. My experience in the Writing Center dates back to 2009 when I was a tutor, and from Fall 2010 until Spring 2013, I served as the Writing Center Coordinator.

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Buchs, L., & Bilbrey, C. (2019, December 6). Unraveling Title IX with International Students. National Association of Student Personnel Administrators.https://www.naspa.org/course/unraveling-title-ix-with-international-students.

The National Association of Student Personnel Administrators offers a course titled "Unraveling Title IX with International Students". This course informs its participants on how to identify potential barriers for international students in regards to Title IX policies and how to create a plan for breaking these barriers down by providing resources and opportunities for collaboration to improve ELL students' access to Title IX. Because ELL students may not find the Title IX resources currently accessible due to language barriers, this course would help administrators learn new strategies to create equal opportunities and equal access to the rights of all students.

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Health, Safety, and Well-being Student Success Supporting the Profession International Education Sexual and Relationship Violence Prevention, Education, and Response Mid-Level
Note: Time zones are in Eastern.
Providing the same level of Title IX-related education and services to international students as we do for domestic students presents unique challenges. International students enter our institutions having had diverse experiences with U.S. culture, higher education, laws and policies, and dating and sex generally. International students' fluency in English and understanding of the technical language involved in Title IX policies and processes varies. Participation in an investigation process, as complainant, respondent or witness, may cause particular fear for international students, who may be uncertain as to how these events could affect their nonimmigrant status. In addition, home country communities within the U.S. and abroad may be influential in international students' actions regarding Title IX matters.

This session broadly aims to discuss barriers for international students to accessing and participating in Title IX programs. Presenters will share case examples from their experiences working with international students on multiple campuses and offer ideas for increasing international student access to and participation in Title IX programs and services. Presenters will also offer examples of resource materials specifically designed for international students and staff working with international student services offices.

Learning Outcomes

Participants will be able to:

name a minimum of two potential barriers to international student access to and participation in Title IX programs and services on their campuses;

describe at least two actions their campuses could take to increase international student access to and participation in Title IX programs and services; and

identify at least two ways in which Title IX and International Student Services staff (and other campus partners) can collaborate to improve communication of Title IX policies, procedures, and support services to international students.

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Unraveling Title IX with International Students

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Health, Safety, and Well-being Student Success Supporting the Profession International Education Sexual and Relationship Violence Prevention, Education, and Response Mid-Level Note: Time zones are in Eastern. Providing the same level of Title IX-related education and services to international students as we do for domestic students presents unique challenges.

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Jaschik, S. (2021, February 22).
The Battle to Test International Students. Inside Higher Ed. https://www.insidehighered.com/admissions/article/2021/02/22/ets-unveils-new-toefl-keeps-old-toefl.

Foreign students have still been required to demonstrate English proficiency through standardized tests despite most testing being optional during Covid-19

The new version of TOEFL is called "TOEFL Essentials" and costs less than the original

International student enrollment dropped significantly in Fall 2020

TOEFL Essentials takes half the time to complete and costs half of the original

Testing officials claim that competing tests do not offer the same accuracy as TOEFL, listing Duolingo as an example

Universities have been more willing to accept different tests during Covid-19

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The past year has been a terrible one for the standardized testing industry, as colleges have shifted to test-optional policies and test cancellations have plagued administrations.

But even as colleges have gone test optional (or test blind), most have still required foreign students to take a test to demonstrate their English proficiency. For many years, the primary test used for admission to colleges in the United States was the Test of English as a Foreign Language, known by its acronym TOEFL. But during the year of the pandemic, an alternative -- shorter and less costly -- offered by Duolingo has gained market share. It was around before the pandemic but has taken off during the year of COVID-19.

So the Educational Testing Service is unveiling a new version of TOEFL, which will cost about half of what the regular TOEFL costs (but still about twice the cost of Duolingo). The new test will be called TOEFL Essentials, while the old version will be called TOEFL iBT.

ETS maintains that the TOEFL iBT is the best test, the "gold standard" in the words of Srikant Gopal, executive director of the TOEFL program. ETS last week informed colleges of the existence of TOEFL Essentials and is starting to promote it, with the first use of the test coming in August. But ETS is also still promoting the original test. And Duolingo is still gaining ground against the original TOEFL.
The Timing
The timing may at first seem odd for a major battle for the international student testing market. New international students dropped in enrollment by 43 percent this fall, and more drops are expected next year. But every indication exists that international students still want to study in the U.S., and American colleges want them -- both for the educational experience they provide and for the tuition dollars they bring. In this environment, colleges have been anxious to recruit the foreign students who are already in the United States, or who can get here.

So while there may be fewer international students for now, colleges are doing everything they can to get them. Just about every American colleges accepts TOEFL scores. Duolingo in 2018 could point to only dozens of colleges accepting the test, some experimentally. Now Duolingo is accepted by 3,000-plus colleges, nearly as many as TOEFL.

Yale University accepts both, as well as the International English Language Testing System (IELTS) and the Pearson Test of English. The university says, "Yale's most competitive applicants have [Duolingo] scores of at least 120." (Like the TOEFL, Duolingo doesn't set specific scores to pass the test.)

Duolingo costs $49 and takes an hour.

Raffi Muroy, director of international admission at Suffolk University, said his university has accepted both tests but has seen "a very significant uptick in Duolingo submissions since the summer of 2020."

He added that "it makes a lot of sense for TOEFL to examine an option that can be as beneficial and helpful ... What maybe ETS/TOEFL can take advantage of is their reputation. But over all, I think that in these uncertain and ever changing times, any efforts test providers take to make a test accessible, convenient and thus break barriers is a positive one. Without compromising security and reliability, of course."
The New Test
ETS's Gopal said the new TOEFL will take an hour and a half to complete (roughly half the time of the old TOEFL). The cost of the new test will be $100 to $120, "roughly half" of the cost of the original form of the test. (There is no set fee for the TOEFL; its charges vary by country where it is given. It costs $225 to take in the U.S., less in some countries, more in others.)

The new test measures four skills: listening, reading, writing and speaking. Unlike the original TOEFL (but like Duolingo), the English skills it measures are in both academic English and conversational English in a variety of settings.

With the new TOEFL, ETS hopes to attract "different kinds of students," Gopal said.

The iBT TOEFL features questions "that are longer and go deeper into a topic," he said. For instance, there would be 10 questions on a reading passage that comes from a college textbook.

"It's a very immersive experience," Gopal said.

TOEFL Essentials would feature "more tasks, but they are shorter."

Gopal predicted that many colleges would offer both tests for admission, and that TOEFL iBT would continue to be popular.
'Not Reliable or Accurate'
He said that one reason for the new test was that many tests that have arisen to compete in the market are "not reliable or accurate."

Asked if he was talking about Duolingo, which he hadn't named at that point in the discussion, he said that he was.

He said that Duolingo develops questions "using computer models to guess" at what would be a good question. ETS, for both the new and old TOEFL, uses "assessment experts" to develop new questions. And new questions are tested around the world, to be sure that no one culture would have an unfair advantage.

TOEFL, old and new, also features human proctors (even though the test may be taken at home).

With Duolingo, "you can take the test and no one is watching."

Gopal would not say how many people took the TOEFL last year, citing ETS policy against revealing such totals. But he acknowledged that the number for 2020 was lower than the number for 2019.

He said the reason more students than in the past are taking Duolingo was "a desire from universities in the U.S. not to lose any applicant."

But he said these universities are realizing "that there is trade-off" and that they are letting in some students who are "not qualified." Because the growth in Duolingo is so recent, he said he doesn't know how many institutions have been affected. "We don't know how many institutions have lowered their standards and hurt their reputations," he said.

Jennifer Dewar, head of strategic engagement for Duolingo, strongly disputed the ETS claims about her company. She worked in admissions at Duke University and Washington University in St. Louis before joining the company, and she said Duolingo meets a clear need.

She said that Duolingo does use computers in its question-generating process, but she said "people" are involved as well. And she said questions are tested all over the world.

It takes at least a year for Duolingo to develop a new question, and that time reflects the company's values, she said.

Because many students have taken Duolingo and TOEFL, she said that "if a student does well on Duolingo, they are likely to do well" on TOEFL.

Dewar stressed that the company has grown by building relationships with the students and the colleges that its test serves.

While Duolingo also did not reveal how many people took the test in 2020, the number grew by 2,000 percent last year.

Asked about the new TOEFL test, Dewar said, "we are very happy to see long-term test providers moving in the direction that's critical for student access."

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ETS unveils a new TOEFL but keeps the old TOEFL

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The past year has been a terrible one for the standardized testing industry, as colleges have shifted to test-optional policies and test cancellations have plagued administrations. But even as colleges have gone test optional (or test blind), most have still required foreign students to take a test to demonstrate their English proficiency.

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St. Amour, M. (2019, December 17). Accelerating Coursework for ESL. Insider Higher Ed. https://www.insidehighered.com/news/2019/12/17/no-clear-cut-answers-reforming-english-language-instruction.

Assembly Bill 705 required universities in California to speed up the ESL coursework

Instructors have varied opinions on this bill; Some argue that the accelerated coursework allows ELL students to progress more quickly in other courses

Providing certificates in ESL is argued to work as encouragement for students to accelerate more quickly

Following Assembly Bill 705, officials are looking into reforming the ELL program, as a large percentage of students enrolled in college are ELL.

The tension between ESL faculty and non-ESL faculty is forcing instructors to reform their teaching practices when it comes to ELL students.

In order to best accelerate the ESL coursework, changes would need to be made to the curriculum as well.

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When a new law in California started requiring colleges to accelerate coursework for learning English as a second language, Cuyamaca College in El Cajon was already there.

Assembly Bill 705, which took effect in 2018, requires colleges to maximize the likelihood that students will complete transfer-level English and math courses within a year of enrolling. It includes both developmental education and ESL sequences, although it identifies ESL programs as distinct from remedial courses and requires institutions to encourage ESL students to complete transfer-level English within three years instead of one.

"Most of my colleagues across the state seem to be in a panic because of AB 705," said Guillermo Colls, faculty chair for ESL at Cuyamaca. "Here at Cuyamaca, we're not scrambling because we did that before AB 705 came around."

Cuyamaca shortened its ESL sequence from seven levels to five. Students can finish in as few as three levels if they are successful in classes. The college started the work in 2016, Colls said, after faculty members attended the annual California Acceleration Project conference and realized that many of the techniques used in developmental English could be applied to ESL.

The results have been positive. Students are finishing the ESL sequences faster, according to data from the college. While no students who entered ESL at the lowest level of the sequence completed transfer-level English within three semesters in 2015, 16 percent of students did so in 2017.

"These language-learning students have been capable of a lot more than we thought for a long, long time," Colls said. "It's not something to be afraid of or to resist."

Kathryn Wada, a professor of ESL at Cypress College in California, was a member of the statewide AB 705 implementation committee. She, with help from colleagues, pushed for an amendment to the original legislation that distinguished ESL as separate from remedial coursework.

Her college now offers certificates in ESL to encourage students to keep moving forward, as she said research shows ESL students often make it close to the transfer finish line but not quite over it.
Practical Concerns
The time is ripe for more attention to ESL, as California alone enrolls more than 50,000 new ESL students in its community college system. But while most faculty members and researchers agree that the profession needs reforms, there's a tension between the desire for acceleration and the practical amount of time it takes to learn a new language. As policy makers, advocates and institutions push to reform developmental education, ESL programs are often lumped into the conversation.

At the City University of New York, ESL faculty are "unsure of what the future holds," according to Heather Finn, associate professor and deputy chair of ESL at the Borough of Manhattan Community College in the CUNY system.

As of fall 2022, CUNY will no longer offer noncredit remedial courses. While it's clear how developmental education will move forward, Finn said questions remain for ESL.

"Up until very, very recently, no one thought about ELL with the change," said Sharon Avni, a professor of literacy and linguistics at BMCC, referring to English language learners, another name for those in ESL programs. "What's happening now is, in a way, almost a catch-up effort."

One of the issues is a lack of research, particularly about ESL students who attend community colleges. While Avni has taught a corequisite ESL course and had a positive experience, there's still not enough research for her to say it's the right way forward.

"We're in a bit of an experimental phase with all of this," she said. "It's hard to know what's bad and what's good."

Linda Harklau, a professor of language and literacy education at the University of Georgia, also wants more information on what works.

Corequisite courses, which combine ESL teaching with a credit-bearing course, are being pushed heavily, Harklau said, and there's not a lot of attention paid to instruction reform.

"Basically, the corequisite model is attractive to administrators because it saves them money, so it makes it really hard to argue for experimentation," she said.

But instructors in this field want to look at other options, like recognizing the "complete linguistic repertoire" of students, she said. This is difficult because non-ESL faculty don't see teaching English learners as their jobs and don't have any ESL training, so it's hard for students to get support further along in college.

There's also a "stretch model," which stretches corequisite courses into two semesters so students get more consistent support. Likewise, other proposals would let ESL courses count as humanities credits and allow students to use directed self-placement to determine whether they take ESL courses at all.

"What frustrates me is the sheer lack of research or even interest in documenting programs like these," Harklau said. "We need to be able to experiment with multiple models, and I think right now there's a tendency to just focus on corequisites."

While many questions remain, California seems to be making progress with acceleration. Research has found that colleges that integrate ESL courses -- combining writing and reading into one course, for example -- are helping students complete transfer-level courses at a higher rate, according to Olga Rodriguez, a research fellow at the Public Policy Institute of California.

Rodriguez argues that there are right ways to accelerate ESL sequences. If students are aware of supports, like writing centers, then they can continue to learn the language in other courses.

Colls at Cuyamaca said acceleration can be harmful if a college just cuts levels without actually changing the curriculum. Cuyamaca integrated reading and writing, uses "real world books" rather than textbooks and implemented an accordion system that helps students move along at the appropriate pace. Instead of going from one to two, Colls said, they take "1A" and then, if they need more practice, "1B." If not, they go straight to "2A."

"This can be a real blessing to your students," he said. "It's working here."

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No clear-cut answers for reforming English language instruction

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When a new law in California started requiring colleges to accelerate coursework for learning English as a second language, Cuyamaca College in El Cajon was already there. Assembly Bill 705, which took effect in 2018, requires colleges to maximize the likelihood that students will complete transfer-level English and math courses within a year of enrolling.

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Slide 6: Every Student Succeeds Act (ESSA)

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Slide 6: Every Student Succeeds Act (ESSA)

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Federal Statutory Law
Every Student Succeeds Act, 20 U.S.C. § 6301 (2015). https://www.congress.gov/bill/114th-congress/senate-bill/1177

President Obama signed this statute in 2015

Ensures equal opportunity for all students

Improves educational equity

Annual statewide assessments are utilized to measure student progress (can track improvements of ELL students and recognize where additional support is needed)

Allows new ELL students to be exempt from the assessment for one year if being enrolled in a United States school

Funding levels rise, and school districts are able to acquire more resources to enhance to education of ELL students

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Every Student Succeeds Act (ESSA) | U.S. Department of Education

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Slide 7: Commissioner's Rules Concerning State Plan for Educating English Learners

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Slide 7: Commissioner's Rules Concerning State Plan for Educating English Learners

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State Administrative Law
(19 TAC §89.1201)

Students whose first language is not English will be provided with and have the option to participate in  bilingual education and/or an ESL program

School districts must refer to the information provided by the state in order to identify ELL students that may benefit from these services

School districts must also ensure that instructors have proper certification in order to participate/teach in programs for ELL students

School districts must make certain that the programs for ELL students are meeting the requirements for obtaining and mastering key educational milestones

As an instructor of an English 1301 course, it is essential that one remain aware of the rights and programs students had access to prior to attending a university.

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Chapter 89. Adaptations for Special Populations
Subchapter BB. Commissioner's Rules Concerning State Plan for Educating English Learners

89.1201. Policy.

(a) It is the policy of the state that every student in the state who has a primary language other than English and who is identified as an English learner shall be provided a full opportunity to participate in a bilingual education or English as a second language (ESL) program, as required in the Texas Education Code (TEC), Chapter 29, Subchapter B. To ensure equal educational opportunity, as required in the TEC, §1.002(a), each school district shall:

(1) identify English learners based on criteria established by the state;

(2) provide bilingual education and ESL programs, as integral parts of the general program as described in the TEC, §4.002;

(3) seek appropriately certified teaching personnel to ensure that English learners are afforded full opportunity to master the essential knowledge and skills required by the state; and

(4) assess achievement for essential knowledge and skills in accordance with the TEC, Chapter 29, to ensure accountability for English learners and the schools that serve them.

(b) The goal of bilingual education programs shall be to enable English learners to become proficient in listening, speaking, reading, and writing in the English language through the development of literacy and academic skills in the primary language and English. Such programs shall emphasize the mastery of English language skills, as well as mathematics, science, and social studies, as integral parts of the academic goals for all students to enable English learners to participate equitably in school.

(c) The goal of ESL programs shall be to enable English learners to become proficient in listening, speaking, reading, and writing in the English language through the integrated use of second language acquisition methods. The ESL program shall emphasize the mastery of English language skills, as well as mathematics, science, and social studies, as integral parts of the academic goals for all students to enable English learners to participate equitably in school.

(d) Bilingual education and ESL programs shall be integral parts of the total school program. Such programs shall use instructional approaches designed to meet the specific language needs of English learners. The basic curriculum content of the programs shall be based on the Texas Essential Knowledge and Skills and the English language proficiency standards required by the state.

Statutory Authority: The provisions of this §89.1201 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1201 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

89.1203. Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Bilingual education allotment--An adjusted basic funding allotment provided for each school district based on student average daily attendance in a bilingual education or English as a second language (ESL) program in accordance with Texas Education Code (TEC), §42.153.

(2) Certified English as a second language teacher--The term "certified English as a second language teacher" as used in this subchapter is synonymous with the term "professional transitional language educator" used in TEC, §29.063.

(3) Dual language immersion--A state-approved bilingual program model in accordance with TEC, §29.066.

(4) Dual-language instruction--An educational approach that focuses on the use of English and the student's primary language for instructional purposes.

(5) English as a second language program--A special language program in accordance with TEC, Chapter 29, Subchapter B.

(6) English language proficiency standards (ELPS)--Standards to be published along with the Texas Essential Knowledge and Skills for each subject in the required curriculum outlined in Chapter 74 of this title (relating to Curriculum Requirements), including foundation and enrichment areas, ELPS, and college and career readiness standards.

(7) English learner (EL) --A student who is in the process of acquiring English and has another language as the student's primary or home language. The terms English language learner (ELL) and English learner are used interchangeably and are synonymous with limited English proficient (LEP) student, as used in TEC, Chapter 29, Subchapter B.

(8) Exit--The point when a student is no longer classified as LEP/EL (i.e., the student is reclassified), no longer requires bilingual or ESL program services, and is classified as non-LEP/English proficient (EP) in the Texas Student Data System Public Education Information Management System (TSDS PEIMS). The term "exit" as used in this subchapter is synonymous with the description in TEC, Chapter 29, of "transferring out" of bilingual or special language programming.

(9) Reclassification--The process by which the language proficiency assessment committee determines that an English learner has met the appropriate criteria to be classified as non-LEP/EP and is coded as such in TSDS PEIMS.

(10) School district--For the purposes of this subchapter, the definition of a school district includes a local education agency, an open-enrollment charter school, and a district of innovation.

(11) Prekindergarten--For purposes of this subchapter, prekindergarten describes students enrolled in a 3- or 4-year-old prekindergarten program, as well as 3- or 4-year-old students enrolled in an early education setting.

(12) Alternative language program--A program that meets the affective, linguistic, and cognitive needs of ELs and equips the teacher under a bilingual education or ESL waiver described in §89.1207 of this title (relating to Bilingual Education Exceptions and English as a Second Language Waivers) through the comprehensive professional development plan.

(13) Parent--The term "parent" as used in this subchapter includes the parent or legal guardian of the student in accordance with TEC, §29.052.

Statutory Authority: The provisions of this §89.1203 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1203 adopted to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

89.1205. Required Bilingual Education and English as a Second Language Programs.

(a) Each school district that has an enrollment of 20 or more English learners in any language classification in the same grade level district-wide shall offer a bilingual education program as described in subsection (b) of this section for the English learners in prekindergarten through the elementary grades with that language classification. "Elementary grades" shall include at least prekindergarten through Grade 5; sixth grade shall be included when clustered with elementary grades.

(b) A school district required to provide a bilingual education program as described in subsection (a) of this section shall offer dual-language instruction (English and primary language) in prekindergarten through the elementary grades, using one of the four bilingual program models described in §89.1210 of this title (relating to Program Content and Design).

(c) All English learners for whom a school district is not required to offer a bilingual education program shall be provided an English as a second language (ESL) program as described in subsection (d) of this section, regardless of the students' grade levels and primary language, and regardless of the number of such students, except in cases where a district exercises the option described in subsection (g) of this section.

(d) A school district required to provide an ESL program as described in subsection (c) of this section shall provide an ESL program using one of the two models described in §89.1210 of this title.

(e) School districts may join with other school districts to provide bilingual education or ESL programs.

(f) In addition to the required bilingual and/or ESL programs, school districts are authorized to establish a bilingual education program even if they have an enrollment of fewer than 20 English learners in any language classification in the same grade level district-wide and are not required to do so under subsection (a) of this section. Under this authorization, school districts shall adhere to all program requirements as described in §§89.1210 of this title, 89.1227 of this title (relating to Minimum Requirements for Dual Language Immersion Program Model), 89.1228 of this title (relating to Two-Way Dual Language Immersion Program Model Implementation), and 89.1229 of this title (relating to General Standards for Recognition of Dual Language Immersion Program Models).

(g) In addition to the required bilingual and/or ESL programs, school districts are authorized to establish a bilingual education program at grade levels in which the bilingual education program is not required under subsection (a) of this section. Under this authorization, school districts shall adhere to all program requirements as described in §§89.1210, 89.1227, 89.1228, and 89.1229 of this title.

Statutory Authority: The provisions of this §89.1205 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1205 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective March 5, 1999, 24 TexReg 1383; amended to be effective April 18, 2002, 27 TexReg 3107; amended to be effective September 17, 2007, 32 TexReg 6311; amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

89.1207. Bilingual Education Exceptions and English as a Second Language Waivers.

(a) Bilingual education program.

(1) Exceptions. A school district that is unable to provide a bilingual education program as required by §89.1205(a) of this title (relating to Required Bilingual Education and English as a Second Language Programs) because of an insufficient number of appropriately certified teachers shall request from the commissioner of education an exception to the bilingual education program and the approval of an alternative language program as defined in §89.1203(12) of this title (relating to Definitions). English learners with parental approval for program services under a bilingual education exception will be included in the bilingual education allotment designated for an alternative language program. The approval of an exception to the bilingual education program shall be valid only during the school year for which it was granted. A request for a bilingual education program exception must be submitted by November 1 and shall include:

(A) a statement of the reasons the school district is unable to provide a sufficient number of appropriately certified teachers to offer the bilingual education program with supporting documentation;

(B) a description of the alternative language program and methods to meet the affective, linguistic, and cognitive needs of the English learners, including the manner through which the students will be given opportunity to master the essential knowledge and skills required by Chapter 74 of this title (relating to Curriculum Requirements) to include foundation and enrichment areas, English language proficiency standards (ELPS), and college and career readiness standards (CCRS);

(C) an assurance that appropriately certified teachers available in the school district will be assigned to grade levels beginning at prekindergarten followed successively by subsequent grade levels to ensure that the linguistic and academic needs of the English learners with beginning levels of English proficiency are served on a priority basis;

(D) an assurance that the school district will implement a comprehensive professional development plan that:

(i) is ongoing and targets the development of the knowledge, skills, and competencies needed to serve the needs of English learners;

(ii) includes the teachers who are not certified or not appropriately certified who are assigned to implement the proposed alternative language program; and

(iii) may include additional teachers who work with English learners;

(E) an assurance that at least 10% of the total bilingual education allotment shall be used to fund the comprehensive professional development plan required under subparagraph (D) of this paragraph when applying for a bilingual education exception, ESL waiver, or both;

(F) an assurance that the school district will take actions to ensure that the program required under §89.1205(a) of this title will be provided the subsequent year, including its plans for recruiting an adequate number of appropriately certified teachers to eliminate the need for subsequent exceptions and measurable targets for the subsequent year; and

(G) an assurance that the school district shall satisfy the additional reporting requirements described in §89.1265(c) of this title (relating to Evaluation).

(2) Documentation. A school district submitting a bilingual education exception shall maintain written records of all documents supporting the submission and assurances listed in paragraph (1) of this subsection, including:

(A) a description of the proposed alternative language program designed to meet the affective, linguistic, and cognitive needs of the English learners;

(B) the number of teachers for whom a bilingual education exception is needed by grade level and per campus;

(C) a copy of the school district's comprehensive professional development plan; and

(D) a copy of the bilingual allotment budget documenting that a minimum of 10% of the funds were used to fund the comprehensive professional development plan.

(3) Approval of exceptions. Bilingual education program exceptions will be granted by the commissioner if the requesting school district:

(A) meets or exceeds the state average for English learner performance on the required state assessments;

(B) meets the requirements and measurable targets of the action plan described in paragraph (1)(F) of this subsection submitted the previous year and approved by the Texas Education Agency (TEA); or

(C) reduces by 25% the number of teachers under exception for bilingual programs when compared to the number of exceptions granted the previous year.

(4) Denial of exceptions. A school district denied a bilingual education program exception must submit to the commissioner a detailed action plan for complying with required regulations for the following school year.

(5) Appeals. A school district denied a bilingual education program exception may appeal to the commissioner or the commissioner's designee. The decision of the commissioner or commissioner's designee is final and may not be appealed further.

(6) Special accreditation investigation. The commissioner may authorize a special accreditation investigation under the Texas Education Code (TEC), §39.057, if a school district is denied a bilingual education program exception for more than three consecutive years.

(7) Sanctions. Based on the results of a special accreditation investigation, the commissioner may take appropriate action under the TEC, §39.102.

(b) English as a second language (ESL) program.

(1) Waivers. A school district that is unable to provide an ESL program as required by §89.1205(c) of this title because of an insufficient number of appropriately certified teachers shall request from the commissioner a waiver of the certification requirements for each teacher who will provide instruction in ESL for English learners and the approval of an alternative language program as defined in §89.1203(12) of this title. English learners with parental approval for program services under an ESL waiver will be included in the bilingual education allotment designated for an alternative language program. The approval of a waiver of certification requirements shall be valid only during the school year for which it was granted. A request for an ESL program waiver must be submitted by November 1 and shall include:

(A) a statement of the reasons the school district is unable to provide a sufficient number of appropriately certified teachers to offer the ESL program;

(B) a description of the alternative language program, including the manner in which the teachers in the ESL program will meet the affective, linguistic, and cognitive needs of the English learners, including the manner through which the students will be given opportunity to master the essential knowledge and skills required by Chapter 74 of this title to include foundation and enrichment areas, ELPS, and CCRS;

(C) an assurance that appropriately certified teachers available in the school district will be assigned to grade levels beginning at prekindergarten followed successively by subsequent grade levels in the elementary school campus and, if needed, secondary campuses, to ensure that the linguistic and academic needs of the English learners with the lower levels of English proficiency are served on a priority basis;

(D) an assurance that the school district shall implement a comprehensive professional development plan that:

(i) is ongoing and targets the development of the knowledge, skills, and competencies needed to serve the needs of English learners;

(ii) includes the teachers who are not certified or not appropriately certified who are assigned to implement the proposed alternative language program; and

(iii) may include additional teachers who work with English learners;

(E) an assurance that at least 10% of the total bilingual education allotment shall be used to fund the comprehensive professional development plan required under subparagraph (D) of this paragraph when applying for a bilingual education exception, ESL waiver, or both;

(F) an assurance that the school district will take actions to ensure that the program required under §89.1205(c) of this title will be provided the subsequent year, including its plans for recruiting an adequate number of appropriately certified teachers to eliminate the need for subsequent waivers; and

(G) an assurance that the school district shall satisfy the additional reporting requirements described in §89.1265(c) of this title.

(2) Documentation. A school district submitting an ESL waiver shall maintain written records of all documents supporting the submission and assurances listed in paragraph (1) of this subsection, including:

(A) a description of the proposed alternative language program designed to meet the affective, linguistic, and cognitive needs of the English learners;

(B) the name and teaching assignment, per campus, of each teacher who is assigned to implement the ESL program and is under a waiver and the estimated date for the completion of the ESL supplemental certification, which must be completed by the end of the school year for which the waiver was requested;

(C) a copy of the school district's comprehensive professional development plan;

(D) a copy of the bilingual allotment budget documenting that a minimum of 10% of the funds were used to fund the comprehensive professional development plan; and

(E) a description of the actions taken to recruit an adequate number of appropriately certified teachers.

(3) Approval of waivers. ESL waivers will be granted by the commissioner if the requesting school district:

(A) meets or exceeds the state average for English learner performance on the required state assessments; or

(B) meets the requirements and measurable targets of the action plan described in paragraph (1)(G) of this subsection submitted the previous year and approved by the TEA.

(4) Denial of waivers. A school district denied an ESL program waiver must submit to the commissioner a detailed action plan for complying with required regulations for the following school year.

(5) Appeals. A school district denied an ESL waiver may appeal to the commissioner or the commissioner's designee. The decision of the commissioner or commissioner's designee is final and may not be appealed further.

(6) Special accreditation investigation. The commissioner may authorize a special accreditation investigation under the TEC, §39.057, if a school district is denied an ESL waiver for more than three consecutive years.

(7) Sanctions. Based on the results of a special accreditation investigation, the commissioner may take appropriate action under the TEC, §39.102.

Statutory Authority: The provisions of this §89.1207 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1207 adopted to be effective September 17, 2007, 32 TexReg 6311; amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

89.1210. Program Content and Design.

(a) Each school district required to offer a bilingual education or English as a second language (ESL) program shall provide each English learner the opportunity to be enrolled in the required program at his or her grade level. Each student's level of proficiency shall be designated by the language proficiency assessment committee in accordance with §89.1220(g) of this title (relating to Language Proficiency Assessment Committee). The school district shall accommodate the instruction, pacing, and materials to ensure that English learners have a full opportunity to master the essential knowledge and skills of the required curriculum, which includes the Texas Essential Knowledge and Skills and English language proficiency standards (ELPS). Students participating in the bilingual education program may demonstrate their mastery of the essential knowledge and skills in either their primary language or in English for each content area.

(1) A bilingual education program of instruction established by a school district shall be a full-time program of dual-language instruction (English and primary language) that provides for learning basic skills in the primary language of the students enrolled in the program and for carefully structured and sequenced mastery of English language skills under Texas Education Code (TEC), §29.055(a).

(2) An ESL program of instruction established by a school district shall be a program of intensive instruction in English in which ESL teachers recognize and address language differences in accordance with TEC, §29.055(a).

(b) The bilingual education program and ESL program shall be integral parts of the general educational program required under Chapter 74 of this title (relating to Curriculum Requirements) to include foundation and enrichment areas, ELPS, and college and career readiness standards. In bilingual education programs, school districts shall purchase instructional materials in both program languages with the district's instructional materials allotment or otherwise acquire instructional materials for use in bilingual education classes in accordance with TEC, §31.029(a). Instructional materials for bilingual education programs on the list adopted by the commissioner of education, as provided by TEC, §31.0231, may be used as curriculum tools to enhance the learning process. The school district shall provide for ongoing coordination between the bilingual/ESL program and the general educational program. The bilingual education and ESL programs shall address the affective, linguistic, and cognitive needs of English learners as follows.

(1) Affective.

(A) English learners in a bilingual program shall be provided instruction using second language acquisition methods and/or their primary language to introduce basic concepts of the school environment, and content instruction both in their primary language and in English, which instills confidence, self-assurance, and a positive identity with their cultural heritages. The program shall be designed to consider the students' learning experiences and shall incorporate the cultural aspects of the students' backgrounds in accordance with TEC, §29.055(b).

(B) English learners in an ESL program shall be provided instruction using second language acquisition methods in English to introduce basic concepts of the school environment, which instills confidence, self-assurance, and a positive identity with their cultural heritages. The program shall be designed to incorporate the students' primary languages and learning experiences and shall incorporate the cultural aspects of the students' backgrounds in accordance with TEC, §29.055(b).

(2) Linguistic.

(A) English learners in a bilingual program shall be provided intensive instruction in the skills of listening, speaking, reading, and writing both in their primary language and in English, provided through the ELPS. The instruction in both languages shall be structured to ensure that the students master the required essential knowledge and skills and higher-order thinking skills in all subjects.

(B) English learners in an ESL program shall be provided intensive instruction to develop proficiency in listening, speaking, reading, and writing in the English language, provided through the ELPS. The instruction in academic content areas shall be structured to ensure that the students master the required essential knowledge and skills and higher-order thinking skills in all subjects.

(3) Cognitive.

(A) English learners in a bilingual program shall be provided instruction in language arts, mathematics, science, and social studies both in their primary language and in English, using second language acquisition methods in either their primary language, in English, or in both, depending on the specific program model(s) implemented by the district. The content area instruction in both languages shall be structured to ensure that the students master the required essential knowledge and skills and higher-order thinking skills in all subjects.

(B) English learners in an ESL program shall be provided instruction in English in language arts, mathematics, science, and social studies using second language acquisition methods. The instruction in academic content areas shall be structured to ensure that the students master the required essential knowledge and skills and higher-order thinking skills.

(c) The bilingual education program shall be implemented through at least one of the following program models.

(1) Transitional bilingual/early exit is a bilingual program model in which students identified as English learners are served in both English and another language and are prepared to meet reclassification criteria to be successful in English-only instruction not earlier than two or later than five years after the student enrolls in school. Instruction in this program is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061(b)(1), for the assigned grade level and content area. The goal of early-exit transitional bilingual education is for program participants to use their primary language as a resource while acquiring full proficiency in English. This model provides instruction in literacy and academic content through the medium of the students' primary language along with instruction in English that targets second language development through academic content.

(2) Transitional bilingual/late exit is a bilingual program model in which students identified as English learners are served in both English and another language and are prepared to meet reclassification criteria to be successful in English-only instruction not earlier than six or later than seven years after the student enrolls in school. Instruction in this program is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061(b)(2), for the assigned grade level and content area. The goal of late-exit transitional bilingual education is for program participants to use their primary language as a resource while acquiring full proficiency in English. This model provides instruction in literacy and academic content through the medium of the students' primary language along with instruction in English that targets second language development through academic content.

(3) Dual language immersion/one-way is a bilingual/biliteracy program model in which students identified as English learners are served in both English and another language and are prepared to meet reclassification criteria in order to be successful in English-only instruction not earlier than six or later than seven years after the student enrolls in school. Instruction provided in a language other than English in this program model is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061. Instruction provided in English in this program model may be delivered either by a teacher appropriately certified in bilingual education or by a different teacher certified in ESL in accordance with TEC, §29.061. The goal of one-way dual language immersion is for program participants to attain full proficiency in another language as well as English. This model provides ongoing instruction in literacy and academic content in the students' primary language as well as English, with at least half of the instruction delivered in the students' primary language for the duration of the program.

(4) Dual language immersion/two-way is a bilingual/biliteracy program model in which students identified as English learners are integrated with students proficient in English and are served in both English and another language and are prepared to meet reclassification criteria in order to be successful in English-only instruction not earlier than six or later than seven years after the student enrolls in school. Instruction provided in a language other than English in this program model is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061, for the assigned grade level and content area. Instruction provided in English in this program model may be delivered either by a teacher appropriately certified in bilingual education or by a different teacher certified in ESL in accordance with TEC, §29.061, for the assigned grade level and content area. The goal of two-way dual language immersion is for program participants to attain full proficiency in another language as well as English. This model provides ongoing instruction in literacy and academic content in English and another language with at least half of the instruction delivered in the non-English program language for the duration of the program.

(d) The ESL program shall be implemented through one of the following program models.

(1) An ESL/content-based program model is an English acquisition program that serves students identified as English learners through English instruction by a teacher appropriately certified in ESL under TEC, §29.061(c), through English language arts and reading, mathematics, science, and social studies. The goal of content-based ESL is for English learners to attain full proficiency in English in order to participate equitably in school. This model targets English language development through academic content instruction that is linguistically and culturally responsive in English language arts and reading, mathematics, science, and social studies.

(2) An ESL/pull-out program model is an English acquisition program that serves students identified as English learners through English instruction provided by an appropriately certified ESL teacher under the TEC, §29.061(c), through English language arts and reading. The goal of ESL pull-out is for English learners to attain full proficiency in English in order to participate equitably in school. This model targets English language development through academic content instruction that is linguistically and culturally responsive in English language arts and reading. Instruction shall be provided by the ESL teacher in a pull-out or inclusionary delivery model.

(e) Except in the courses specified in subsection (f) of this section, second language acquisition methods, which may involve the use of the students' primary language, may be provided in any of the courses or electives required for promotion or graduation to assist the English learners to master the essential knowledge and skills for the required subject(s). The use of second language acquisition methods shall not impede the awarding of credit toward meeting promotion or graduation requirements.

(f) In subjects such as art, music, and physical education, English learners shall participate with their English-speaking peers in general education classes provided in the subjects. As noted in TEC, §29.055(d), elective courses included in the curriculum may be taught in a language other than English. The school district shall ensure that students enrolled in bilingual education and ESL programs have a meaningful opportunity to participate with other students in all extracurricular activities.

(g) The required bilingual education or ESL program shall be provided to every English learner with parental approval until such time that the student meets reclassification criteria as described in §89.1226(i) of this title (relating to Testing and Classification of Students) or graduates from high school.

Statutory Authority: The provisions of this §89.1210 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1210 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective March 5, 1999, 24 TexReg 1383; amended to be effective April 18, 2002, 27 TexReg 3107; amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

89.1215. Home Language Survey.

(a) School districts shall administer only one home language survey to each new student enrolling for the first time in a Texas public school in any grade from prekindergarten through Grade 12. School districts shall require that the survey be signed by the student's parent for each student in prekindergarten through Grade 8 or by the student in Grades 9-12 as permitted under the Texas Education Code, §29.056(a)(1). It is the school district's responsibility to ensure that the student's parent understands the language used in the survey and its implications. The original copy of the survey shall be kept in the student's permanent record.

(b) The home language survey shall be provided in English, Spanish, and Vietnamese; for students of other language groups, the home language survey shall be translated into the primary language whenever possible. The home language survey shall elicit one language answer to each of the following questions.

(1) "What language is used in the child's home most of the time?"

(2) "What language does the child use most of the time?"

(c) If the response on the home language survey indicates that a language other than English is used, the student shall be tested in accordance with §89.1226 of this title (relating to Testing and Classification of Students).

(d) For students previously enrolled in a Texas public school, the receiving district shall secure the student records, including the home language survey and language proficiency assessment committee documentation as described in §89.1220(l) of this title (relating to Language Proficiency Assessment Committee), as applicable. All attempts to contact the sending district to request records shall be documented. Multiple attempts to obtain the student's home language survey shall be made.

Statutory Authority: The provisions of this §89.1215 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1215 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

89.1220. Language Proficiency Assessment Committee.

(a) School districts shall by local board policy establish and operate a language proficiency assessment committee. The school district shall have on file policy and procedures for the selection, appointment, and training of members of the language proficiency assessment committee(s).

(b) The language proficiency assessment committee shall include an appropriately certified bilingual educator (for students served through a bilingual education program), an appropriately certified English as a second language (ESL) educator (for students served through an ESL program), a parent of an English learner participating in a bilingual or ESL program, and a campus administrator in accordance with Texas Education Code (TEC), §29.063.

(c) In addition to the three required members of the language proficiency assessment committee, the school district may add other trained members to the committee.

(d) No parent serving on the language proficiency assessment committee shall be an employee of the school district.

(e) A school district shall establish and operate a sufficient number of language proficiency assessment committees to enable them to discharge their duties within four weeks of the enrollment of English learners.

(f) All members of the language proficiency assessment committee, including parents, shall be acting for the school district and shall observe all laws and rules governing confidentiality of information concerning individual students. The school district shall be responsible for the orientation and training of all members, including the parents, of the language proficiency assessment committee.

(g) Upon their initial enrollment and at the end of each school year, the language proficiency assessment committee shall review all pertinent information on all English learners identified in accordance with §89.1226 of this title (relating to Testing and Classification of Students) and shall:

(1) designate the language proficiency level of each English learner in accordance with the guidelines issued pursuant to §89.1226(b)-(f) of this title;

(2) designate the level of academic achievement of each English learner;

(3) designate, subject to parental approval, the initial instructional placement of each English learner in the required program;

(4) facilitate the participation of English learners in other special programs for which they are eligible while ensuring full access to the language program services required under the TEC, §29.053; and

(5) reclassify students, at the end of the school year only, as English proficient in accordance with the criteria described in §89.1226(i) of this title.

(h) The language proficiency assessment committee shall give written notice to the student's parent, advising that the student has been classified as an English learner and requesting approval to place the student in the required bilingual education or ESL program not later than the 10th calendar day after the date of the student's classification in accordance with TEC, §29.056. The notice shall include information about the benefits of the bilingual education or ESL program for which the student has been recommended and that it is an integral part of the school program.

(i) Before the administration of the state criterion-referenced test each year, the language proficiency assessment committee shall determine the appropriate assessment option for each English learner as outlined in Chapter 101, Subchapter AA, of this title (relating to Commissioner's Rules Concerning the Participation of English Language Learners in State Assessments).

(j) Pending parental approval of an English learner's entry into the bilingual education or ESL program recommended by the language proficiency assessment committee, the school district shall place the student in the recommended program. Only English learners with parental approval who are receiving services will be included in the bilingual education allotment.

(k) The language proficiency assessment committee shall monitor the academic progress of each student who has met criteria for reclassification in accordance with TEC, §29.056(g), for the first two years after reclassification. If the student earns a failing grade in a subject in the foundation curriculum under TEC, §28.002(a)(1), during any grading period in the first two school years after the student is reclassified, the language proficiency assessment committee shall determine, based on the student's second language acquisition needs, whether the student may require intensive instruction or should be reenrolled in a bilingual education or ESL program. In accordance with TEC, §29.0561, the language proficiency assessment committee shall review the student's performance and consider:

(1) the total amount of time the student was enrolled in a bilingual education or ESL program;

(2) the student's grades each grading period in each subject in the foundation curriculum under TEC, §28.002(a)(1);

(3) the student's performance on each assessment instrument administered under TEC, §39.023(a) or (c);

(4) the number of credits the student has earned toward high school graduation, if applicable; and

(5) any disciplinary actions taken against the student under TEC, Chapter 37, Subchapter A (Alternative Settings for Behavior Management).

(l) The student's permanent record shall contain documentation of all actions impacting the English learner.

(1) Documentation shall include:

(A) the identification of the student as an English learner;

(B) the designation of the student's level of language proficiency;

(C) the recommendation of program placement;

(D) parental approval of entry or placement into the program;

(E) the dates of entry into, and placement within, the program;

(F) assessment information as outlined in Chapter 101, Subchapter AA, of this title;

(G) additional instructional interventions provided to address the specific language needs of the student;

(H) the date of reclassification and the date of exit from the program with parental approval;

(I) the results of monitoring for academic success, including students formerly classified as English learners, as required under the TEC, §29.063(c)(4); and

(J) the home language survey.

(2) Current documentation as described in paragraph (1) of this subsection shall be forwarded in the same manner as other student records to another school district in which the student enrolls.

(m) A school district may place or exit a student in a program without written approval of the student's parent if:

(1) the student is 18 years of age or has had the disabilities of minority removed;

(2) the parent provides approval through a phone conversation or e-mail that is documented in writing and retained; or

(3) an adult who the school district recognizes as standing in parental relation to the student provides written approval. This may include a foster parent or employee of a state or local governmental agency with temporary possession or control of the student.

Statutory Authority: The provisions of this §89.1220 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1220 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective March 5, 1999, 24 TexReg 1383; amended to be effective April 18, 2002, 27 TexReg 3107; amended to be effective September 17, 2007, 32 TexReg 6311; amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

§89.1226. Testing and Classification of Students.

(a) The single state-approved English language proficiency test for identification of English learners described in subsection (c) of this section shall be used as part of the standardized, statewide identification process.

(b) Within four weeks of initial enrollment in a Texas school, a student with a language other than English indicated on the home language survey shall be administered the state-approved English language proficiency test for identification as described in subsection (c) of this section and shall be identified as English learners and placed into the required bilingual education or ESL program in accordance with the criteria listed in subsection (f) of this section.

(c) For identifying English learners, school districts shall administer to each student who has a language other than English as identified on the home language survey:

(1) in prekindergarten through Grade 1, the listening and speaking components of the state-approved English language proficiency test for identification; and

(2) in Grades 2-12, the listening, speaking, reading, and writing components of the state-approved English language proficiency test for identification.

(d) School districts that provide a bilingual education program at the elementary grades shall administer a language proficiency test in the primary language of the student who is eligible to be served in the bilingual education program. If the primary language of the student is Spanish, the school district shall administer the Spanish version of the state-approved language proficiency test for identification. If a state-approved language proficiency test for identification is not available in the primary language of the student, the school district shall determine the student's level of proficiency using informal oral language assessment measures.

(e) All of the language proficiency testing shall be administered by professionals or paraprofessionals who are proficient in the language of the test and trained in the language proficiency testing requirements of the test publisher.

(f) For entry into a bilingual education or ESL program, a student shall be identified as an English learner using the following criteria.

(1) In prekindergarten through Grade 1, the student's score(s) from the listening and/or speaking components on the state-approved English language proficiency test for identification is/are below the level designated for indicating English proficiency.

(2) In Grades 2-12, the student's score(s) from the listening, speaking, reading, and/or writing components on the state-approved English language proficiency test for identification is/are below the level designated for indicating English proficiency.

(g) A student shall be identified as an English learner if the student's ability in English is so limited that the English language proficiency assessment described in subsection (c) of this section cannot be administered.

(h) The language proficiency assessment committee in conjunction with the admission, review, and dismissal (ARD) committee shall identify a student as an English learner if the student's ability in English is so limited or the student's disabilities are so severe that the English language proficiency assessment described in subsection (c) of this section cannot be administered. The decision for entry into a bilingual education or ESL program shall be determined by the language proficiency assessment committee in conjunction with the ARD committee in accordance with §89.1220(f) of this title (relating to Language Proficiency Assessment Committee).

(i) An English learner may be reclassified as English proficient only at the end of the school year in which a student would be able to participate equally in a general education, all-English instructional program. This determination shall be based upon all of the following:

(1) a proficiency rating on the state-approved English language proficiency test for reclassification that is designated for indicating English proficiency in each the four language domains (listening, speaking, reading, and writing);

(2) passing standard met on the reading assessment instrument under the Texas Education Code (TEC), §39.023(a), or, for students at grade levels not assessed by the aforementioned reading assessment instrument, a score at or above the 40th percentile on both the English reading and the English language arts sections of the state-approved norm-referenced standardized achievement instrument; and

(3) the results of a subjective teacher evaluation using the state's standardized rubric.

(j) An English learner may not be reclassified as English proficient in prekindergarten or kindergarten. A school district must ensure that English learners are prepared to meet academic standards required by the TEC, §28.0211.

(k) An English learner may not be reclassified as English proficient if the language proficiency assessment committee has recommended designated supports or accommodations on the state reading assessment instrument based on the student's second language acquisition needs.

(l) For English learners who are also eligible for special education services, the standardized process for English learner reclassification is followed in accordance with applicable provisions of subsection (i) of this section. However, annual meetings to review student progress and make recommendations for reclassification must be made in all instances by the language proficiency assessment committee in conjunction with the ARD committee in accordance with §89.1230(b) of this title (relating to Eligible Students with Disabilities). Additionally, the language proficiency assessment committee in conjunction with the ARD committee shall implement assessment procedures that differentiate between language proficiency and disabling conditions in accordance with §89.1230(a) of this title.

(m) For an English learner with a significant cognitive disability, the language proficiency assessment committee in conjunction with the ARD committee may determine that the state's English language proficiency assessment for reclassification is not appropriate because of the nature of the student's disabling condition. In these cases, the language proficiency assessment committee in conjunction with the ARD committee may recommend that the student take the state's alternate English language proficiency assessment, determine an appropriate performance standard requirement for reclassification by language domain under subsection (i)(1) of this section, and utilize the results of a subjective teacher evaluation using the state's standardized alternate rubric.

(n) Notwithstanding §101.101 of this title (relating to Group-Administered Tests), all tests used for the purpose of identification, reclassification, and placement of students and approved by the TEA must be re-normed at least every eight years.

Statutory Authority: The provisions of this §89.1226 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1226 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective April 18, 2002, 27 TexReg 3107; amended to be effective September 17, 2007, 32 TexReg 6311; amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 1, 2019, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

89.1227. Minimum Requirements for Dual Language Immersion Program Model.

(a) A dual language immersion program model shall address all curriculum requirements specified in Chapter 74, Subchapter A, of this title (relating to Required Curriculum) to include foundation and enrichment areas, English language proficiency standards, and college and career readiness standards.

(b) A dual language immersion program model shall be a full-time program of academic instruction in English and another language.

(c) A dual language immersion program model shall provide equitable resources in English and the additional program language whenever possible.

(d) A minimum of 50% of instructional time shall be provided in the language other than English for the duration of the program.

(e) Implementation shall:

(1) begin at prekindergarten or kindergarten, as applicable;

(2) continue without interruption incrementally through the elementary grades; and

(3) consider expansion to middle school and high school whenever possible.

(f) A dual language immersion program model shall be developmentally appropriate and based on current best practices identified in research.

Statutory Authority: The provisions of this §89.1227 issued under the Texas Education Code, §§29.051, 29.053, 29.054, 29.055, 29.056, 29.0561, 29.057, 29.058, 29.059, 29.060, 29.061, 29.062, 29.063, 29.064, and 29.066.

Source: The provisions of this §89.1227 adopted to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731.

89.1228. Two-Way Dual Language Immersion Program Model Implementation.

(a) Student enrollment in a two-way dual language immersion program model is optional for English proficient students in accordance with §89.1233(a) of this title (relating to Participation of English Proficient Students).

(b) A two-way dual language immersion program model shall fully disclose candidate selection criteria and ensure that access to the program is not based on race, creed, color, religious affiliation, age, or disability.

(c) A school district implementing a two-way dual language immersion program model shall develop a policy on enrollment and continuation for students in this program model. The policy shall address:

(1) eligibility criteria;

(2) program purpose;

(3) the district's commitment to providing equitable access to services for English learners;

(4) grade levels in which the program will be implemented;

(5) support of program goals as stated in §89.1210 of this title (relating to Program Content and Design); and

(6) expectations for students and parents.

(d) A school district implementing a two-way dual language immersion program model shall obtain written parental approval as follows.

(1) For English learners, written parental approval is obtained in accordance with §89.1240 of this title (relating to Parental Authority and Responsibility).

(2) For English proficient students, written parental approval is obtained through a school district-developed process.

(e) A school district implementing a two-way dual language immersion program model shall determine the appropriate assessment option for program participants as follows.

(1) For English learners, the language proficiency assessment committee shall convene before the administration of the state criterion-referenced test each year to determine the appropriate assessment option for each English learner in accordance with §89.1220(i) of this title (relating to Language Proficiency Assessment Committee).

(2) For English proficient students, the appropriate assessment option for the administration of the state criterion-referenced test each year is determined through a school district-developed process.

Statutory Authority: The provisions of this §89.1228 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1228 adopted to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

89.1229. General Standards for Recognition of Dual Language Immersion Program Models.

(a) School recognition. A school district may recognize one or more of its schools that implement an exceptional dual language immersion program model if the school meets all of the following criteria.

(1) The school must meet the minimum requirements stated in §89.1227 of this title (relating to Minimum Requirements for Dual Language Immersion Program Model).

(2) The school must receive an acceptable performance rating in the state accountability system.

(3) The school must not be identified for any stage of intervention for the district's bilingual and/or English as a second language program under the performance-based monitoring system.

(b) Student recognition. A student participating in a dual language immersion program model or any other state-approved bilingual or ESL program model may be recognized by the program and its local school district board of trustees by earning a performance acknowledgement in accordance with §74.14 of this title (relating to Performance Acknowledgments).

Statutory Authority: The provisions of this §89.1229 issued under the Texas Education Code, §§29.051, 29.053, 29.054, 29.055, 29.056, 29.0561, 29.057, 29.058, 29.059, 29.060, 29.061, 29.062, 29.063, 29.064, and 29.066.

Source: The provisions of this §89.1229 adopted to be effective July 15, 2018, 43 TexReg 4731.

89.1230. Eligible Students with Disabilities.

(a) School districts shall implement assessment procedures that differentiate between language proficiency and disabling conditions in accordance with Subchapter AA of this chapter (relating to Commissioner's Rules Concerning Special Education Services) and shall establish placement procedures that ensure that placement in a bilingual education or English as a second language program is not refused solely because the student has a disability.

(b) Language proficiency assessment committee members shall meet in conjunction with admission, review, and dismissal committee members to review and provide recommendations with regard to the educational needs of each English learner who qualifies for services in the special education program.

Statutory Authority: The provisions of this §89.1230 issued under the Texas Education Code, §§29.051, 29.053, 29.054, 29.055, 29.056, 29.0561, 29.057, 29.058, 29.059, 29.060, 29.061, 29.062, 29.063, 29.064, and 29.066.

Source: The provisions of this §89.1230 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective March 5, 1999, 24 TexReg 1383; amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731.

89.1233. Participation of English Proficient Students.

(a) School districts shall fulfill their obligation to provide required bilingual program services to English learners in accordance with Texas Education Code (TEC), §29.053.

(b) School districts may enroll English proficient students in the bilingual education program or the English as a second language program in accordance with TEC, §29.058.

(c) The number of participating English proficient students shall not exceed 40% of the number of students enrolled in the program district-wide in accordance with TEC, §29.058.

Statutory Authority: The provisions of this §89.1233 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1233 adopted to be effective March 5, 1999, 24 TexReg 1383amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

89.1235. Facilities.

Bilingual education and English as a second language (ESL) programs shall be located in the public schools of the school district with equitable access to all educational resources rather than in separate facilities. In order to provide the required bilingual education or ESL programs, school districts may concentrate the programs at a limited number of facilities within the school district. Recent immigrant English learners shall not remain enrolled in newcomer centers for longer than two years.

Statutory Authority: The provisions of this §89.1235 issued under the Texas Education Code, §§29.051, 29.053, 29.054, 29.055, 29.056, 29.0561, 29.057, 29.058, 29.059, 29.060, 29.061, 29.062, 29.063, 29.064, and 29.066.

Source: The provisions of this §89.1235 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731.

89.1240. Parental Authority and Responsibility.

(a) The parent shall be notified in English and the parent's primary language that their child has been classified as an English learner and recommended for placement in the required bilingual education or English as a second language (ESL) program. The parent shall be provided information describing the bilingual education or ESL program recommended, its benefits to the student, and its being an integral part of the school program to ensure that the parent understands the purposes and content of the program. The entry or placement of a student in the bilingual education or ESL program must be approved in writing by the student's parent in order to have the student included in the bilingual education allotment. The parent's approval shall be considered valid for the student's continued participation in the required bilingual education or ESL program until the student meets the reclassification criteria described in §89.1226(i) of this title (relating to Testing and Classification of Students), the student graduates from high school, or a change occurs in program placement.

(b) The school district shall give written notification to the student's parent of the student's reclassification as English proficient and his or her exit from the bilingual education or ESL program and acquire written approval as required under the Texas Education Code, §29.056(a). Students meeting reclassification requirements may continue in the bilingual education or ESL program with parental approval.

(c) The parent of a student enrolled in a school district that is required to offer bilingual education or ESL programs may appeal to the commissioner of education if the school district fails to comply with the law or the rules. Appeals shall be filed in accordance with Chapter 157 of this title (relating to Hearings and Appeals).

Statutory Authority: The provisions of this §89.1240 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1240 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective April 18, 2002, 27 TexReg 3107; amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

89.1245. Staffing and Staff Development.

(a) School districts shall take all reasonable affirmative steps to assign appropriately certified teachers to the required bilingual education and English as a second language (ESL) programs in accordance with the Texas Education Code (TEC), §29.061, concerning bilingual education and ESL program teachers. School districts that are unable to secure a sufficient number of appropriately certified bilingual education and/or ESL teachers to provide the required programs may request activation of the appropriate permits in accordance with Chapter 230 of this title (relating to Professional Educator Preparation and Certification).

(b) School districts that are unable to employ a sufficient number of teachers, including part-time teachers, who meet the requirements of subsection (a) of this section for the bilingual education and ESL programs shall apply on or before November 1 for an exception to the bilingual education program as provided in §89.1207(a) of this title (relating to Bilingual Education Exceptions and English as a Second Language Waivers) or a waiver of the certification requirements in the ESL program as provided in §89.1207(b) of this title as needed.

(c) Teachers assigned to the bilingual education program and/or ESL program may receive salary supplements as authorized by the TEC, §42.153.

(d) School districts may compensate teachers and aides assigned to bilingual education and ESL programs for participation in professional development designed to increase their skills or lead to bilingual education or ESL certification.

(e) The commissioner of education shall encourage school districts to cooperate with colleges and universities to provide training for teachers assigned to the bilingual education and/or ESL programs.

(f) The Texas Education Agency shall develop, in collaboration with education service centers, resources for implementing bilingual education and ESL training programs. The materials shall provide a framework for:

(1) developmentally appropriate bilingual education programs for early childhood through the elementary grades;

(2) affectively, linguistically, and cognitively appropriate instruction in bilingual education and ESL programs in accordance with §89.1210(b)(1)-(3) of this title (relating to Program Content and Design); and

(3) developmentally appropriate programs for English learners identified with multiple needs and/or exceptionalities.

Statutory Authority: The provisions of this §89.1245 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1245 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective March 5, 1999, 24 TexReg 1383; amended to be effective April 18, 2002, 27 TexReg 3107; amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

89.1250. Required Summer School Programs.

Summer school programs that are provided under the Texas Education Code (TEC), §29.060, for English learners who will be eligible for admission to kindergarten or Grade 1 at the beginning of the next school year shall be implemented in accordance with this section.

(1) Purpose of summer school programs.

(A) English learners shall have an opportunity to receive special instruction designed to prepare them to be successful in kindergarten and Grade 1.

(B) Instruction shall focus on language development and essential knowledge and skills appropriate to the level of the student.

(C) The program shall address the affective, linguistic, and cognitive needs of the English learners in accordance with §89.1210(b) of this title (relating to Program Content and Design).

(2) Establishment of, and eligibility for, the program.

(A) Each school district required to offer a bilingual or English as a second language (ESL) program in accordance with the TEC, §29.053, shall offer the summer program.

(B) To be eligible for enrollment:

(i) a student must be eligible for admission to kindergarten or to Grade 1 at the beginning of the next school year and must be an English learner; and

(ii) a parent must have approved placement of the English learner in the required bilingual or ESL program following the procedures described in §89.1220(g) of this title (relating to Language Proficiency Assessment Committee) and §89.1226(b)-(f) of this title (relating to Testing and Classification of Students).

(3) Operation of the program.

(A) Enrollment is optional.

(B) The program shall be operated on a one-half day basis, a minimum of three hours each day, for eight weeks or the equivalent of 120 hours of instruction.

(C) The student/teacher ratio for the program district-wide shall not exceed 18 to one.

(D) A school district is not required to provide transportation for the summer program.

(E) Teachers shall possess certification as required in the TEC, §29.061, and §89.1245 of this title (relating to Staffing and Staff Development).

(F) Reporting of student progress shall be determined by the board of trustees. A summary of student progress shall be provided to parents at the conclusion of the program. This summary shall be provided to the student's teacher at the beginning of the next regular school term.

(G) A school district may join with other school districts in cooperative efforts to plan and implement programs.

(H) The summer school program shall not substitute for any other program required to be provided during the regular school term, including those required in the TEC, §29.153.

(4) Funding and records for programs.

(A) A school district shall use state and local funds for program purposes.

(i) Available funds appropriated by the legislature for the support of summer school programs provided under the TEC, §29.060, shall be allocated to school districts in accordance with this subsection.

(ii) Funding for the summer school program shall be on a unit basis in such an allocation system to ensure a pupil/teacher ratio of not more than 18 to one. The numbers of students required to earn units shall be established by the commissioner. The allotment per unit shall be determined by the commissioner based on funds available.

(iii) Any school district required to offer the program under paragraph (2)(A) of this subsection that has fewer than 10 students district-wide desiring to participate is not required to operate the program. However, those school districts must document that they have encouraged students' participation in multiple ways.

(iv) Payment to school districts for summer school programs shall be based on units employed. This information must be submitted in a manner and according to a schedule established by the commissioner in order for a school district to be eligible for funding.

(B) A school district shall maintain records of eligibility, attendance, and progress of students.

Statutory Authority: The provisions of this §89.1250 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1250 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective April 18, 2002, 27 TexReg 3107; amended to be effective February 17, 2005, 30 TexReg 709; amended to be effective September 17, 2007, 32 TexReg 6311; amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

89.1265. Evaluation.

(a) All school districts required to conduct a bilingual education or English as a second language (ESL) program shall conduct an annual evaluation in accordance with Texas Education Code (TEC), §29.053, collecting a full range of data to determine program effectiveness to ensure student academic success. The annual evaluation report shall be presented to the board of trustees before November 1 of each year and the report shall be retained at the school district level in accordance with TEC, §29.062.

(b) Annual school district reports of educational performance shall reflect:

(1) the academic progress in the language(s) of instruction for English learners;

(2) the extent to which English learners are becoming proficient in English;

(3) the number of students who have been reclassified as English proficient; and

(4) the number of teachers and aides trained and the frequency, scope, and results of the professional development in approaches and strategies that support second language acquisition.

(c) In addition, for those school districts that filed in the previous year and/or will be filing a bilingual education exception and/or ESL waiver in the current year, the annual district report of educational performance shall also reflect:

(1) the number of teachers for whom an exception or waiver was/is being filed;

(2) the number of teachers for whom an exception or waiver was filed in the previous year who successfully obtained certification; and

(3) the frequency and scope of a comprehensive professional development plan, implemented as required under §89.1207 of this title (relating to Bilingual Education Exceptions and English as a Second Language Waivers), and results of such plan if an exception and/or waiver was filed in the previous school year.

(d) School districts shall report to parents the progress of their child in acquiring English as a result of participation in the program offered to English learners.

(e) Each school year, the principal of each school campus, with the assistance of the campus level committee, shall develop, review, and revise the campus improvement plan described in the TEC, §11.253, for the purpose of improving student performance for English learners.

Statutory Authority: The provisions of this §89.1265 issued under the Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.

Source: The provisions of this §89.1265 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective April 18, 2002, 27 TexReg 3107; amended to be effective May 28, 2012, 37 TexReg 3822; amended to be effective July 15, 2018, 43 TexReg 4731; amended to be effective April 14, 2020, 45 TexReg 2415.

# data[].attributes.attachment_link.description
Chapter 89. Adaptations for Special Populations Subchapter BB. Commissioner's Rules Concerning State Plan for Educating English Learners 89.1201. Policy. (a) It is the policy of the state that every student in the state who has a primary language other than English and who is identified as an English learner shall be provided a full opportunity to participate in a bilingual education or English as a second language (ESL) program, as required in the Texas Education Code (TEC), Chapter 29, Subchapter B.

# data[].attributes.body
Federal Judicial Law
(Lau v. Nichols, 414 US 563 (1974))

Court unanimously decided that failing to provide sufficient supplemental language instruction violated the Civil Rights Act of 1964

Students argued that this failure indicated an unequal educational opportunity.

Lack of supplemental language instruction prevented students from having the opportunity and ability to participate in the school system

As a result of this case,  Home Language Surveys and Bilingual Education were offered in an effort to resolve

Giving all students the exact same resources, (textbooks, supplies, instructors, lessons), does NOT provide all students an equal opportunity.

# data[].attributes.attachment_link.readable_text
LAU ET AL. v. NICHOLS ET AL.
No. 72-6520
SUPREME COURT OF THE UNITED STATES
414 U.S. 563
December 10, 1973, Argued
January 21, 1974, Decided

PRIOR HISTORY:

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

DISPOSITION:

483 F.2d 791, reversed and remanded.

SYLLABUS:

The failure of the San Francisco school system to provide English language instruction to approximately 1,800 students of Chinese ancestry who do not speak English, or to provide them with other adequate instructional procedures, denies them a meaningful opportunity to participate in the public educational program and thus violates ï¿½ 601 of the Civil Rights Act of 1964, which bans discrimination based "on the ground of race, color, or national origin," in "any program or activity receiving Federal financial assistance," and the implementing regulations of the Department of Health, Education, and Welfare. Pp. 565-569.

Douglas, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Rehnquist, JJ., joined. Stewart, J., filed an opinion concurring in the result, in which Burger, C. J., and Blackmun, J., joined, post, p. 569. White, J., concurred in the result. Blackmun, J., filed an opinion concurring in the result, in which Burger, C. J., joined, post, p. 571.

Opinions

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

The San Francisco, California, school system was integrated in 1971 as a result of a federal court decree, 339 F.Supp. 1315. See Lee v. Johnson, 404 U.S. 1215. The District Court found that there are 2,856 students of Chinese ancestry in the school system who do not speak English. Of those who have that language deficiency, about 1,000 are given supplemental courses in the English language. n1 About 1,800, however, do not receive that instruction.

note1 A report adopted by the Human Rights Commission of San Francisco and submitted to the Court by respondents after oral argument shows that, as of April 1973, there were 3,457 Chinese students in the school system who spoke little or no English. The document further showed 2,136 students enrolled in Chinese special instruction classes, but at least 429 of the enrollees were not Chinese but were included for ethnic balance. Thus, as of April 1973, no more than 1,707 of the 3,457 Chinese students needing special English instruction were receiving it.

This class suit brought by non-English-speaking Chinese students against officials responsible for the operation of the San Francisco Unified School District seeks relief against the unequal educational opportunities, which are alleged to violate, inter alia, the Fourteenth Amendment. No specific remedy is urged upon us. Teaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instructions to this group in Chinese is another. There may be others. Petitioners ask only that the Board of Education be directed to apply its expertise to the problem and rectify the situation. The District Court denied relief. The Court of Appeals affirmed, holding that there was no violation of the Equal Protection Clause of the Fourteenth Amendment or of ï¿½ 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. ï¿½ 2000d, which excludes from participation in federal financial assistance, recipients of aid which discriminate against racial groups, 483 F.2d 791. One judge dissented. A hearing en banc was denied, two judges dissenting. Id., at 805. We granted the petition for certiorari because of the public importance of the question presented, 412 U.S. 938.

The Court of Appeals reasoned that "every student brings to the starting line of his educational career different advantages and disadvantages caused in part by social, economic and cultural background, created and continued completely apart from any contribution by the school system," 483 F.2d, at 797. Yet in our view the case may not be so easily decided. This is a public school system of California and ï¿½ 71 of the California Education Code states that "English shall be the basic language of instruction in all schools." That section permits a school district to determine "when and under what circumstances instruction may be given bilingually." That section also states as "the policy of the state" to insure "the mastery of English by all pupils in the schools." And bilingual instruction is authorized "to the extent that it does not interfere with the systematic, sequential, and regular instruction of all pupils in the English language."

Moreover, ï¿½ 8573 of the Education Code provides that no pupil shall receive a diploma of graduation from grade 12 who has not met the standards of proficiency in "English," as well as other prescribed subjects. Moreover, by ï¿½ 12101 of the Education Code (Supp. 1973) children between the ages of six and 16 years are (with exceptions not material here) "subject to compulsory full-time education."

Under these state-imposed standards 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.

Basic English skills are at the very core of what these public schools teach. Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired those basic skills is to make a mockery of public education. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful. We do not reach the Equal Protection Clause argument which has been advanced but rely solely on ï¿½ 601 of the Civil Rights Act of 1964, 42 U. S. C. ï¿½ 2000d, to reverse the Court of Appeals.

That section bans discrimination based "on the ground of race, color, or national origin," in "any program or activity receiving Federal financial assistance." The school district involved in this litigation receives large amounts of federal financial assistance. The Department of Health, Education, and Welfare (HEW), which has authority to promulgate regulations prohibiting discrimination in federally assisted school systems, 42 U. S. C. ï¿½ 2000d-1, in 1968 issued one guideline that "school systems are responsible for assuring that students of a particular race, color, or national origin are not denied the opportunity to obtain the education generally obtained by other students in the system." 33 Fed. Reg. 4956. In 1970 HEW made the guidelines more specific, requiring school districts that were federally funded "to rectify the language deficiency in order to open" the instruction to students who had "linguistic deficiencies," 35 Fed. Reg. 11595.

By ï¿½ 602 of the Act HEW is authorized to issue rules, regulations, and orders n2 to make sure that recipients of federal aid under its jurisdiction conduct any federally financed projects consistently with ï¿½ 601. HEW's regulations, 45 CFR ï¿½ 80.3 (b)(1), specify that the recipients may not

"(ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;
. . . .
"(iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program."

note2 Section 602 provides:
"Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. . . ." 42 U. S. C. ï¿½ 2000d-1.

Discrimination among students on account of race or national origin that is prohibited includes "discrimination . . . in the availability or use of any academic . . . or other facilities of the grantee or other recipient." Id., ï¿½ 80.5 (b).

Discrimination is barred which has that effect even though no purposeful design is present: a recipient "may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination" or have "the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin." Id., ï¿½ 80.3 (b)(2).

It seems obvious that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from respondents' school system which denies them a meaningful opportunity to participate in the educational program -- all earmarks of the discrimination banned by the regulations. n3 In 1970 HEW issued clarifying guidelines, 35 Fed. Reg. 11595, which include the following:

note3 And see Report of the Human Rights Commission of San Francisco, Bilingual Education in the San Francisco Public Schools, Aug. 9, 1973.

"Where 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."

"Any ability grouping or tracking system employed by the school system to deal with the special language skill needs of national origin-minority group children must be designed to meet such language skill needs as soon as possible and must not operate as an educational deadend or permanent track." Respondent school district contractually agreed to "comply with title VI of the Civil Rights Act of 1964 . . . and all requirements imposed by or pursuant to the Regulation" of HEW (45 CFR pt. 80) which are "issued pursuant to that title . . ." and also immediately to "take any measures necessary to effectuate this agreement." The Federal Government has power to fix the terms on which its money allotments to the States shall be disbursed. Oklahoma v. CSC, 330 U.S. 127, 142-143. Whatever may be the limits of that power, Steward Machine Co. v. Davis, 301 U.S. 548, 590 et seq., they have not been reached here. Senator Humphrey, during the floor debates on the Civil Rights Act of 1964, said: n4

note4 110 Cong. Rec. 6543 (Sen. Humphrey, quoting from President Kennedy's message to Congress, June 19, 1963).

"Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination." We accordingly reverse the judgment of the Court of Appeals and remand the case for the fashioning of appropriate relief.

Reversed and remanded.

MR. JUSTICE WHITE concurs in the result.

Concurring Opinions

MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in the result.

It is uncontested that more than 2,800 schoolchildren of Chinese ancestry attend school in the San Francisco Unified School District system even though they do not speak, understand, read, or write the English language, and that as to some 1,800 of these pupils the respondent school authorities have taken no significant steps to deal with this language deficiency. The petitioners do not contend, however, that the respondents have affirmatively or intentionally contributed to this inadequacy, but only that they have failed to act in the face of changing social and linguistic patterns. Because of this laissez-faire attitude on the part of the school administrators, it is not entirely clear that ï¿½ 601 of the Civil Rights Act of 1964, 42 U. S. C. ï¿½ 2000d, standing alone, would render illegal the expenditure of federal funds on these schools. For that section provides that "no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

On the other hand, the interpretive guidelines published by the Office for Civil Rights of the Department of Health, Education, and Welfare in 1970, 35 Fed. Reg. 11595, clearly indicate that affirmative efforts to give special training for non-English-speaking pupils are required by Tit. VI as a condition to receipt of federal aid to public schools:

"Where 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." n1

note1 These guidelines were issued in further clarification of the Department's position as stated in its regulations issued to implement Tit. VI, 45 CFR pt. 80. The regulations provide in part that no recipient of federal financial assistance administered by HEW may "Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program; [or] "Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program." 45 CFR ï¿½ 80.3 (b)(1)(ii), (iv).

The critical question is, therefore, whether the regulations and guidelines promulgated by HEW go beyond the authority of ï¿½ 601. n2 Last Term, in Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, we held that the validity of a regulation promulgated under a general authorization provision such as ï¿½ 602 of Tit. VI n3 "will be sustained so long as it is 'reasonably related to the purposes of the enabling legislation.' Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 280-281 (1969)." I think the guidelines here fairly meet that test. Moreover, in assessing the purposes of remedial legislation we have found that departmental regulations and "consistent administrative construction" are "entitled to great weight." Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 210; Griggs v. Duke Power Co., 401 U.S. 424, 433-434; Udall v. Tallman, 380 U.S. 1. The Department has reasonably and consistently interpreted ï¿½ 601 to require affirmative remedial efforts to give special attention to linguistically deprived children.

note2 The respondents do not contest the standing of the petitioners to sue as beneficiaries of the federal funding contract between the Department of Health, Education,and Welfare and the San Francisco Unified School District.

note3 Section 602, 42 U. S. C. ï¿½ 2000d-1, provides in pertinent part:
"Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. . . ."

The United States as amicus curiae asserts in its brief, and the respondents appear to concede, that the guidelines were issued pursuant to ï¿½ 602.

For these reasons I concur in the result reached by the Court.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in the result.

I join MR. JUSTICE STEWART'S opinion and thus I, too, concur in the result. Against the possibility that the Court's judgment may be interpreted too broadly, I stress the fact that the children with whom we are concerned here number about 1,800. This is a very substantial group that is being deprived of any meaningful schooling because the children cannot understand the language of the classroom. We may only guess as to why they have had no exposure to English in their preschool years. Earlier generations of American ethnic groups have overcome the language barrier by earnest parental endeavor or by the hard fact of being pushed out of the family or community nest and into the realities of broader experience.

I merely wish to make plain that when, in another case, we are concerned with a very few youngsters, or with just a single child who speaks only German or Polish or Spanish or any language other than English, I would not regard today's decision, or the separate concurrence, as conclusive upon the issue whether the statute and the guidelines require the funded school district to provide special instruction. For me, numbers are at the heart of this case and my concurrence is to be understood accordingly.

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Overview of Lau v. Nichols decision of the United States Supreme Court.

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Slide 9: Bilingual Education and  Special Language Programs

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Slide 9: Bilingual Education and  Special Language Programs

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State Constitutional Law
(Tex. Const. art. 7, §29.051 .)

While this law refers to the Texas Public School System, it is essential that instructors be aware of the possible instruction program an ELL student is coming from when enrolled in a freshman English Composition course.

English is certified as the language of the State of Texas

Schools are required to provide students with access to programs dedicated to providing guidance and instruction in writing, speaking, and reading English

Instruction only provided in English is considered inadequate

language programs must provide students with tools and instruction to learn English as well as integrate ELL students into the standard curriculum

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Texas A&M University.  Texas A&M University Student Rules., Part I, §4. Retrieved from https://student-rules.tamu.edu/academicrules/

Texas A&M University has a policy regarding ELL students establishing that any college within the university may require  students to take an English Proficiency exam. Remedial coursework may be required and approved by the college's dean depending on the student's performance on the proficiency exam.

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(ACPA - College Student Educators International, 2006)

Item 2.12 in the ACPA’s “Statement of Ethical Principles and Standards” states that student affairs professionals must develop multicultural skills and knowledge and must exercise this multicultural competence when interacting with students (ACPA - College Student Educators International, 2006).

In relation to teaching ELL students, it is imperative that instructors become multiculturally competent and provide ELL students with equal attention and assistance. Because ELL students come from a variety of cultural backgrounds, English language competencies, and experiences, instructors must abide by this ethical principle to provide ELL students with an equal opportunity for education.

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As a 3rd-year writing center consultant, I have tutored many ELL students seeking advice and feedback on their written and spoken communication skills. However, through my research into the legal and ethical principles applying to ELL students, I now understand the actions and procedures instructors must perform and consider when instructing ELL students. I will soon begin teaching a 1301 English Composition course, and I have been informed that I will likely have international students in my class that may be learning English as their second language, so I will be keeping these principles in mind while also remaining cognizant of the actions I can take as an instructor to provide my students with equal educational access.

Because of my prior interactions and discussions with ELL students attending a university, I feel that these legal and ethical principles are necessary in order to facilitate an educational environment with equal access to opportunities. Through the years, I have heard ELL students discuss the hardships they have faced in higher education pertaining to understanding assignments and receiving equal and understanding treatment from professors, but now I am aware of the resources and legal rights provided to ELL students. As a future instructor, these legal principles and guidelines that universities must abide by will allow me to provide my students with access to resources they may utilize in order to be successful in their educational pursuits.

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Slide 13: Recommendations and Best Practices

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Slide 13: Recommendations and Best Practices

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Faculty may attend ELL instruction training and seminars.

The university may establish a system for receiving and addressing faculty questions and concerns regarding the instruction of ELL students .

In English courses, encourage freewriting in one's native language to help students generate ideas and take down the barrier of language.

The university may focus on student outreach and informing ELL students of their legal rights.

Provide ELL students the option of courses with smaller class sizes. This could help ensure that ELL students receive equal assistance and have the opportunity to communicate any difficulties with a professor.

Include resources pertaining to ELL students within the syllabus so students may be aware of these programs and feel comfortable utilizing them.

Provide forums and/or surveys for open conversation where ELL students may discuss their higher education experience. This may provide universities and instructors with the knowledge of what is working well and what still needs to be improved.

Keep faculty informed regarding changes to standardized testing for ELL students, and create clear criteria for deciding whether an English Proficiency exam needs to be administered.