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American School Counselor Association [ASCA]. (2016). ASCA ethical standards for school counselors. Retrieved from https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf

American School Counselor Association [ASCA]. (2015). The School Counselor and Cultural Diversity. Retrieved from https://www.schoolcounselor.org/asca/media/asca/PositionStatements/PS_CulturalDiversity.pdf

Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981)

DeOliveira, L, & Morris, C. (2015). Preparing school counselors for English language learners. Alexandria, VA: TESOL Press.

Elementary and Secondary Education Act of 1965, as amended, Title III, § 3111–3141; 20 U.S.C. 6821–6871

Irving ISD Policy. (2016). FB(LOCAL) – Equal educational opportunity. Retrieved from https://pol.tasb.org/Policy/Download/367?filename=FB(LOCAL).html&title=EQUAL%20EDUCATIONAL%20OPPORTUNITY&subtitle=

Mathewson, T. G. (2016). 4 ways ESSA will change how schools serve ELL students. Retrieved from https://www.educationdive.com/news/4-ways-essa-will-change-how-schools-serve-ell-students/428266/.

Modan, N. (2019). Report offers recommendations to improve programs for English learners with disabilities. Retrieved from https://www.educationdive.com/news/report-offers-recommendations-to-improve-programs-for-english-learners-with/559877/

Policy, 19. Tex. Admin. Code § 89.1201

U.S. Const. Amend. XIV

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Slide 4 Current News Articles: 4 ways ESSA will change how schools serve ELL students by Tara García Mathewson. 

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Slide 4 Current News Articles: 4 ways ESSA will change how schools serve ELL students by Tara García Mathewson. 

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This article discusses four major changes made in the rewrite of the No Child Left Behind Act which is now called Every Student Succeeds Act (ESSA). These four key modifications will benefit students who do not speak English.

Classifying English learners ESSA now requires states to have a more uniform process for “identifying English learners, assigning them services, and, later, moving them out of EL classes and into general education” (Mathewson, 2016, para 3).

Standardized testing Under the ESSA districts now do not have to count the pass rates of newcomer students who do not speak English in their accountability. Districts can use growth to measure accountability for these students until year three of them being in the country.

English proficiency ESSA requires schools to build English proficiency rates into their accountability for Title I. This will give more funding since it is tied to Title I which provides support for low-income students on a broad scale. It also will help show the progress these students are making.

Reporting ESSA made several changes in reporting including subgroup accountability. This means “a school cannot get a high rating if one of its subgroups is failing across the board” (para 14). ESSA requires that if a specific group is not doing well consistently, there must be a plan for improvement even if the rest of the school is preforming well. The English learner subgroup will also be broken up so that English learner students with disabilities are separated from the rest of the population when it comes to accountability.

Schools will also be required to report the “number of long-term English learners who continue to receive services for more than five years” (para 18). This will help schools understand the effectiveness of programs and instruction for English learners.

Mathewson, T. G. (2016). 4 ways ESSA will change how schools serve ELL students. Retrieved from https://www.educationdive.com/news/4-ways-essa-will-change-how-schools-serve-ell-students/428266/.

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The Elementary and Secondary Education Act, first passed in 1965, is at its heart a piece of civil rights legislation. Its whole purpose is to provide federal funds to states and districts to overcome disadvantages faced by students who have traditionally fallen through the cracks or been intentionally ignored.

In the latest rewrite of the law, which turned No Child Left Behind into Every Student Succeeds, there are some key provisions that shift the way schools will have to identify, serve, test and report information about students who do not speak English.

In four categories in particular, schools will have to make significant changes.

Classifying English learners

The Every Student Succeeds Act requires states to create a uniform process for identifying English learners, assigning them services, and, later, moving them out of EL classes and into general education. Under No Child Left Behind, districts made their own processes, which resulted in a wide variety of criteria for entering and exiting English learner services across districts. The new law creates a level of consistency - at least at the state level, if not nationally.

This is one of the many areas in which state education departments will have to create new systems. School and district officials should be participating in comment periods and listening tours to impact their final state regulations.

Standardized testing

A major victory of No Child Left Behind for the civil rights community was its requirement for every student to be tested every year from third grade through eighth grade and once more in high school. Because NCLB said 95% of students must take the test for the results to be valid, schools could not ignore disadvantaged student populations to focus on easier-to-teach or higher-achieving students.

When it comes to English learners, the testing provisions are controversial. Civil rights groups do not want these students to be ignored, but they also do not want them or their schools to be punished when these students do poorly on a test in English if they don't speak the language.

Delia Pompa, senior fellow for education policy at the Migration Policy Institute, says ESSA frees districts from counting the pass rates of newly arrived immigrant students who don't speak English in their accountability frameworks. Instead, districts can use growth as a measure of academic progress for accountability purposes for students' first two years in the country. By year three, however, immigrant students must be assessed the same way as their peers.

No Child Left Behind-era regulations allowed schools to exempt some students, but ESSA codified that ability into law. And offering the option of measuring growth gives schools an incentive to assess students their first year and at least collect data that provides a basis for measuring future progress.

English proficiency

A major change in ESSA comes with its expectations for English proficiency among the English learner population. While this piece didn't get much attention during negotiations for ESSA, it could require significantly better services for students who do not speak English.

Under No Child Left Behind, schools were held accountable for helping their students improve English proficiency under Title III, which provides money to better support English learner students specifically. Under ESSA, schools must build English proficiency rates into their accountability framework for Title I, which provides money to support low-income students more broadly.

"Title I means English proficiency will get a higher profile and it's also tied to a bigger pot of funding," said Brenda Calderón, an education policy analyst for the National Council of La Raza. "We hope this drives an incentive to make sure English learners are making progress."

Current English learners will be grouped together with former ELs who are as many as four years out of their programs under new ESSA reporting requirements. But while this concerns advocates for its potential to mask the actual performance of current English learners, the English proficiency requirements will clearly show how this smaller population is doing.

Reporting

ESSA brings with it a raft of reporting changes for schools, districts and states, some of them extreme. One area that could impact services for English learners comes with a reinforced emphasis on subgroup accountability. The idea of subgroup accountability means schools and districts are responsible for helping every student succeed, whether they are white, black, brown, rich, poor or disabled.

Under ESSA, a school cannot get a high rating if one of its subgroups is failing across the board. In fact, if English learners are consistently not doing well in a school, that school will be flagged for targeted improvement and administrators will have to outline a plan for improving outcomes, even if the rest of the school is high-performing.

"That's a huge civil rights priority that made it into the law," Calderón said. Still, each state will set its own bar for what consistently underperforming means for a given subgroup.

Pompa, from the Migration Policy Institute, points to two other wins.

First, the English learner subgroup will be further disaggregated so the outcomes of English learner students with disabilities are separated from the English learner population as a whole.

And second, schools will be required to report the number of long-term English learners who continue to receive services for more than five years. Pompa says this could help educators understand the effectiveness of different instructional models for English learners, and other advocates have called it a "name and shame" provision that will incentivize schools to serve these students rather than letting them languish in programs that limit their access to high-level academic content.

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4 ways ESSA will change how schools serve ELL students

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The Elementary and Secondary Education Act, first passed in 1965, is at its heart a piece of civil rights legislation. Its whole purpose is to provide federal funds to states and districts to overcome disadvantages faced by students who have traditionally fallen through the cracks or been intentionally ignored.

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Slide 13 Bulleted list of Recommendations / Best Practices for Compliance

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Slide 13 Bulleted list of Recommendations / Best Practices for Compliance

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English language learners are a growing population in schools that face many challenges in academic success. Although there are laws in place such as the ESSA and 19 TAC §89.1201 to ensure proper programs are in place, there is still inconsistency among federal, state, and local laws since school districts are responsible for many aspects of the programs. There are many challenges that school counselors must address to ensure all students have a chance at equal education and academic success. As a future school counselor, it will be important for me to incorporate the following practices to ensure ELLs needs are met.

Treat all students equally and make them feel welcome. A lot of ELLs are newcomers or undocumented students, so helping them transition academically and culturally into school is important. Counselors should be culturally sensitive and try to understand the cultural and social challenges of ELL students as well as academic challenges.

Properly identify English learners to ensure they are placed in the appropriate courses for their level of English understanding, as well as monitor students closely so they can be moved into regular or advanced placement classes when they are ready.

Ensure that ELLs are placed in programs where teachers are ESL certified to comply with 19 TAC §89.1201 which states that schools must seek appropriate teaching staff.

Provide professional development for all staff to promote high quality instruction for ELLs as well as fostering schoolwide cultural diversity.

Work with parents of ELLs. Many parents of ELLs are not involved because of language barriers, so helping them feel comfortable and keeping them informed is important so that everyone is on the same page.

Work collaboratively with students, parents, teachers, and administrators to ensure academic, social, and cultural needs are being met for all students.

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Slide 12 Non-Law Source: Preparing School Counselors for English Language Learners (ELT in Context)

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Slide 12 Non-Law Source: Preparing School Counselors for English Language Learners (ELT in Context)

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Preparing School Counselors for English Language Learners by Luciana C. DeOliveira and Carrie A. Wachter Morris explains the importance of school counselors understanding the needs of all students as well as the “complexity of the needs of English learners” (Deoliverira & Morris 2015). Specific skills are discussed in this book including:

Knowledge of current roles and responsibilities of school counselors

Legislation such as Title III of NCLB, and the Bilingual Education Act

An overview of issues such as second language development and multicultural counseling practices

Appropriate counseling interventions.

DeOliveira, L, & Morris, C. (2015). Preparing school counselors for English language learners. Alexandria, VA: TESOL Press.

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Preparing School Counselors for English Language Learners (ELT in Context)

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School counselors need to have a working knowledge about the needs of all students and must specifically address the complexity of the needs of English learners. This last volume in the ESOL for Different Professions series focuses on the specific knowledge and skills that school counselors need ...

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According to the American School Counselor Association Ethical Standards for School Counselors, section B.2 Responsibilities to the School k. states that school counselors should “Affirm the abilities of and advocate for the learning needs of all students. School counselors support the provision of appropriate accommodations and accessibility” (ASCA, 2016, p. 7). This ethical standard shows that school counselors have a responsibility to ensure all students including those who do not speak English, have the same opportunity to succeed in school. School counselors should ensure that all students are placed in the correct courses for their learning needs and receive the proper accommodations for those courses and tests. Although this standard does not specifically state English language learners, these students require thoughtful placement and accommodations that counselors should be aware of.

American School Counselor Association [ASCA]. (2016). ASCA ethical standards for school counselors. Retrieved from https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf

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Slide 10 Local Administrative Law/Policy/Rule: FB(LOCAL) - Equal Educational Opportunity

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Slide 10 Local Administrative Law/Policy/Rule: FB(LOCAL) - Equal Educational Opportunity

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“The District shall provide necessary services and supports to provide students equal access to educational opportunities” (Irving ISD Policy, 2016).

This policy states that accommodations may be made for special populations including English language learners when they do not “modify the rigor or content” of the subject (Irving ISD Policy, 2016).

Accommodations may also be made for state-mandated assessments.

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Note: The following provisions address equal educational opportunity for all students in accordance with law. For provisions addressing discrimination, harassment, and retaliation involving District students, see FFH.

Title IX Coordinator

The District has designated a Title IX coordinator for students to coordinate its efforts to comply with Title IX of the Education Amendments of 1972, as amended. [See FB(EXHIBIT)]

ADA / Section 504 Coordinator

The District has designated an ADA/Section 504 coordinator for students to coordinate its efforts to comply with Title II of the Americans with Disabilities Act of 1990, as amended, which incorporates and expands upon the requirements of Section 504 of the Rehabilitation Act of 1973 ("Section 504"), as amended. [See FB(EXHIBIT)]

Title VI Coordinator

The Superintendent shall serve as coordinator for purposes of District compliance with all other nondiscrimination laws, including, without limitation, Title VI, 1964 Civil Rights Act (42 U.S.C. 2000d) and Chapter 106 of the Texas Civil Practice and Remedies Code.

Equal Educational Opportunity

General Education

The District shall provide necessary services and supports to provide students equal access to educational opportunities. [See EHBC] Certain instructional or other accommodations, including on state-mandated assessments, may be made when necessary, when allowable, and when these accommodations do not modify the rigor or content expectations of a subject, course, or assessment. [See EKB]

Additional Services and Supports

If the District has reason to believe that a student has a disability that may require additional services and supports in order for the student to receive an appropriate education as this term is defined by law, Section 504 and/or the Individuals with Disabilities Education Act (IDEA) shall govern the evaluation, services, and supports provided by the District. [See also EHBA series]

[For information regarding dyslexia and related disorders, see EHB.]

Note: The following provisions address the District's compliance efforts and system of procedural safeguards as required by federal regulations for a student with a disability as defined by Section 504. A report of discrimination or harassment based on a student's disability shall be made in accordance with FFH.

Section 504

Committees

The District shall form Section 504 committees as necessary. The ADA/Section 504 coordinator and members of each Section 504 committee shall receive training in the procedures and requirements for identifying and providing educational and related services and supports to a student who has a disability that results in a substantial limitation of a major life activity.

Each Section 504 committee shall be composed of a group of persons knowledgeable about the student, the meaning of the evaluation data, placement options, and the legal requirements regarding least restrictive environment and comparable facilities for students with disabilities.

Referrals

If a teacher, school counselor, administrator, or other District employee has reason to believe that a student may have a disability as defined by Section 504, the District shall evaluate the student. A student may also be referred for evaluation by the student's parent.

Notice and Consent

The District shall seek written parental consent prior to conducting a formal evaluation. Ordinary observations in the classroom or other school setting shall not require prior parental consent.

Evaluation and Placement

The results of an evaluation shall be considered before any action is taken to place a student with a disability or make a significant change in placement in an instructional program. The Superintendent shall ensure that the District's procedures for tests and other evaluation materials comply with the minimum requirements of law. In interpreting evaluation data and when making decisions related to necessary services and supports, each Section 504 committee shall carefully consider and document information from a variety of sources in accordance with law.

Review and Reevaluation Procedure

To address the periodic reevaluation requirement of law, the District shall adhere to the reevaluation timelines in the IDEA regulations.

A parent, teacher, or other District employee may request a review of a student's services and supports at any time, but a formal reevaluation shall generally occur no more frequently than once a year.

Examining Records

A parent shall make any request to review his or her child's education records to the campus principal or other identified custodian of records. [See FL]

Right to Impartial Hearing

A parent shall be given written notice of the due process right to an impartial hearing if the parent has a concern or complaint about the District's actions regarding the identification, evaluation, or educational placement of a student with a disability. The impartial hearing shall be conducted by a person who is knowledgeable about Section 504 issues and who is not employed by the District or related to a member of the Board in a degree that would be prohibited under the nepotism statute [see DBE]. The impartial hearing officer is not required to be an attorney. The District and the parent shall be entitled to legal representation at the impartial hearing.

Records Retention

Records specific to identification, evaluation, and placement as these pertain to Section 504 shall be retained by the District in accordance with law and the District's local records retention schedules. [See CPC]

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FB(LOCAL) - EQUAL EDUCATIONAL OPPORTUNITY

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Note: The following provisions address equal educational opportunity for all students in accordance with law. For provisions addressing discrimination, harassment, and retaliation involving District students, see FFH. The District has designated a Title IX coordinator for students to coordinate its efforts to comply with Title IX of the Education Amendments of 1972, as amended.

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Slide 9 Castaneda v. Pickard (1981) (Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981))- Judicial Law 

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Slide 9 Castaneda v. Pickard (1981) (Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981))- Judicial Law 

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In the court case Castaneda v. Pickard (1981), it was found that Raymondville did not meet the requirements of the Equal Educational Opportunities Act (EEOA). To ensure schools are addressing the needs of English Language Learners as mandated by the EEOA, it was ruled that English Language programs must be:

Based on “sound educational theory”

Implemented effectively with sufficient resources

Evaluated for effectiveness (Castaneda v. Pickard, 1981).

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Plaintiffs, Mexican-American children and their parents who represent a class of others similarly situated, instituted this action against the Raymondville, Texas Independent School District (RISD) alleging that the district engaged in policies and practices of racial discrimination against Mexican-Americans which deprived the plaintiffs and their class of rights secured to them by the fourteenth amendment and 42 U.S.C. § 1983 (1976), Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (1976), and the Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1701 et seq. (1976). Specifically, plaintiffs charged that the school district unlawfully discriminated against them by using an ability grouping system for classroom assignments which was based on racially and ethnically discriminatory criteria and resulted in impermissible classroom segregation, by discriminating against Mexican-Americans in the hiring and promotion of faculty and administrators, and by failing to implement adequate bilingual education to overcome the linguistic barriers that impede the plaintiffs' equal participation in the educational program of the district. The original complaint also named the Secretary of the Department of Health, Education and Welfare (HEW) as a defendant and alleged that the department, although charged with responsibility to assure that federal funds are spent in a nondiscriminatory manner and cognizant of the school district's noncompliance with federal law, had failed to take appropriate action to remedy the unlawful practices of the school district or to terminate its receipt of federal funds. By an amended complaint, the plaintiffs also named the Texas Education Agency (TEA) as a defendant and charged that the TEA had failed to fulfill its duty to assure that the class represented by the plaintiffs was not subjected to discriminatory practices through the use of state or federal funds.

The pleadings in this case also contained an allegation that the school district had administered the extracurricular programs of its schools with the purpose and effect of denying Mexican-American students an equal opportunity to participate in such activities. The record reveals no evidence on this issue and plaintiffs have not reasserted this claim on appeal.

The case was tried in June 1978; on August 17, 1978 the district court entered judgment in favor of the defendants based upon its determination that the policies and practices of the RISD, in the areas of hiring and promotion of faculty and administrators, ability grouping of students, and bilingual education did not violate any constitutional or statutory rights of the plaintiff class. From that judgment, the plaintiffs have brought this appeal in which they claim the district court erred in numerous matters of fact and law.

Although upon motion of the plaintiffs, HEW was dismissed as a defendant in this suit before trial, the agency remains an important actor in our current inquiry because this private litigation involves many of the same issues considered in an HEW administrative investigation and fund termination proceeding involving RISD. In April 1973, following a visit from representatives of HEW's Office for Civil Rights (OCR), HEW notified RISD that it failed to comply with the provisions of Title VI and administrative regulations issued by the Department to implement Title VI. HEW requested that RISD submit an affirmative plan for remedying these deficiencies. Apparently, RISD and the OCR were unable to negotiate a mutually acceptable plan for compliance and in June 1976, formal administrative enforcement proceedings were instituted in which the OCR sought to terminate federal funding to RISD. RISD requested a hearing on the allegations of noncompliance and in January 1977, a five day hearing was held before an administrative law judge. Thereafter, the judge entered a decision which concluded that RISD was not in violation of Title VI or the administrative regulations and policies issued thereunder. The judge ordered that the suspension of federal funds to the district be lifted. This decision was affirmed in April 1980, by a final decision of the Reviewing Authority of the OCR.

The extensive record of these administrative proceedings, including the transcript of the hearing before the administrative law judge and the judge's decision, was received into the record as evidence in the trial of this case and included in the record on appeal. The defendants have moved to supplement the appellate record by including the decision of the Reviewing Authority. This motion was carried with the appeal. Since the record in this case already includes extensive material from this administrative proceeding, which involved many of the same questions of fact and law as this case, we see no reason why the final administrative determination of those questions should not also be included. The defendants' motion to supplement the appellate record in this cause to include the final decision of the Reviewing Authority of OCR is, therefore, granted.

Before we turn to consider the specific factual and legal issues raised by the plaintiffs in their appeal of the district court's judgment, we think it helpful to outline some of the basic demographic characteristics of the Raymondville school district. Raymondville is located in Willacy County, Texas. Willacy County is in the Rio Grande Valley; by conservative estimate based on census data, 77% of the population of the county is Mexican-American and almost all of the remaining 23% is "Anglo." The student population of RISD is about 85% Mexican-American.

Willacy County ranks 248th out of the 254 Texas counties in average family income. Approximately one-third of the population of Raymondville is composed of migrant farm workers. Three-quarters of the students in the Raymondville schools qualify for the federally funded free school lunch program. The district's assessed property valuation places it among the lowest ten percent of all Texas counties in its per capita student expenditures.

The district operates five schools. Two campuses, L.C. Smith and Pittman, house students in kindergarten through fifth grade. The student body at L.C. Smith is virtually 100% Mexican-American; Pittman, which has almost twice as many students, has approximately 83% Mexican-American students. There is one junior high school, which has 87% Mexican-American students, and one high school, in which the enrollment is 80% Mexican-American.
I. A THRESHOLD OBSTACLE TO APPELLATE REVIEW
In their brief on appeal, the plaintiffs contend first, that the analysis of the memorandum opinion in which the district court concluded that the challenged policies and practices of the RISD did not violate the fourteenth amendment, Title VI or the Equal Educational Opportunities Act is pervasively flawed by the court's failure to make findings concerning the history of discrimination in the RISD in assessing the plaintiffs' challenges to certain current policies and practices. Plaintiffs contend that these issues were properly raised by the pleadings and that there was ample evidence in the record to support findings that RISD had, in the past, segregated and discriminated against Mexican-American students and that, as yet, RISD has failed to establish a unitary system in which all vestiges of this earlier unlawful segregation have been eliminated because the virtually 100% Mexican-American school, L.C. Smith, is a product of this earlier unlawful policy of segregation. Although the plaintiffs in this case did not challenge the current student assignment practices of the RISD (which are no longer based on attendance zones but rather on a freedom of choice plan) or request relief designed to alter the ethnic composition of the student body at L.C. Smith, the evidence of past segregative practices of RISD was relevant to the legal analysis of two of the claims the plaintiffs did make.

The plaintiffs here challenge the RISD's ability grouping system which is used to place students in particular sections or classes within their grade. We have consistently stated that ability grouping is not per se unconstitutional. In considering the propriety of ability grouping in a system having a history of unlawful segregation, however, we have cautioned that if testing or other ability grouping practices have a markedly disparate impact on students of different races and a significant racially segregative effect, such practices cannot be employed until a school system has achieved unitary status and maintained a unitary school system for a sufficient period of time that the handicaps which past segregative practices may have inflicted on minority students and which may adversely affect their performance have been erased. United States v. Gadsden County School District, 572 F.2d 1049 (5th Cir. 1978); Morales v. Shannon, 516 F.2d 411 (5th Cir. 1975); McNeal v. Tate County School District, 508 F.2d 1017 (5th Cir. 1975); Moses v. Washington Parish School Board, 456 F.2d 1285 (5th Cir. 1972); Lemon v. Bossier Parish School Board, 444 F.2d 1400 (5th Cir. 1971); Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211, 1219 (5th Cir. 1969).

The question whether RISD has a history of unlawful discrimination is also relevant to the analysis of plaintiffs' claim regarding the district's employment practices. In cases involving claims similar to those made here regarding a pattern or practice of discrimination in the employment of faculty and staff, we have held that when such a claim is asserted against a school district having a relatively recent history of discrimination, the burden placed on the defendant school board to rebut a plaintiff's prima facie case is heavier than the burden of rubuttal in the usual employment discrimination case. In a case involving a school district with a history of discrimination, the defendant must rebut the plaintiff's prima facie case by clear and convincing evidence that the challenged employment decisions were motivated by legitimate nondiscriminatory reasons. Lee v. Conecuh County Board of Education, 634 F.2d 959 (5th Cir. 1981); Lee v. Washington County Board of Education, 625 F.2d 1235, 1237 (5th Cir. 1980); Davis v. Board of School Commissioners, 600 F.2d 470, 473 (5th Cir. 1979); Hereford v. Huntsville Board of Education, 574 F.2d 268, 270 (5th Cir. 1978); Barnes v. Jones County School District, 544 F.2d 804, 807 (5th Cir. 1977). This, of course, is a much heavier burden of rebuttal than that imposed on an employer in the usual employment discrimination case under Texas Department of Community Affairs v. Burdine, ___ U.S. ___, ___, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).

In Burdine, the Supreme Court elaborated upon the basic allocation of the burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment which it had enumerated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Court clarified the defendant's burden of rebuttal by describing it as follows:

The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. . . . It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection.

___ U.S. at ___, 101 S.Ct. at 1094 (footnotes omitted).
Although the Court's opinion in Burdine clearly disapproves of this circuit's previous practice of requiring the defendant in a Title VII case to prove the existence of legitimate non-discriminatory reasons for a challenged employment decision by a preponderance of the evidence, we do not believe that Burdine affects the burden shifting device we have long employed in the distinctive context of claims alleging discrimination, whether in employment or other areas, by a school district with a history of unlawful segregation. The analysis we have employed in this latter type of case is not derived from McDonnell Douglas; even as we employed the now disapproved "preponderance of the evidence" requirement in most Title VII contexts, we distinguished the situation where a claim of employment discrimination was lodged against a school district which formerly operated a dual school system and imposed the even stiffer "clear and convincing" standard. Lee v. Conecuh County Board of Education, 634 F.2d 959 (5th Cir. 1981). The application of this standard under these circumstances, is consistent with the type of presumptions approved by the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) (in school district which formerly operated segregated dual system, burden placed on district to establish that continued existence of some one-race schools is not the result of present or past discriminatory action by the district) and Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548 (1973) ("finding of intentionally segregative school board actions in a meaningful portion of a school system . . . creates a presumption that other segregated schooling within the system is not adventitious . . . and shifts to these authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions.") We do not believe the Court in Burdine intended to affect the manner in which this court has applied a presumption similar to that recognized in Swann and Keyes, to place on school districts having a history of unlawful discrimination a more onerous burden of rebuttal in an employment discrimination case than is usually imposed on defendant in a Title VII case.

Plaintiffs raised the issue of RISD's past discrimination in their pleadings and introduced substantial evidence in support of this claim in the proceedings before the district court; thus, the district court's failure to make findings regarding the history of the district and whether vestiges of past discrimination currently exist in the district cannot be excused on the grounds that these issues were not properly before the court. The absence of findings on these issues seriously handicaps our review of the merits of the ability grouping and employment discrimination claims made by the plaintiffs in this case. With regard to plaintiffs' first two arguments on appeal, our opinion will, therefore, be limited to identifying the factual and legal determinations which, although necessary to a proper analysis of the plaintiffs' claims, were not made by the district court and must be made upon remand and to reviewing those aspects of the merits of these claims which are not affected by this failure to make certain essential findings.

The record contains evidence that although Raymondville has always operated only one secondary school facility, attended by both Anglo and Mexican-American students, there was historically, segregation of Mexican-American students at the elementary school level. From school board minutes it appears that in the early decades of this century RISD operated schools on only one campus. There were separate buildings or wings of buildings on this one site for the "Mexican School" and the "American School," both of which provided instruction in the elementary grades, and the secondary school which housed junior high and high school students.
In 1947, overcrowding at the central campus prompted a proposal that RISD operate another elementary school at a different site in northwest Raymondville and to establish attendance zones for elementary students. This proposal met with organized and vocal opposition from the Mexican-American community. The League of United Latin-American Citizens petitioned the board to consider another location for the new school and complained that the proposed site coupled with the new attendance zone policy would result in the establishment of a school attended almost exclusively by Mexican-Americans. The school board nevertheless proceeded to open a school on the northwest Raymondville site. This school, known first as the San Jacinto school and later as the North Ward school, was housed in old military barracks. This school was closed and the L.C. Smith school was built on the same site in 1962. We note that although the northwest campus has apparently been a virtually all-Mexican-American school, it is not clear from the record that the main campus elementary school was ever exclusively, or even primarily, Anglo and it is certainly not so today. It is clear, however, that as a result of the manner in which attendance zones were defined, the Anglo students were concentrated at the main campus elementary school facilities. At that campus, Mexican-American students were apparently instructed in separate classes during the first three elementary grades in an effort to provide English language instruction; classrooms at the main elementary school were integrated beginning with the fourth grade. The record in this case does not contain evidence from which we can determine whether, despite this history, RISD has now fully remedied the effects of these practices and operates a unitary system.

II. ABILITY GROUPING
RISD employs an ability grouping system of student assignment. In the elementary grades and the junior high school, students are placed in a particular ability group (labeled "high," "average" or "low") based on achievement test scores, school grades, teacher evaluations and the recommendation of school counselors. In grades 1-6, once students have been placed in a particular ability group, they are assigned to a specific class for that group by a random manual sorting system designed to assure that each classroom has a roughly equal number of girls and boys. After the junior high school students are grouped by ability, they are assigned to particular sections of their ability group by computer. Although Raymondville High School offers courses of varying pace and difficulty, students are not assigned to particular ability groups. High school students, with the assistance of their parents and school counselors, choose the subjects they wish to study (subject, of course, to the usual sort of prerequisites and curriculum required for graduation) and are free to select an accelerated, average or slower class. Plaintiffs claim that these ability grouping practices unlawfully segregate the Mexican-American students of the district.

As we noted above, this circuit has consistently taken the position that ability grouping of students is not, per se, unconstitutional. The merits of a program which places students in classrooms with others perceived to have similar abilities are hotly debated by educators; nevertheless, it is educators, rather than courts, who are in a better position ultimately to resolve the question whether such a practice is, on the whole, more beneficial than detrimental to the students involved. Thus, as a general rule, school systems are free to employ ability grouping, even when such a policy has a segregative effect, so long, of course, as such a practice is genuinely motivated by educational concerns and not discriminatory motives. However, in school districts which have a past history of unlawful discrimination and are in the process of converting to a unitary school system, or have only recently completed such a conversion, ability grouping is subject to much closer judicial scrutiny. Under these circumstances we have prohibited districts from employing ability grouping as a device for assigning students to schools or classrooms, United States v. Gadsden County School District, supra; McNeal v. Tate County School District, supra. The rationale supporting judicial proscription of ability grouping under these circumstances is two-fold. First, ability grouping, when employed in such transitional circumstances may perpetuate the effects of past discrimination by resegregating, on the basis of ability, students who were previously segregated in inferior schools on the basis of race or national origin. Second, a relatively recent history of discrimination may be probative evidence of a discriminatory motive which, when coupled with evidence of the segregative effect of ability grouping practices, may support a finding of unconstitutional discrimination.

Thus, in a case where the ability grouping practices of a school system are challenged, the court must always consider the history of the school system involved. If the system has no history of discrimination, or, if despite such a history, the system has achieved unitary status and maintained such status for a sufficient period of time that it seems reasonable to assume that any racially disparate impact of the ability grouping does not reflect either the lingering effects of past segregation or a contemporary segregative intent, then no impermissible racial classification is involved and ability grouping may be employed despite segregative effects. However, if the district's history reveals a story of unremedied discrimination, or remedies of a very recent vintage which may not yet be fully effective to erase the effects of past discrimination, then the courts must scrutinize the effects of ability grouping with "punctilious care." McNeal v. Tate County School District, id. at 1020. Even under these circumstances, however ability grouping is not always impermissible. If the statistical results of the ability grouping practices do not indicate "abnormal or unusual" segregation of students along racial lines, the practice is acceptable even in a system still pursuing desegregation efforts. Morales v. Shannon, supra at 414.

Despite the absence of district court findings on the questions whether RISD has a history of discrimination against Mexican-Americans and whether any past discrimination has been fully remedied, we are able to consider the merits of plaintiffs' ability grouping claim insofar as it challenges the practices employed in grades 9-12. We note, first, that although different high school courses in Raymondville may be designed to accommodate students of different abilities or interests, self-selection, by students and parents, plays a very large part in the process by which students end up in a particular course. In light of this fact, we cannot conclude that "ability grouping," insofar as that term refers to the practice of a school in assigning a student to a particular educational program designed for individuals of particular ability or achievement, is, in fact, employed at the high school level.

The district court's failure to make findings concerning the RISD's history does, however, severely handicap our review of the ability grouping practices employed in the central campus elementary school and the junior high school. RISD contends that we should deem these practices unobjectionable because even if the district court were to find that RISD has a history of unlawful discrimination, the effects of which have not yet been fully and finally remedied, the statistical results of RISD's ability grouping practices, are, like the results of the ability grouping employed in Morales v. Shannon, supra, "not so abnormal or unusual . . . as to justify an inference of discrimination." Id. at 414. We cannot agree. In Morales, the overall student population in the grades where ability grouping was practiced was approximately 60% Mexican-American and 40% Anglo; however, approximately 61% of the students assigned to "high" groups were Anglo. Thus, 1.5 times as many Anglos were assigned to high groups as were enrolled in these grades as a whole. In Raymondville, the statistical results of the ability grouping are definitely more marked. For example, in grades kindergarten through three, during the academic year 1977-78, Anglo students formed approximately 17% of the student population at the central elementary campus; however 41% of the students in "high" ability classes for those grades were Anglo. Thus, there were approximately 2.4 times as many Anglos in high ability classes as there were in these grades as a whole. The figures in the upper grades for this year are comparable. In grades 4 and 5, there were approximately 2.3 times as many Anglos in high ability classes as in these grades as a whole; and in the junior high school grades 6-8, there were approximately 2.6 times as many Anglos in high groups as in the junior high school as a whole.

Statistical results such as these would not be permissible in a school system which has not yet attained, or only very recently attained, unitary status. Thus it is essential to examine the history of the RISD in order to determine the merits of the plaintiffs' claims. On remand, therefore, the district court should reconsider the plaintiffs' allegation that the ability grouping practices of the RISD are unlawful, insofar as grades K-8 are concerned, in light of the conclusions it reaches concerning the history of the district and the question whether it currently operates a unitary school system. If the district court finds that RISD has a past history of discrimination and has not yet maintained a unitary school system for a sufficient period of time that the effects of this history may reasonably be deemed to have been fully erased, the district's current practices of ability grouping are barred because of their markedly segregative effect.

The historical inquiry is not, however, the only one that the district court must make on remand in order to determine the merits of the plaintiffs' claims that RISD's ability grouping practices are unlawful. The record suggests that in Raymondville "ability grouping" is intertwined with the district's language remediation efforts and this intersection raises questions not present in our earlier cases involving ability grouping. The record indicates that the primary "ability" assessed by the district's ability grouping practices in the early grades is the English language proficiency of the students. Students entering RISD kindergarten classes are given a test to determine whether their dominant language is English or Spanish. Predominantly Spanish speaking children are then placed in groups designated "low" and receive intensive bilingual instruction. "High" groups are those composed of students whose dominant language is English. "Ability groups" for first, second and third grade are determined by three basic factors: school grades, teacher recommendations and scores on standardized achievement tests. These tests are administered in English and cannot, of course, be expected to accurately assess the "ability" of a student who has limited English language skills and has been receiving a substantial part of his or her education in another language as part of a bilingual education program.

Nothing in our earlier cases involving ability grouping circumscribes the discretion of a school district, even one having a prior history of segregation, in choosing to group children on the basis of language for purposes of a language remediation or bilingual education program. Even though such a practice would predictably result in some segregation, the benefits which would accrue to Spanish speaking students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation. See McNeal v. Tate County School District, supra at 1020 (ability grouping may be permitted in a school district with a history of segregation "if the district can demonstrate that its assignment method is not based on the present results of past segregation or will remedy such results through better educational opportunities.")

We assume that the segregation resulting from a language remediation program would be minimized to the greatest extent possible and that the programs would have as a goal the integration of the Spanish-speaking student into the English language classroom as soon as possible and thus that these programs would not result in segregation that would permeate all areas of the curriculum or all grade levels.

Language grouping is, therefore, an unobjectionable practice, even in a district with a past history of discrimination. However, a practice which actually groups children on the basis of their language ability and then identifies these groups not by a description of their language ability but with a general ability label is, we think, highly suspect. In a district with a past history of discrimination, such a practice clearly has the effect of perpetuating the stigma of inferiority originally imposed on Spanish speaking children by past practices of discrimination. Even in the absence of such a history, we think that if the district court finds that the RISD's ability grouping practices operate to confuse measures of two different characteristics, i. e., language and intelligence, with the result that predominantly Spanish speaking children are inaccurately labeled as "low ability," the court should consider the extent to which such an irrational procedure may in and of itself be evidence of a discriminatory intent to stigmatize these children as inferior on the basis of their ethnic background.
III. TEACHERS
Testimony given in both the administrative proceeding and the trial of this civil suit indicates that the relatively small number of Mexican-American teachers and administrators employed by the Raymondville school district is a matter of great concern to Mexican-American students and their parents. Many persons in the community apparently believe that the disparity between the percentage of teachers in the district who are Mexican-American, 27%, and the percentage of students who are Mexican-American, 88%, is one of the major reasons for the underachievement and high dropout rate of Mexican-American students in Raymondville. Plaintiffs urge that this statistical disparity is both the result of, and evidence of, unlawful discrimination by RISD. The school district insists that it shares this desire to see more Mexican-American teachers employed in Raymondville schools, and argues that the current situation is not the result of unlawful discrimination on its part, but rather a reflection of the fact that certain characteristics of Raymondville, notably the lack of cultural activities and housing, make it difficult to recruit Mexican-American teachers, who are actively sought by many other school districts in Texas. The district court agreed with the RISD's contentions and concluded that the school district did not discriminate against Mexican-Americans in either the hiring or promotion of teachers or administrators. In order to review the merits of that conclusion, we think it appropriate to examine first the precise legal basis for the teacher discrimination claim advanced by the plaintiffs in order to discern the correct legal framework for our review.

At the outset we note that the question whether RISD discriminates in the employment or promotion of teachers or administrators reaches us in a somewhat unusual posture. The class of plaintiffs in this case includes only Mexican-American students and their parents; no RISD employee, former employee or applicant for employment by the district is a party to this suit. Although students and parents are not typically the persons who bring suit to remedy alleged discrimination in the hiring and promotion of teachers and administrators in a school district, we do not believe they lack standing to do so. Plaintiffs premise their claim on the fourteenth amendment, and 42 U.S.C. § 1983, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and the Equal Educational Opportunity Act, 20 U.S.C. § 1701 et seq. The Equal Educational Opportunities Act (EEOA) explicitly provides in § 1703(d) that "discrimination by an educational agency on the basis of race, color or national origin in the employment . . . of faculty or staff" constitutes a denial of equal educational opportunity. The statute also expressly provides a private right of action for persons denied such an "equal educational opportunity" in § 1706. Thus the class of students here clearly have standing to complain of, and a private cause of action for relief from, alleged discrimination by RISD in the hiring and promotion of teachers and staff under this statute.

With regard to the plaintiffs' rights to assert a claim based upon this type of discrimination under the constitution and Title VI, we note that historically, dual school systems were maintained not only by segregation of students on the basis of race but also through discrimination in hiring and assignment of teachers. Consequently, as part of the remedy ordered in school desegregation cases, we have often included a provision intended to assure that a school district did not perpetuate unlawful school segregation through discriminatory employment practices. Such remedial orders implicitly acknowledge that the Equal Protection Clause, which outlaws discrimination on the basis of race or national origin in public education, requires not only that students shall not themselves be discriminated against on the basis of race by assignment to a particular school or classroom, but that they shall not be deprived of an equal educational opportunity by being forced to receive instruction from a faculty and administration composed of persons selected on the basis of unlawful racial or ethnic criteria. Thus, we think that the class of plaintiffs here may also assert a cause of action based upon unconstitutional racial discrimination in employment of teachers and administrators under 42 U.S.C. § 1983. In making this claim, the students are not attempting to vindicate the constitutional rights of the teachers involved but only seeking to remedy a denial of equal protection they claim to have suffered as a result of faculty discrimination. They have thus suffered an "injury in fact" and have shown a "sufficient personal stake in the outcome of the controversy" to establish their standing to assert a claim that RISD discriminates in its employment practices. Tasby v. Estes, 634 F.2d 1103 (5th Cir. 1981); Otero v. Mesa Valley School District No. 51, 568 F.2d 1312, 1314 (10th Cir. 1977) (quoting Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1976)).

Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970) which set forth the standard form desegregation order in this circuit, required, inter alia, that:

Staff members who work directly with children, and professional staff who work on the administrative level will be hired, assigned, promoted, paid, demoted, dismissed and otherwise treated without regard to race, color or national origin.

Id. at 1218.

With regard to Title VI, although the Supreme Court has never explicitly so held, there is authority in this circuit acknowledging a private right of action under this statute. Bossier Parish School Board v. Lemon, 370 F.2d 847, 852-51 (5th Cir.), cert. denied, 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350 (1967). In any event, since a majority of the Court has now taken the position that Title VI proscribes the same scope of classifications based on race as does the Equal Protection Clause, University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), the question whether plaintiffs have an independent cause of action under that statute is not a significant one in this case.

Having concluded that the plaintiffs in this case have standing and a cause of action to complain of discrimination by RISD in the employment of faculty and staff, we turn to examine more carefully the elements of this cause of action and the proof adduced by the plaintiffs in support of their claim. With regard to the plaintiffs' claims based upon Title VI and the Equal Protection Clause, we note that it is now well-established that in order to assert a claim based upon unconstitutional racial discrimination a party must not only allege and prove that the challenged conduct had a differential or disparate impact upon persons of different races, but also assert and prove that the governmental actor, in adopting or employing the challenged practices or undertaking the challenged action, intended to treat similarly situated persons differently on the basis of race. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Thus, discriminatory intent, as well as disparate impact, must be shown in employment discrimination suits brought against public employers under Title VI, 42 U.S.C. § 1981 or § 1983. Lee v. Conecuh County Board of Education, 634 F.2d 959 (5th Cir. 1981); Lee v. Washington County Board of Education, 625 F.2d 1235 (5th Cir. 1980); Crawford v. Western Electric Co., Inc., 614 F.2d 1300 (5th Cir. 1980); Williams v. DeKalb County, 582 F.2d 2 (5th Cir. 1978). By contrast, in an employment discrimination action premised upon Title VII, a party may rely solely upon the disparate impact theory of discrimination recognized in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). To establish a cause of action based upon this theory, no intent to discriminate need be shown.

The question of what constitutes "discrimination" in the employment practices of a school district within the meaning of § 1703(d) of the EEOA, specifically the question whether intent is required in order to establish a cause of action for discrimination under that statute, cannot be so easily answered by reference to established judicial interpretations of the statute. There is little judicial precedent construing this provision. After examining carefully the language and legislative history of the statute, we have, however, reached the conclusion that the discriminatory conduct proscribed by § 1703(d) is coextensive with that prohibited by the fourteenth amendment and Title VI and does not encompass conduct which might violate Title VII because, although not motivated by racial factors, it has a disparate impact upon persons of different races. Certain of the subsections of § 1703 which define the practices which constitute a denial of equal educational opportunity, explicitly include only intentional or deliberate acts. For example, § 1703(a) prohibits "deliberate segregation . . . on the basis of race, color or national origin . . ." and § 1703(e) bans transfers of students which have "the purpose and effect" of increasing segregation. The language of 1703(d) refers only to "discrimination" and does not contain such an explicit intent requirement. In considering the EEOA under different circumstances, we have found that some of its provisions "go beyond the acts and practices proscribed prior to the EEOA's passage" and that by its terms, the statute explicitly makes unlawful practices, such as segregation of students on the basis of sex, which may not violate the fourteenth amendment because of the lesser scrutiny given six-based classifications under the Equal Protection Clause, United States v. Hinds County School Board, 560 F.2d 619 (5th Cir. 1977). Although by language in the act explicitly prohibiting segregation on the basis of sex in pupil assignments Congress clearly evidenced an intent that the statute prohibit certain types of conduct not unlawful under the Constitution, we have found no evidence to suggest that the particular subsection which concerns us here, § 1703(d), was designed to encompass a broader variety of employment practices than the provisions of the fourteenth amendment or Title VI. As other courts confronted with the task of interpreting the EEOA have noted, the legislative history of this statute is very sparse, indeed almost non-existent. Guadalupe Organization, Inc. v. Tempe Elementary School Dist. No. 3, 587 F.2d 1022 (9th Cir. 1978). The EEOA was a floor amendment to the 1974 legislation amending the Elementary and Secondary Education Act of 1965, 88 Stat. 338-41, 346-48, 352 (codified in scattered sections of 20 U.S.C.). We agree with the Guadalupe court's suggestion that "[t]he interpretation of floor amendments unaccompanied by illuminating debate should adhere closely to the ordinary meaning of the amendment's language." 587 F.2d at 1030. Unlike Title VII there is nothing in the language of § 1703(d) to suggest that practices having only disparate impact, as well as those motivated by a discriminatory animus, were to be prohibited. Title VII, unlike § 1703(d), makes it an unlawful practice for an employer not only to "discriminate" against individuals on the basis of certain criteria but also makes it unlawful "to limit, segregate or classify [persons] in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of . . . race, color, religion, sex or national origin." It is this latter provision, which was interpreted in Griggs to prohibit facially neutral practices having a disparate impact on persons of different races. No similar provision or description of employment practices having a disparate impact was included in the Equal Educational Opportunities Act. Thus, we conclude that the elements of plaintiff's cause of action for discrimination in the hiring and promotion of teachers and administrators under the Equal Educational Opportunities Act are the same as the elements of their claims premised on the fourteenth amendment and § 1983 and Title VI.

Although the question whether RISD unlawfully discriminates against Mexican-Americans in the hiring or promotion of faculty and administrators reaches us in the somewhat unusual posture of a case brought by students, we think the legal analysis of their claim is properly drawn from the approach used to assess the merits of more traditional class action and pattern and practice employment discrimination suits. In civil rights cases generally we have noted that a district court's finding of discrimination or no discrimination is a determination of an ultimate fact; thus, we must make an independent determination of this question. Phillips v. Joint Legislative Committee, 637 F.2d 1014, 1024-25 (5th Cir. 1981); Danner v. U.S. Civil Service Commission, 635 F.2d 427 (5th Cir. 1981); Thompson v. Leland Police Dep't., 633 F.2d 1111 (5th Cir. 1980); Shepard v. Beaird-Poulan, Inc., 617 F.2d 87 (5th Cir. 1980); Ramirez v. Sloss, 615 F.2d 163 (5th Cir. 1980). In undertaking such an independent review, however, we are bound by the subsidiary factual determinations that the district court made in the course of considering the ultimate issue of discrimination, unless these subsidiary findings are clearly erroneous within the meaning of Fed.R.Civ.P. 52(a). In this case, the district court apparently based its conclusion that RISD did not discriminate against Mexican-Americans in the hiring or promotion of teachers or administrators on subsidiary findings that: (1) RISD currently hires a higher percentage of Mexican-American applicants for teaching positions than Anglo applicants; (2) the school district hires many teachers from nearby universities which have substantial numbers of Mexican-American students; and (3) the school district has a difficult time recruiting Mexican-American teachers because, although its salaries are commensurate with those paid by other schools in the area, Raymondville has very limited housing and cultural activities. Although we do not characterize any of these subsidiary findings as clearly erroneous, we do not believe they are sufficient to support an ultimate finding that RISD does not discriminate against Mexican-Americans in the employment of teachers or administrators.

In class action or pattern and practice employment discrimination suits, the question whether the employer discriminates against a particular group in making hiring decisions requires, as a first and fundamental step, a statistical comparison between the racial composition of the employer's work force and that of the relevant labor market. In many of these cases the nature of the jobs involved suggests that the relevant labor market is coextensive with the general population in the geographical areas from which the employer might reasonably be expected to draw his work force. Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Markey v. Tenneco Oil Co., 635 F.2d 497 (5th Cir. 1981); United States v. City of Alexandria, 614 F.2d 1358, 1364 (5th Cir. 1980). In this case, plaintiffs have relied heavily on the disparity between the percentage of the Raymondville school population consisting of Mexican-Americans (approximately 85%) and the percentage of the faculty in the Raymondville schools who are Mexican-American (27%), in support of their contention that RISD discriminates in its employment decisions. Plaintiffs urge that this statistical disparity coupled with the evidence of a past history of segregation in the Raymondville schools sufficed to make out a prima facie case of discrimination which shifted to the defendants a heavy burden of rebuttal which they failed to meet.

We think the plaintiffs' suggested comparison is not the relevant one. Where, as here, the nature of the employment involved suggests that the pool of people qualified to fill the positions is not likely to be substantially congruent with the general population, the relevant labor market must be separately and distinctly defined. In Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), the Supreme Court considered the question of how to define the relevant labor pool in a case involving a claim that a school district engaged in a pattern and practice of employment discrimination in the hiring of teachers. The Court disapproved of the comparison, which had been made by the district court, between the racial composition of the district's teacher work force and the student population. Such an approach, the Court admonished, "fundamentally misconceived the role of statistics in employment discrimination cases." Id. at 308, 97 S.Ct. at 2741-42. The proper comparison in a case involving school teachers was

between the racial composition of [the district's] teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market.

Id.

The district court's memorandum opinion in this case does not indicate that any such comparison was made here. The district court did apparently compare the data concerning the ethnic composition of the pool of persons who applied for teaching positions at Raymondville, with the ethnic composition of the persons hired. The court found that a larger percentage of Mexican-American applicants than Anglos was hired. The record also indicates that Mexican-Americans comprise a larger percentage of the teachers hired in RISD than they do of the applicant pool. In the usual hiring discrimination case this type of applicant flow data provides a very good picture of the relevant labor market because it allows one to compare the ethnic composition of an employer's workforce with that of the pool of persons actually available for hire by the employer. Markey, supra, at 499. However, in cases such as this one where there is an allegation that the employer's discriminatory practices infect recruiting, the process by which applications are solicited, such applicant flow data cannot be taken at face value and assumed to constitute an accurate picture of the relevant labor market. Discriminatory recruiting practices may skew the ethnic composition of the applicant pool. B.L. Schlei and P. Grossman, Employment Discrimination Law, 445 (1976).

In a case such as this one, the relevant labor market must first be defined separately from the applicant pool in order to determine the merits of the claim of discrimination in recruiting. A statistically significant disparity between the racial composition of the applicant pool and that of the relevant labor market may create a prima facie case of discrimination in recruiting. Because determination of the relevant labor market, the geographical area from which we might reasonably expect RISD to draw applicants and teachers, and of the ethnic composition of the group of persons qualified for teaching positions in this area, is an essentially factual matter within the special competence of the district court, Hazelwood, supra at 312, 97 S.Ct. at 2744, Markey, supra at 498, we remand the issue of discrimination in teacher hiring to the district court for further findings in accordance with the analysis the Supreme Court delineated in Hazelwood and which we have employed in class action and pattern and practice employment discrimination suits. See, e. g., Phillips v. Joint Legislative Committee, supra at 1024-25; Markey, supra; E.E.O.C. v. Datapoint Corporation, 570 F.2d 1264 (5th Cir. 1978).

With regard to the question whether RISD discriminates in the hiring or promotion of persons to administrative positions in the district, the district court concluded that there was no discrimination in this area. In recent years, the percentage of Mexican-Americans serving in administrative positions in the Raymondville School District has been roughly comparable to the percentage of Mexican-Americans on the faculty. For example in 1976, Mexican-Americans occupied 5 of the 16 administrative positions in the district (24%); in the same year 26% of the district's teachers were Mexican-American. Given the small numbers involved we are not prepared to term this a significant disparity. The record indicates that, as a general rule, the RISD prefers to hire administrative personnel from within the ranks of its current employees; thus the statistical evidence in this case would not seem to support an inference of discrimination in promotion, unless, of course, discrimination in hiring is established. In that case, the district court should, on remand, reconsider the issue of discrimination in promotion as well.

The comparison of the employment statistics of RISD with the ethnic composition of the relevant labor market goes to the determination whether the plaintiff made out a prima facie case of unlawful discrimination. If, on remand, the district court concludes that plaintiffs succeeded in making out a prima facie case, the court should determine the nature and weight of the burden of rebuttal this prima facie case placed on the RISD. As we noted above, that burden may differ depending on the conclusions the district court reaches concerning the district's history. See text supra, at 994-996.

The district court must, of course, then consider whether RISD adduced evidence sufficient to rebut the plaintiffs' prima facie case, i. e., evidence tending to suggest that the statistical underrepresentation of Mexican-Americans established by the plaintiffs' prima facie case was not the result of intentional discrimination by the school district. We note that RISD has urged that since Mexican-Americans from a majority of the voting population in the school district, are present on the district's board and have, along with the Anglo majority of the board, voted for and approved most of the hiring and promotion decisions which the plaintiffs have challenged here, the district has adequately rebutted any inference of discriminatory intent which might be raised by plaintiffs' prima facie case.

Although there have been Mexican-American members on the RISD board, there is no evidence in the record that Mexican-Americans have ever formed a majority of the board. Further, the school board's role in the teacher employment process appears to be a largely ministerial one. From the minutes of the school board meetings contained in the record, it appears that the school board does not itself receive and review the files of all applicants or involve itself in the recruiting process. The minutes suggest that the superintendent presents a slate of teachers to the board for its formal approval en masse. Thus, the record suggests that the school board has delegated primary responsibility for the recruitment and hiring of teachers and administrators to the superintendent, a position which has always been occupied by an Anglo. This suggests the possibility that the Mexican-Americans on the board may not, in fact, be in a position to exercise much power over the district's employment decisions.

In any event, the Supreme Court has rejected the argument that this type of "governing majority" theory can, standing alone, rebut a prima facie case of intentional discrimination. In Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), the Supreme Court considered a similar argument. Castaneda involved a challenge by a Mexican-American to the grand jury selection procedures employed in Hidalgo County, Texas. The state argued that the plaintiffs' prima facie case of intentional discrimination, which consisted of statistical evidence of a significant underrepresentation of Mexican-Americans on grand juries, was effectively rebutted merely by evidence that Mexican-Americans were an effective political majority in the county and occupied many county offices, including three of the five grand jury commissioners' posts. The state reasoned that these facts made it highly unlikely that Mexican-Americans were being intentionally excluded from the county's grand juries. The Supreme Court, however, held that such a governing majority theory could not, standing alone, discharge the burden placed on the defendants by plaintiffs' prima facie case. This is not, of course, to say that such evidence is not relevant as part of the district's rebuttal, but only that it may not be deemed conclusive.

We express no opinion as to the outcome of the inquiry which we have directed the district court to make. The question of whether the plaintiffs have made out a prima facie case of unlawful discrimination in the employment practices of the district and the question of whether that case, if made out, has been adequately rebutted are reserved to the district court in the first instance.
IV. THE BILINGUAL EDUCATION AND LANGUAGE REMEDIATION PROGRAMS OF THE RAYMONDVILLE SCHOOLS

The district court's failure to make findings regarding the history of RISD does not impair our review of the merits of plaintiffs claims that inadequacies of the district's language remediation programs render it unlawful because this claim is premised only on Title VI and the EEOA. The plaintiffs in this case do not argue that the current English language disabilities affecting some of the Mexican-American students in Raymondville are the product of past discrimination or that the district is obligated to provide bilingual education or other forms of language remediation as part of a remedy for past discrimination. Cf. United States v. State of Texas, 506 F. Supp. 405 (E.D. Tex. 1981).

RISD currently operates a bilingual education program for all students in kindergarten through third grade. The language ability of each student entering the Raymondville program is assessed when he or she enters school. The language dominance test currently employed by the district is approved for this purpose by the TEA. The program of bilingual instruction offered students in the Raymondville schools has been developed with the assistance of expert consultants retained by the TEA and employs a group of materials developed by a regional educational center operated by the TEA. The articulated goal of the program is to teach students fundamental reading and writing skills in both Spanish and English by the end of third grade.

RISD's program was apparently adopted in compliance with Tex.Ed. Code Ann. § 21.451 (Vernon 1980 Supp.) which required local school districts to provide bilingual programs for students in kindergarten through third grade. The Texas legislature, although requiring and funding bilingual education programs has, nevertheless, provided that English shall be the basic language of instruction in Texas' public schools and that bilingual education may be employed "in those situations when such instruction is necessary to insure that [students acquire] reasonable efficiency in the English language so as not to be educationally disadvantaged." Tex.Ed. Code Ann. § 21.109 (Vernon 1980 Supp.).

Although the program's emphasis is on the development of language skills in the two languages, other cognitive and substantive areas are addressed, e. g., mathematics skills are taught and tested in Spanish as well as English during these years. All of the teachers employed in the bilingual education program of the district have met the minimum state requirements to teach bilingual classes. However, only about half of these teachers are Mexican-American and native Spanish speakers; the other teachers in the program have been certified to teach bilingual classes following a 100 hour course designed by TEA to give them a limited Spanish vocabulary (700 words) and an understanding of the theory and methods employed in bilingual programs. Teachers in the bilingual program are assisted by classroom aides, most of whom are fluent in Spanish.

RISD does not offer a formal program of bilingual education after the third grade. In grades 4 and 5, although classroom instruction is only in English, Spanish speaking teacher aides are used to assist students having language difficulties which may impair their ability to participate in classroom activities. For students in grades 4-12 having limited English proficiency or academic deficiencies in other areas, the RISD provides assistance in the form of a learning center operated at each school. This center provides a diagnostic/prescriptive program in which students' particular academic deficiencies, whether in language or other areas, are identified and addressed by special remedial programs. Approximately 1,000 of the district's students, almost one-third of the total enrollment, receive special assistance through small classes provided by these learning centers. The district also makes English as a Second Language classes and special tutoring in English available to all students in all grades; this program is especially designed to meet the needs of limited English speaking students who move into the district in grades above 3.

We think § 1703(f) clearly imposes on an educational agency a duty to take appropriate action to remedy the language barriers of transfer students as well as the obstacles confronting students who begin their education under the auspices of that agency. However, the challenge presented by these transfer students clearly poses a distinctive and difficult problem. Transfer students may bring to their new school varying amounts of previous education in English or another language; a school district may enroll only a few transfer students or may have a rather large revolving population of transient or migrant students who transfer in and out of the system. Factors such as these may be relevant to a determination of whether a school's language remediation program for such students is appropriate under § 1703(f). In this case, neither the pleadings nor the record in this case indicates that the distinctive problems presented and confronted by these students were addressed with the care necessary to determine whether RISD was currently taking "appropriate action" to meet their needs. Therefore we shall express no opinion on this issue in this decision.

Plaintiffs claim that the bilingual education and language remediation programs offered by the Raymondville schools are educationally deficient and unsound and that RISD's failure to alter and improve these programs places the district in violation of Title VI and the Equal Educational Opportunities Act. The plaintiffs claim that the RISD programs fail to comport with the requirements of the "Lau Guidelines" promulgated in 1975 by the Department of Health, Education and Welfare. Specifically, plaintiffs contend that the articulated goal of the Raymondville program - to teach limited English speaking children to read and write in both English and Spanish at grade level - is improper because it overemphasizes the development of English language skills to the detriment of the child's overall cognitive development. Under the Lau Guidelines, plaintiffs argue, "pressing English on the child is not the first goal of language remediation." Plaintiffs criticize not only the premise and purpose of the RISD language programs but also particular aspects of the implementation of the program. Specifically, plaintiffs take issue with the tests the district employs to identify and assess limited English speaking children and the qualifications of the teachers and staff involved in the district's language remediation program. Plaintiffs contend that in both of these areas RISD falls short of standards established by the Lau Guidelines and thus has fallen out of compliance with Title VI and the EEOA.

We agree with the district court that RISD's program does not violate Title VI. Much of the plaintiffs' argument with regard to Title VI is based upon the premise that the Lau Guidelines are administrative regulations applicable to the RISD and thus should be given great weight by us in assessing the legal sufficiency of the district's programs. This premise is, however, flawed. The Department of HEW, in assessing the district's compliance with Title VI, acknowledged that the Lau Guidelines were inapplicable to an evaluation of the legal sufficiency of the district's language program. The Lau Guidelines were formulated by the Department following the Supreme Court's decision in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). In Lau, the Supreme Court determined that a school district's failure to provide any English language assistance to substantial numbers of non-English speaking Chinese students enrolled in the district's schools violated Title VI because this failure denied these students "a meaningful opportunity to participate in the educational program" offered by the school district, 414 U.S. at 568, 94 S.Ct. at 789. Lau involved a school district which offered many non-English speaking students no assistance in developing English language skills; in declaring such an omission unlawful, the Court did not dictate the form such assistance must take. Indeed the Court specifically noted that the school district might undertake any one of several permissible courses of language remediation:

Teaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instruction to this group in Chinese is another. There may be others.

Id. at 565, 94 S.Ct. at 787. The petitioners in Lau did not specifically request, nor did the Court require, court ordered relief in the form of bilingual education; the plaintiffs in that case sought only "that the Board of Education be directed to apply its expertise to the problem . . . ." Id.

Following the Supreme Court's decision in Lau, HEW developed the "Lau Guidelines" as a suggested compliance plan for school districts which, as a result of Lau, were in violation of Title VI because they failed to provide any English language assistance to students having limited English proficiency. Clearly, Raymondville is not culpable of such a failure. Under these circumstances, the fact that Raymondville provides (and long has provided) a program of language remediation which differs in some respects from these guidelines is, as the opinion of the Reviewing Authority for the OCR noted, "not in itself sufficient to rule that program unlawful in the first instance."

The Lau Guidelines were the result of a policy conference organized by HEW; these guidelines were not developed through the usual administrative procedures employed to draft administrative rules or regulations. The Lau Guidelines were never published in the Federal Register. Since the Department itself in its administrative decision found that RISD's departure from the Lau Guidelines was not determinative of the question whether the district complied with Title VI, we do not think that these guidelines are the sort of administrative document to which we customarily give great deference in our determinations of compliance with a statute.

We must confess to serious doubts not only about the relevance of the Lau Guidelines to this case but also about the continuing vitality of the rationale of the Supreme Court's opinion in Lau v. Nichols which gave rise to those guidelines. Lau was written prior to Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), in which the Court held that a discriminatory purpose, and not simply a disparate impact, must be shown to establish a violation of the Equal Protection Clause, and University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), in which, as we have already noted, a majority of the court interpreted Title VI to be coextensive with the Equal Protection Clause. Justice Brennan's opinion (in which Justices White, Marshall and Blackmun joined) in Bakke explicitly acknowledged that these developments raised serious questions about the vitality of Lau.

We recognize that Lau, especially when read in light of our subsequent decision in Washington v. Davis, 426 U.S. 229 [ 96 S.Ct. 2040, 48 L.Ed.2d 597] (1976), which rejected the general propostion that governmental action is unconstitutional solely because it has a racially disproportionate impact, may be read as being predicated upon the view that, at least under some circumstances, Title VI proscribes conduct which might not be prohibited by the Constitution. Since we are now of the opinion, for the reasons set forth above, that Title VI's standard, applicable alike to public and private recipients of federal funds, is no broader than the Constitution's, we have serious doubts concerning the correctness of what appears to be the premise of that decision.

Id. at 352, 98 S.Ct. at 2779. Although the Supreme Court in Bakke did not expressly overrule Lau, as we noted above, we understand the clear import of Bakke to be that Title VI, like the Equal Protection Clause, is violated only by conduct animated by an intent to discriminate and not by conduct which, although benignly motivated, has a differential impact on persons of different races. Whatever the deficiencies of the RISD's program of language remediation may be, we do not think it can seriously be asserted that this program was intended or designed to discriminate against Mexican-American students in the district. Thus, we think it cannot be said that the arguable inadequacies of the program render it violative of Title VI.

Plaintiffs, however, do not base their legal challenge to the district's language program solely on Title VI. They also claim that the district's current program is unlawful under § 1703(f) of the EEOA which makes it unlawful for an educational agency to fail to take "appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs." As we noted above in dissecting the meaning of § 1703(d) of the EEOA, we have very little legislative history from which to glean the Congressional intent behind the EEOA's provisions. Thus, as we did in examining § 1703(d), we shall adhere closely to the plain language of § 1703(f) in defining the meaning of this provision. Unlike subsections (a) and (e) of § 1703, § 1703(f) does not contain language that explicitly incorporates an intent requirement nor, like § 1703(d) which we construed above, does this subsection employ words such as "discrimination" whose legal definition has been understood to incorporate an intent requirement. Although we have not previously explicitly considered this question, in Morales v. Shannon, supra, we assumed that the failure of an educational agency to undertake appropriate efforts to remedy the language deficiencies of its students, regardless of whether such a failure is motivated by an intent to discriminate against those students, would violate § 1703(f) and we think that such a construction of that subsection is most consistent with the plain meaning of the language employed in § 1703(f). Thus, although serious doubts exist about the continuing vitality of Lau v. Nichols as a judicial interpretation of the requirements of Title VI or the fourteenth amendment, the essential holding of Lau, i.e., that schools are not free to ignore the need of limited English speaking children for language assistance to enable them to participate in the instructional program of the district, has now been legislated by Congress, acting pursuant to its power to enforce the fourteenth amendment, in § 1703(f). The difficult question presented by plaintiffs' challenge to the current language remediation programs in RISD is really whether Congress in enacting § 1703(f) intended to go beyond the essential requirement of Lau, that the schools do something, and impose, through the use of the term "appropriate action" a more specific obligation on state and local educational authorities.

In Pennhurst State School v. Halderman, ___ U.S. ___, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), the Supreme Court was called upon to determine the meaning of § 6010(1) and (2) of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001-6080, which stated in relevant part that:

Congress makes the following findings respecting the rights of persons with developmental disabilities:

(1) Persons with developmental disabilities have a right to appropriate treatment, services, and habilitation for such disabilities. (2) The treatment, services, and habilitation for a person with developmental disabilities should be designed to maximize the developmental potential of the person and should be provided in the setting that is least restrictive of the person's liberty. (3) The Federal Government and the States both have an obligation to assure that public funds are not provided to any institution . . . that (A) does not provide treatment, services, and habilitation which are not appropriate to the needs of such person; or (B) does not meet the following minimum standards. . . .

at ___, 101 S.Ct. at 1537. Plaintiffs in Pennhurst urged, and the Court of Appeals had agreed, that this section imposed upon states an affirmative obligation to provide "appropriate treatment" for the disabled and created certain substantive rights in their favor and a private right of action to sue for protection of these rights. The Supreme Court disagreed. The court, at the outset, analyzed the statute to determine whether Congress in enacting it had acted pursuant to § 5 of the fourteenth amendment or pursuant to the Spending Power and cautioned against implying a Congressional intent to act pursuant to § 5 of the fourteenth amendment, especially where such a construction would result in the imposition of affirmative obligations on the states. Id. at ___, 101 S.Ct. 1538.
Although we are sensitive to the need for restraint recognized by the Court in Pennhurst, it is undisputed in this case, and indeed indisputable, that in enacting the EEOA Congress acted pursuant to the powers given it in § 5 of the fourteenth amendment. The general declaration of policy contained in § 1701 and § 1702 of the EEOA expresses Congress' intent that the Act specify certain guarantees of equal opportunity and identify remedies for violations of these guarantees pursuant to its own powers under the fourteenth amendment without modifying or diminishing the authority of the courts to enforce the provisions of that amendment.

We do not believe that Congress, at the time it adopted the EEOA, intended to require local educational authorities to adopt any particular type of language remediation program. At the same time Congress enacted the EEOA, it passed the Bilingual Education Act of 1974, 20 U.S.C. § 880b et seq. (1976). The Bilingual Educational Act established a program of federal financial assistance intended to encourage local educational authorities to develop and implement bilingual education programs. The Bilingual Education Act implicitly embodied a recognition that bilingual education programs were still in experimental stages and that a variety of programs and techniques would have to be tried before it could be determined which were most efficacious. Thus, although the Act empowered the U.S. Office of Education to develop model programs, Congress expressly directed that the state and local agencies receiving funds under the Act were not required to adopt one of these model programs but were free to develop their own. Conf.Rep. No. 93-1026, 93d Cong., 2nd Sess. (1974), reprinted in U.S. Code Cong. Ad.News 4093, 4206.

We note that although Congress enacted both the Bilingual Education Act and the EEOA as part of the 1974 amendments to the Elementary and Secondary Education Act, Congress, in describing the remedial obligation it sought to impose on the states in the EEOA, did not specify that a state must provide a program of "bilingual education" to all limited English speaking students. We think Congress' use of the less specific term, "appropriate action," rather than "biligual education," indicates that Congress intended to leave state and local educational authorities a substantial amount of latitude in choosing the programs and techniques they would use to meet their obligations under the EEOA. However, by including an obligation to address the problem of language barriers in the EEOA and granting limited English speaking students a private right of action to enforce that obligation in § 1706, Congress also must have intended to insure that schools made a genuine and good faith effort, consistent with local circumstances and resources, to remedy the language deficiencies of their students and deliberately placed on federal courts the difficult responsibility of determining whether that obligation had been met.

Congress has provided us with almost no guidance, in the form of text or legislative history, to assist us in determining whether a school district's language remediation efforts are "appropriate." Thus we find ourselves confronted with a type of task which federal courts are ill-equipped to perform and which we are often criticized for undertaking - prescribing substantive standards and policies for institutions whose governance is properly reserved to other levels and branches of our government ( i. e., state and local educational agencies) which are better able to assimilate and assess the knowledge of professionals in the field. Confronted, reluctantly, with this type of task in this case, we have attempted to devise a mode of analysis which will permit ourselves and the lower courts to fulfill the responsibility Congress has assigned to us without unduly substituting our educational values and theories for the educational and political decisions reserved to state or local school authorities or the expert knowledge of educators.

In a case such as this one in which the appropriateness of a particular school system's language remediation program is challenged under § 1703(f), we believe that the responsibility of the federal court is threefold. First, the court must examine carefully the evidence the record contains concerning the soundness of the educational theory or principles upon which the challenged program is based. This, of course, is not to be done with any eye toward discerning the relative merits of sound but competing bodies of expert educational opinion, for choosing between sound but competing theories is properly left to the educators and public officials charged with responsibility for directing the educational policy of a school system. The state of the art in the area of language remediation may well be such that respected authorities legitimately differ as to the best type of educational program for limited English speaking students and we do not believe that Congress in enacting § 1703(f) intended to make the resolution of these differences the province of federal courts. The court's responsibility, insofar as educational theory is concerned, is only to ascertain that a school system is pursing a program informed by an educational theory recognized as sound by some experts in the field or, at least, deemed a legitimate experimental strategy.

The court's second inquiry would be whether the programs and practices actually used by a school system are reasonably calculated to implement effectively the educational theory adopted by the school. We do not believe that it may fairly be said that a school system is taking appropriate action to remedy language barriers if, despite the adoption of a promising theory, the system fails to follow through with practices, resources and personnel necessary to transform the theory into reality.

Finally, a determination that a school system has adopted a sound program for alleviating the language barriers impeding the educational progress of some of its students and made bona fide efforts to make the program work does not necessarily end the court's inquiry into the appropriateness of the system's actions. If a school's program, although premised on a legitimate educational theory and implemented through the use of adequate techniques, fails, after being employed for a period of time sufficient to give the plan a legitimate trial, to produce results indicating that the language barriers confronting students are actually being overcome, that program may, at that point, no longer constitute appropriate action as far as that school is concerned. We do not believe Congress intended that under § 1703(f) a school would be free to persist in a policy which, although it may have been "appropriate" when adopted, in the sense that there were sound expectations for success and bona fide efforts to make the program work, has, in practice, proved a failure.

With this framework to guide our analysis we now turn to review the district court's determination that the RISD's current language remediation programs were "appropriate action" within the meaning of § 1703(f). Implicit in this conclusion was a determination that the district had adequately implemented a sound program. In conducting this review, we shall consider this conclusion as a determination of a mixed question of fact and law. Therefore we shall be concerned with determining whether this conclusion was adequately supported by subsidiary findings of fact which do not appear clearly erroneous.

In this case, the plaintiffs' challenge to the appropriateness of the RISD's efforts to overcome the language barriers of its students does not rest on an argument over the soundness of the educational policy being pursued by the district, but rather on the alleged inadequacy of the program actually implemented by the district. Plaintiffs contend that in three areas essential to the adequacy of a bilingual program - curriculum, staff and testing Raymondville falls short. Plaintiffs contend that although RISD purports to offer a bilingual education program in grades K-3, the district's curriculum actually overemphasizes the development of reading and writing skills in English to the detriment of education in other areas such as mathematics and science, and that, as a result, children whose first language was Spanish emerge from the bilingual education program behind their classmates in these other areas. The record in this case does not support plaintiffs' allegation that the educational program for predominantly Spanish speaking students in grades K-3 provides significantly less attention to these other areas than does the curriculum used in the English language dominant classrooms. The bilingual education manual developed by the district outlines the basic classroom schedules for both Spanish dominant classrooms and English dominant classrooms. These schedules indicate that students in the Spanish language dominant classrooms spend almost exactly the same amount of classroom time on math, science and social studies as do their counterparts in the predominantly English speaking classrooms. The extra time that Spanish language dominant children spend on language development is drawn almost entirely from what might fairly be deemed the "extras" rather than the basic skills components of the elementary school curriculum, e.g., naps, music, creative writing and physical education.

The district court in its memorandum opinion observes that there was "almost total disagreement amongst the witnesses, experts and lay persons, as to the benefits of bilingual education and as to the proper method of implementing a bilingual education program if determined to be in the best interests of the students." Insofar as this statement was intended to suggest that there was uncertainty and disagreement manifested in the record about the effectiveness of the bilingual education program currently conducted in Raymondville, it is certainly correct. However, this statement should not be understood as suggesting that the record in this case presents a dispute about the value of bilingual education programs in general. The issue in this case was not the soundness or efficacy of bilingual education as an approach to language remediation, but rather the adequacy of the actual program implemented by RISD.

Even if we accept this allegation as true, however, we do not think that a school system which provides limited English speaking students with a curriculum, during the early part of their school career, which has, as its primary objective, the development of literacy in English, has failed to fulfill its obligations under § 1703(f), even if the result of such a program is an interim sacrifice of learning in other areas during this period. The language of § 1703(f) speaks in terms of taking action "to overcome language barriers" which impede the "equal participation" of limited English speaking children in the regular instructional program. We believe the statute clearly contemplates that provision of a program placing primary emphasis on the development of English language skills would constitute "appropriate action."

Limited English speaking students entering school face a task not encountered by students who are already proficient in English. Since the number of hours in any school day is limited, some of the time which limited English speaking children will spend learning English may be devoted to other subjects by students who entered school already proficient in English. In order to be able ultimately to participate equally with the students who entered school with an English language background, the limited English speaking students will have to acquire both English language proficiency comparable to that of the average native speakers and to recoup any deficits which they may incur in other areas of the curriculum as a result of this extra expenditure of time on English language development. We understand § 1703(f) to impose on educational agencies not only an obligation to overcome the direct obstacle to learning which the language barrier itself poses, but also a duty to provide limited English speaking ability students with assistance in other areas of the curriculum where their equal participation may be impaired because of deficits incurred during participation in an agency's language remediation program. If no remedial action is taken to overcome the academic deficits that limited English speaking students may incur during a period of intensive language training, then the language barrier, although itself remedied, might, nevertheless, pose a lingering and indirect impediment to these students' equal participation in the regular instructional program. We also believe, however, that § 1703(f) leaves schools free to determine whether they wish to discharge these obligations simultaneously, by implementing a program designed to keep limited English speaking students at grade level in other areas of the curriculum by providing instruction in their native language at the same time that an English language development effort is pursued, or to address these problems in sequence, by focusing first on the development of English language skills and then later providing students with compensatory and supplemental education to remedy deficiencies in other areas which they may develop during this period. In short, § 1703(f) leaves schools free to determine the sequence and manner in which limited English speaking students tackle this dual challenge so long as the schools design programs which are reasonably calculated to enable these students to attain parity of participation in the standard instructional program within a reasonable length of time after they enter the school system. Therefore, we disagree with plaintiffs' assertion that a school system which chooses to focus first on English language development and later provides students with an intensive remedial program to help them catch up in other areas of the curriculum has failed to fulfill its statutory obligation under § 1703(f).

Although we therefore find no merit in the plaintiffs' claim that RISD's language remediation programs are inappropriate under § 1703 because of the emphasis the curriculum allegedly places on English language development in the primary grades, we are more troubled by the plaintiffs' allegations that the district's implementation of the program has been severely deficient in the area of preparing its teaching for bilingual education. Although the plaintiffs raised this issue below and introduced evidence addressed to it, the district court made no findings on the adequacy of the teacher training program employed by RISD. We begin by noting that any school district that chooses to fulfill its obligations under § 1703 by means of a bilingual education program has undertaken a responsibility to provide teachers who are able competently to teach in such a program. The record in this case indicates that some of the teachers employed in the RISD bilingual program have a very limited command of Spanish, despite completion of the TEA course. Plaintiffs' expert witness, Dr. Jose Cardenas, was one of the bilingual educators who participated in the original design of the 100 hour continuing education course given to teachers already employed in RISD in order to prepare them to teach bilingual classes. He testified that a subsequent evaluation of the program showed that although it was effective in introducing teachers to the methodology of bilingual education and preparing them to teach the cultural history and awareness components of the bilingual education program, the course, was "a dismal failure in the development of sufficient proficiency in a language other than English to qualify the people for teaching bilingual programs." Although the witnesses familiar with the bilingual teachers in the Raymondville schools did not testify quite as vividly to the program's inadequacy, testimony of those involved in the RISD's program suggested that despite completion of the 100 hour course, some of the district's English speaking teachers were inadequately prepared to teach in a bilingual classroom. Mr. Inez Ibarra, who was employed by the district as bilingual supervisor prior to his appointment to the principalship of L. C. Smith School in 1977, testified in the administrative hearing that he had observed the teachers in the bilingual program at Raymondville and that some of the teachers had difficulty communicating in Spanish in the classroom and that there were teachers in the program who taught almost exclusively in English, using Spanish, at most, one day per week. He also described the evaluation program used to determine the Spanish proficiency of the teachers at the end of the 100 hour course. Teachers were required to write a paragraph in Spanish. Since in completing this task, they were permitted to use a Spanish-English dictionary, Ibarra acknowledged that this was not a valid measure of their Spanish vocabulary. Teachers also read orally from a Spanish language text and answered oral questions addressed to them by the RISD certification committee. There was no formal grading of the examination; the certification committee had no guide to measure the Spanish language vocabulary of the teachers based on their performance on the exam. Thus, it may well have been impossible for the committee to determine whether the teachers had mastered even the 700 word vocabulary the TEA had deemed the minimum to enable a teacher to work effectively in a bilingual elementary classroom. Following the examination, the committee would have an informal discussion among themselves and decide whether or not the teacher was qualified. Mr. Ibarra testified that the certification committee had approved some teachers who were, in his opinion, in need of more training - "much more than what they were given."

The only reference to the district's in-service teacher training program in the district court's memorandum opinion was an observation that RISD "is training non-Spanish speaking teachers in accordance with a State-administered program." This observation does not constitute a finding that this program was an adequate one, nor a finding that RISD teachers who complete the program are adequately prepared to be effective teachers in a bilingual classroom.

The record in this case thus raises serious doubts about the actual language competency of the teachers employed in bilingual classrooms by RISD and about the degree to which the district is making a genuine effort to assess and improve the qualifications of its bilingual teachers. As in any educational program, qualified teachers are a critical component of the success of a language remediation program. A bilingual education program, however sound in theory, is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children, if the teachers charged with day-to-day responsibility for educating these children are termed "qualified" despite the fact that they operate in the classroom under their own unremedied language disability. The use of Spanish speaking aides may be an appropriate interim measure, but such aides cannot, RISD acknowledges, take the place of qualified bilingual teachers. The record in this case strongly suggests that the efforts RISD has made to overcome the language barriers confronting many of the teachers assigned to the bilingual education program are inadequate. On this record, we think a finding to the contrary would be clearly erroneous. Nor can there be any question that deficiencies in the in-service training of teachers for bilingual classrooms seriously undermine the promise of the district's bilingual education program. Until deficiencies in this aspect of the program's implementation are remedied, we do not think RISD can be deemed to be taking "appropriate action" to overcome the language disabilities of its students. Although we certainly hope and expect that RISD will attempt to hire teachers who are already qualified to teach in a bilingual classroom as positions become available, we are by no means suggesting that teachers already employed by the district should be replaced or that the district is limited to hiring only teachers who are already qualified to teach in a bilingual program. We are requiring only that RISD undertake further measures to improve the ability of any teacher, whether now or hereafter employed, to teach effectively in a bilingual classroom.

On the current record, it is impossible for us to determine the extent to which the language deficiencies of some members of RISD's staff are the result of the inadequacies inherent in TEA's 100 hour program (including the 700 word requirement which may be an insufficient vocabulary) or the extent to which these deficiencies reflect a failure to master the material in that course. Therefore, on remand, the district court should attempt to identify more precisely the cause or causes of the Spanish language deficiencies experienced by some of the RISD's teachers and should require both TEA and RISD to devise an improved in-service training program and an adequate testing or evaluation procedure to assess the qualifications of teachers completing this program.

On remand, the district court should, of course, consider any improvements which may have been effected in RISD's in-service training program during the pendency of this litigation.

The third specific area in which plaintiffs claim that RISD programs are seriously deficient is in the testing and evaluation of students having limited English proficiency. Plaintiffs claim first that the language dominance placement test used to evaluate students entering Raymondville schools is inadequate. Although it appears that at the time of the administrative hearing in this case, RISD was not employing one of the language tests approved by the TEA, by the time of the trial in this civil suit RISD had adopted a test approved for this purpose by TEA. None of plaintiffs' expert witnesses testified that this test was an inappropriate one. Thus, we do not think there is any reason to believe that the district is deficient in the area of initial evaluation of students entering the bilingual program.

Dr. Jose Cardenas, plaintiff's principal expert witness on the subject of bilingual education, testified that he had no objection to the tests recommended by TEA for use in assessing students entering a bilingual education program. R. at 291. Mr. Inez Ibarra, employed as principal of the L. C. Smith School at the time of trial in this case and who had previously served as bilingual education supervisor for RISD, testified that RISD had adopted, for use beginning in the academic year 1978-79, the Powell Test for language placement which was "on top of the list" approved by TEA. R. at 366.

A more difficult question is whether the testing RISD employs to measure the progress of students in the bilingual education program is adequate. Plaintiffs, contend, RISD apparently does not deny, and we agree that proper testing and evaluation is essential in determining the progress of students involved in a bilingual program and ultimately, in evaluating the program itself. In their brief, plaintiffs contend that RISD's testing program is inadequate because the limited English speaking students in the bilingual program are not tested in their own language to determine their progress in areas of the curriculum other than English language literacy skills. Although during the bilingual program Spanish speaking students receive much of their instruction in these other areas in the Spanish language, the achievement level of these students is tested, in part, by the use of standardized English language achievement tests. No standardized Spanish language tests are used. Plaintiffs contend that testing the achievement levels of children, who are admittedly not yet literate in English and are receiving instruction in another language, through the use of an English language achievement test, does not meaningfully assess their achievement, any more than it does their ability, a contention with which we can scarcely disagree.

Valid testing of students' progress in these areas is, we believe, essential to measure the adequacy of a language remediation program. The progress of limited English speaking students in these other areas of the curriculum must be measured by means of a standardized test in their own language because no other device is adequate to determine their progress vis-a-vis that of their English speaking counterparts. Although, as we acknowledged above, we do not believe these students must necessarily be continuously maintained at grade level in other areas of instruction during the period in which they are mastering English, these students cannot be permitted to incur irreparable academic deficits during this period. Only by measuring the actual progress of students in these areas during the language remediation program can it be determined that such irremediable deficiencies are not being incurred. The district court on remand should require both TEA and RISD to implement an adequate achievement test program for RISD in accordance with this opinion. If, following the district court's inquiry into the ability grouping practices of the district, such practices are allowed to continue, we assume that Spanish language ability tests would be employed to place students who have not yet mastered the English language satisfactorily in ability groups.

Finally plaintiffs contend that test results indicate that the limited English speaking students who participate in the district's bilingual education program do not reach a parity of achievement with students who entered school already proficient in English at any time throughout the elementary grades and that since the district's language program has failed to establish such parity, it cannot be deemed "appropriate action" under § 1703(f). Although this question was raised at the district court level, no findings were made on this claim. While under some circumstances it may be proper for a court to examine the achievement scores of students involved in a language remediation program in order to determine whether this group appears on the whole to attain parity of participation with other students, we do not think that such an inquiry is, as yet, appropriate with regard to RISD. Such an inquiry may become proper after the inadequacies in the implementation of the RISD's program, which we have identified, have been corrected and the program has operated with the benefit of these improvements for a period of time sufficient to expect meaningful results.

We note also, that even in a case where inquiry into the results of a program is timely, achievement test scores of students should not be considered the only definitive measure of a program's effectiveness in remedying language barriers. Low test scores may well reflect many obstacles to learning other than language. We have no doubt that the process of delineating the causes of differences in performance among students may well be a complicated one.

To summarize, we affirm the district court's conclusion that RISD's bilingual education program is not violative of Title VI; however, we reverse the district court's judgment with respect to the other issues presented on appeal and we remand these issues for further proceedings not inconsistent with this opinion. Specifically, on remand, the district court is to inquire into the history of the RISD in order to determine whether, in the past, the district discriminated against Mexican-Americans, and then to consider whether the effects of any such past discrimination have been fully erased. The answers to these questions should, as we have noted in this opinion, illuminate the proper framework for assessment of the merits of the plaintiffs' claims that the ability grouping and employment practices of RISD are tainted by unlawful discrimination. If the court finds that the current record is lacking in evidence necessary to its determination of these questions, it may reopen the record and invite the parties to produce additional evidence.

The question of the legality of the district's language remediation program under 20 U.S.C. § 1703(f) is distinct from the ability grouping and teacher discrimination issues. Because an effective language remediation program is essential to the education of many students in Raymondville, we think it imperative that the district court, as soon as possible following the issuance of our mandate, conduct a hearing to identify the precise causes of the language deficiencies affecting some of the RISD teachers and to establish a time table for the parties to follow in devising and implementing a program to alleviate these deficiencies. The district court should also assure that RISD takes whatever steps are necessary to acquire validated Spanish language achievement tests for administration to students in the bilingual program at an appropriate time during the 1981-82 academic year.

AFFIRMED in part, REVERSED in part and REMANDED.

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Castaneda v. Pickard, 648 F.2d 989 | Casetext

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Plaintiffs, Mexican-American children and their parents who represent a class of others similarly situated, instituted this action against the Raymondville, Texas Independent School District (RISD) alleging that the district engaged in policies and practices of racial discrimination against Mexican-Americans which deprived the plaintiffs and their class of rights secured to them by the fourteenth amendment and 42 U.S.C.

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Slide 8 19 TAC §89.1201 (Policy, 19. Tex. Admin. Code § 89.1201)- Administrative Law

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Slide 8 19 TAC §89.1201 (Policy, 19. Tex. Admin. Code § 89.1201)- Administrative Law

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19 TAC §89.1201 states that every student in the state of Texas whose primary language is not English has the full opportunity to participate in bilingual or English as a Second Language (ESL) program. School districts should:

Identify English learners

Provide bilingual education and ESL programs

Seek appropriate teaching staff

Assess achievement for essential knowledge.

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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.

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Slide 7 Title III of the Elementary and Secondary Education Act of 1965 as Amended by the No Child Left Behind Act of 2001 (Elementary and Secondary Education Act of 1965, as amended, Title III, § 3111–3141; 20 U.S.C. 6821–6871)- Statutory Law

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Slide 7 Title III of the Elementary and Secondary Education Act of 1965 as Amended by the No Child Left Behind Act of 2001 (Elementary and Secondary Education Act of 1965, as amended, Title III, § 3111–3141; 20 U.S.C. 6821–6871)- Statutory Law

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This law gave funds to states to improve education for limited English proficient students meet state academic requirements. Funds must be:

Used to increase the English proficiency of English Language Learners by providing high-quality instructional programs

To provide professional development to school staff.

States must develop measurable achievement goals for English Language Learners to measure their achievement in academic English proficiency.

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SUBCHAPTER III-LANGUAGE INSTRUCTION FOR ENGLISH LEARNERS AND IMMIGRANT STUDENTS

Codification

Pub. L. 114-95, title III, §3001(1), Dec. 10, 2015, 129 Stat. 1953, substituted "ENGLISH LEARNERS" for "LIMITED ENGLISH PROFICIENT" in subchapter heading.

Title III of the Elementary and Secondary Education Act of 1965, comprising this subchapter, was originally enacted as part of Pub. L. 89-10, Apr. 11, 1965, 79 Stat. 27, amended, and subsequently revised, restated, and amended by other public laws. Title III is shown, herein, as having been added by Pub. L. 107-110, title III, §301, Jan. 8, 2002, 115 Stat. 1689, without reference to earlier amendments because of the extensive revision of the title's provisions by Pub. L. 107-110. See Codification note preceding section 6301 of this title.

§6801. Authorization of appropriations

There are authorized to be appropriated to carry out this subchapter-

(1) $756,332,450 for fiscal year 2017;

(2) $769,568,267 for fiscal year 2018;

(3) $784,959,633 for fiscal year 2019; and

(4) $884,959,633 for fiscal year 2020.

Prior Provisions

A prior section 3001 of Pub. L. 89-10 was classified to section 3021 of this title, prior to the general amendment of Pub. L. 89-10 by Pub. L. 103-382.

Amendments

2015- Pub. L. 114-95 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (c) relating to authorizations of appropriations, conditions on effectiveness of parts A and B of this subchapter, and references to parts A and B of this subchapter.

Effective Date of 2015 Amendment

Part A-English Language Acquisition, Language Enhancement, and Academic Achievement Act

§6811. Short title

This part may be cited as the "English Language Acquisition, Language Enhancement, and Academic Achievement Act".

Prior Provisions

§6812. Purposes

The purposes of this part are-

(1) to help ensure that English learners, including immigrant children and youth, attain English proficiency and develop high levels of academic achievement in English;

(2) to assist all English learners, including immigrant children and youth, to achieve at high levels in academic subjects so that all English learners can meet the same challenging State academic standards that all children are expected to meet;

(3) to assist teachers (including preschool teachers), principals and other school leaders, State educational agencies, local educational agencies, and schools in establishing, implementing, and sustaining effective language instruction educational programs designed to assist in teaching English learners, including immigrant children and youth;

(4) to assist teachers (including preschool teachers), principals and other school leaders, State educational agencies, and local educational agencies to develop and enhance their capacity to provide effective instructional programs designed to prepare English learners, including immigrant children and youth, to enter all-English instructional settings; and

(5) to promote parental, family, and community participation in language instruction educational programs for the parents, families, and communities of English learners.

Prior Provisions

Prior sections 6813 to 6815 were omitted in the general amendment of this subchapter by Pub. L. 107-110.

Section 6813, Pub. L. 89-10, title III, §3113, as added Pub. L. 103-382, title I, §101, Oct. 20, 1994, 108 Stat. 3639; amended Pub. L. 104-208, div. A, title I, §101(e) [title VII, §709(a)(1), (3)], Sept. 30, 1996, 110 Stat. 3009-233, 3009-312; Pub. L. 105-220, title II, §251(b)(2)(D), Aug. 7, 1998, 112 Stat. 1080, defined terms for purposes of prior subchapter III.

Amendments

2015- Pub. L. 114-95 amended section generally. Prior to amendment, section related to purposes of this part.

Effective Date of 2015 Amendment

subpart 1-grants and subgrants for english language acquisition and language enhancement

§6821. Formula grants to States

(a) In general

In the case of each State educational agency having a plan approved by the Secretary for a fiscal year under section 6823 of this title, the Secretary shall make a grant for the year to the agency for the purposes specified in subsection (b). The grant shall consist of the allotment determined for the State educational agency under subsection (c).

(b) Use of funds

(1) Subgrants to eligible entities

The Secretary may make a grant under subsection (a) only if the State educational agency involved agrees to expend at least 95 percent of the State educational agency's allotment under subsection (c) for a fiscal year-

(A) to award subgrants, from allocations under section 6824 of this title, to eligible entities to carry out the activities described in section 6825 of this title (other than subsection (e)); and

(B) to award subgrants under section 6824(d)(1) of this title to eligible entities that are described in that section to carry out the activities described in section 6825(e) of this title.

(2) State activities

Subject to paragraph (3), each State educational agency receiving a grant under subsection (a) may reserve not more than 5 percent of the agency's allotment under subsection (c) to carry out one or more of the following activities:

(A) Establishing and implementing, with timely and meaningful consultation with local educational agencies representing the geographic diversity of the State, standardized statewide entrance and exit procedures, including a requirement that all students who may be English learners are assessed for such status within 30 days of enrollment in a school in the State.

(B) Providing effective teacher and principal preparation, effective professional development activities, and other effective activities related to the education of English learners, which may include assisting teachers, principals, and other educators in-

(i) meeting State and local certification and licensing requirements for teaching English learners; and

(ii) improving teaching skills in meeting the diverse needs of English learners, including how to implement effective programs and curricula on teaching English learners.

(C) Planning, evaluation, administration, and interagency coordination related to the subgrants referred to in paragraph (1).

(D) Providing technical assistance and other forms of assistance to eligible entities that are receiving subgrants from a State educational agency under this subpart, including assistance in-

(i) identifying and implementing effective language instruction educational programs and curricula for teaching English learners;

(ii) helping English learners meet the same challenging State academic standards that all children are expected to meet;

(iii) identifying or developing, and implementing, measures of English proficiency; and

(iv) strengthening and increasing parent, family, and community engagement in programs that serve English learners.

(E) Providing recognition, which may include providing financial awards, to recipients of subgrants under section 6825 of this title that have significantly improved the achievement and progress of English learners in meeting-

(i) the State-designed long-term goals established under section 6311(c)(4)(A)(ii) of this title, including measurements of interim progress towards meeting such goals, based on the State's English language proficiency assessment under section 6311(b)(2)(G) of this title; and

(ii) the challenging State academic standards.

(3) Direct administrative expenses

From the amount reserved under paragraph (2), a State educational agency may use not more than 50 percent of such amount or $175,000, whichever is greater, for the planning and direct administrative costs of carrying out paragraphs (1) and (2).

(c) Reservations and allotments

(1) Reservations

From the amount appropriated under section 6801 of this title for each fiscal year, the Secretary shall reserve-

(A) 0.5 percent or $5,000,000 of such amount, whichever is greater, for payments to eligible entities that are defined under section 6822(a) of this title for activities, approved by the Secretary, consistent with this subpart;

(B) 0.5 percent of such amount for payments to outlying areas, to be allotted in accordance with their respective needs for assistance under this subpart, as determined by the Secretary, for activities, approved by the Secretary, consistent with this subpart; and

(C) 6.5 percent of such amount for national activities under sections 6861 and 7013 of this title, except that not more than $2,000,000 of such amount may be reserved for the National Clearinghouse for English Language Acquisition and Language Instruction Educational Programs described in section 7013 of this title.

(2) State allotments

(A) In general

Except as provided in subparagraph (B), from the amount appropriated under section 6801 of this title for each fiscal year that remains after making the reservations under paragraph (1), the Secretary shall allot to each State educational agency having a plan approved under section 6823(c) of this title -

(i) an amount that bears the same relationship to 80 percent of the remainder as the number of English learners in the State bears to the number of English learners in all States, as determined in accordance with paragraph (3)(A); and

(ii) an amount that bears the same relationship to 20 percent of the remainder as the number of immigrant children and youth in the State bears to the number of such children and youth in all States, as determined in accordance with paragraph (3)(B).

(B) Minimum allotments

No State educational agency shall receive an allotment under this paragraph that is less than $500,000.

(C) Reallotment

If any State educational agency described in subparagraph (A) does not submit a plan to the Secretary for a fiscal year, or submits a plan (or any amendment to a plan) that the Secretary, after reasonable notice and opportunity for a hearing, determines does not satisfy the requirements of this subpart, the Secretary-

(i) shall endeavor to make the State's allotment available on a competitive basis to specially qualified agencies within the State to satisfy the requirements of section 6825 of this title (and any additional requirements that the Secretary may impose), consistent with the purposes of such section, and to carry out required and authorized activities under such section; and

(ii) shall reallot any portion of such allotment remaining after the application of clause (i) to the remaining State educational agencies in accordance with subparagraph (A).

(D) Special rule for Puerto Rico

The total amount allotted to Puerto Rico for any fiscal year under subparagraph (A) shall not exceed 0.5 percent of the total amount allotted to all States for that fiscal year.

(3) Use of data for determinations

In making State allotments under paragraph (2) for each fiscal year, the Secretary shall-

(A) determine the number of English learners in a State and in all States, using the most accurate, up-to-date data, which shall be-

(i) data available from the American Community Survey conducted by the Department of Commerce, which may be multiyear estimates;

(ii) the number of students being assessed for English language proficiency, based on the State's English language proficiency assessment under section 6311(b)(2)(G) of this title, which may be multiyear estimates; or

(iii) a combination of data available under clauses (i) and (ii); and

(B) determine the number of immigrant children and youth in the State and in all States based only on data available from the American Community Survey conducted by the Department of Commerce, which may be multiyear estimates.

Prior Provisions

Amendments

2015-Subsec. (b)(2). Pub. L. 114-95, §3003(b)(1)(A), added subpars. (A) to (E) and struck out former subpars. (A) to (D) which read as follows:

"(A) Professional development activities, and other activities, that assist personnel in meeting State and local certification and licensing requirements for teaching limited English proficient children.

"(B) Planning, evaluation, administration, and interagency coordination related to the subgrants referred to in paragraph (1).

"(C) Providing technical assistance and other forms of assistance to eligible entities that are receiving subgrants from a State educational agency under this subpart, including assistance in-

"(i) identifying and implementing language instruction educational programs and curricula that are based on scientifically based research on teaching limited English proficient children;

"(ii) helping limited English proficient children meet the same challenging State academic content and student academic achievement standards as all children are expected to meet;

"(iii) identifying or developing, and implementing, measures of English proficiency; and

"(iv) promoting parental and community participation in programs that serve limited English proficient children.

"(D) Providing recognition, which may include providing financial awards, to subgrantees that have exceeded their annual measurable achievement objectives pursuant to section 6842 of this title."

Subsec. (b)(3). Pub. L. 114-95, §3003(b)(1)(B), substituted "Direct administrative" for "Administrative" in heading and substituted "50 percent" for "60 percent" and inserted "direct" before "administrative costs" in text.

Subsec. (c)(1). Pub. L. 114-95, §3003(b)(2)(A)(i), substituted "section 6801" for "section 6801(a)" in introductory provisions.

Subsec. (c)(1)(B). Pub. L. 114-95, §3003(b)(2)(A)(ii), inserted "and" after semicolon at end.

Subsec. (c)(1)(C). Pub. L. 114-95, §3003(b)(2)(A)(iii), added subpar. (C) and struck out former subpar. (C) which read as follows: "6.5 percent of such amount for national activities under sections 6861 and 7013 of this title, except that not more than 0.5 percent of such amount shall be reserved for evaluation activities conducted by the Secretary and not more than $2,000,000 of such amount may be reserved for the National Clearinghouse for English Language Acquisition and Language Instruction Educational Programs described in section 7013 of this title; and".

Subsec. (c)(1)(D). Pub. L. 114-95, §3003(b)(2)(A)(iv), struck out subpar. (D) which read as follows: "such sums as may be necessary to make continuation awards under paragraph (2)."

Subsec. (c)(2). Pub. L. 114-95, §3003(b)(2)(B), (C), redesignated par. (3) as (2) and struck out former par. (2) which related to continuation awards.

Subsec. (c)(2)(A). Pub. L. 114-95, §3003(b)(2)(D)(i), substituted "section 6801" for "section 6801(a)" in introductory provisions.

Subsec. (c)(2)(A)(i). Pub. L. 114-95, §3003(b)(2)(D)(ii), substituted "English learners in the State bears to the number of English learners in all States, as determined in accordance with paragraph (3)(A); and" for "limited English proficient children in the State bears to the number of such children in all States; and".

Subsec. (c)(2)(A)(ii). Pub. L. 114-95, §3003(b)(2)(D)(iii), inserted ", as determined in accordance with paragraph (3)(B)" before period at end.

Subsec. (c)(3). Pub. L. 114-95, §3003(b)(2)(E), added par. (3). Former par. (3) redesignated (2).

Subsec. (c)(4). Pub. L. 114-95, §3003(b)(2)(B), struck out par. (4) which related to use of data for determinations.

Effective Date of 2015 Amendment

§6822. Native American and Alaska Native children in school

(a) Eligible entities

For the purpose of carrying out programs under this part for individuals served by elementary schools, secondary schools, and postsecondary schools operated predominately for Native American children (including Alaska Native children), the following shall be considered to be an eligible entity:

(1) An Indian tribe.

(2) A tribally sanctioned educational authority.

(3) A Native Hawaiian or Native American Pacific Islander native language educational organization.

(4) An elementary school or secondary school that is operated or funded by the Bureau of Indian Education, or a consortium of such schools.

(5) An elementary school or secondary school operated under a contract with or grant from the Bureau of Indian Education, in consortium with another such school or a tribal or community organization.

(6) An elementary school or secondary school operated by the Bureau of Indian Education and an institution of higher education, in consortium with an elementary school or secondary school operated under a contract with or grant from the Bureau of Indian Education or a tribal or community organization.

(b) Submission of applications for assistance

Notwithstanding any other provision of this part, an entity that is considered to be an eligible entity under subsection (a), and that desires to receive Federal financial assistance under this subpart, shall submit an application to the Secretary.

(c) Special rule

An eligible entity described in subsection (a) that receives Federal financial assistance pursuant to this section shall not be eligible to receive a subgrant under section 6824 of this title.

Prior Provisions

Amendments

2015-Subsec. (a)(4) to (6). Pub. L. 114-95 substituted "Bureau of Indian Education" for "Bureau of Indian Affairs" wherever appearing.

Effective Date of 2015 Amendment

§6823. State and specially qualified agency plans

(a) Plan required

Each State educational agency and specially qualified agency desiring a grant under this subpart shall submit a plan to the Secretary at such time and in such manner as the Secretary may require.

(b) Contents

Each plan submitted under subsection (a) shall-

(1) describe the process that the agency will use in awarding subgrants to eligible entities under section 6824(d)(1) of this title;

(2) describe how the agency will establish and implement, with timely and meaningful consultation with local educational agencies representing the geographic diversity of the State, standardized, statewide entrance and exit procedures, including an assurance that all students who may be English learners are assessed for such status within 30 days of enrollment in a school in the State;

(3) provide an assurance that-

(A) the agency will ensure that eligible entities receiving a subgrant under this subpart comply with the requirement in section 6311(b)(2)(B)(ix) of this title regarding assessment of English learners in English;

(B) the agency will ensure that eligible entities receiving a subgrant under this subpart annually assess the English proficiency of all English learners participating in a program funded under this subpart, consistent with section 6311(b)(2)(G) of this title;

(C) in awarding subgrants under section 6824 of this title, the agency will address the needs of school systems of all sizes and in all geographic areas, including school systems with rural and urban schools;

(D) subgrants to eligible entities under section 6824(d)(1) of this title will be of sufficient size and scope to allow such entities to carry out effective language instruction educational programs for English learners;

(E) the agency will require an eligible entity receiving a subgrant under this subpart to use the subgrant in ways that will build such recipient's capacity to continue to offer effective language instruction educational programs that assist English learners in meeting challenging State academic standards;

(F) the agency will monitor each eligible entity receiving a subgrant under this subpart for compliance with applicable Federal fiscal requirements; and

(G) the plan has been developed in consultation with local educational agencies, teachers, administrators of programs implemented under this subpart, parents of English learners, and other relevant stakeholders;

(4) describe how the agency will coordinate its programs and activities under this subpart with other programs and activities under this chapter and other Acts, as appropriate;

(5) describe how each eligible entity will be given the flexibility to teach English learners-

(A) using a high-quality, effective language instruction curriculum for teaching English learners; and

(B) in the manner the eligible entity determines to be the most effective;

(6) describe how the agency will assist eligible entities in meeting-

(A) the State-designed long-term goals established under section 6311(c)(4)(A)(ii) of this title, including measurements of interim progress towards meeting such goals, based on the State's English language proficiency assessment under section 6311(b)(2)(G) of this title; and

(B) the challenging State academic standards;

(7) describe how the agency will meet the unique needs of children and youth in the State being served through the reservation of funds under section 6824(d) of this title; and

(8) describe-

(A) how the agency will monitor the progress of each eligible entity receiving a subgrant under this subpart in helping English learners achieve English proficiency; and

(B) the steps the agency will take to further assist eligible entities if the strategies funded under this subpart are not effective, such as providing technical assistance and modifying such strategies.

(c) Approval

The Secretary, after using a peer review process, shall approve a plan submitted under subsection (a) if the plan meets the requirements of this section.

(d) Duration of plan

(1) In general

Each plan submitted by a State educational agency or specially qualified agency and approved under subsection (c) shall-

(A) remain in effect for the duration of the agency's participation under this subpart; and

(B) be periodically reviewed and revised by the agency, as necessary, to reflect changes to the agency's strategies and programs carried out under this subpart.

(2) Additional information

(A) Amendments

If the State educational agency or specially qualified agency amends the plan, the agency shall submit such amendment to the Secretary.

(B) Approval

The Secretary shall approve such amendment to an approved plan, unless the Secretary determines that the amendment will result in the agency not meeting the requirements, or fulfilling the purposes, of this subpart.

(e) Consolidated plan

A plan submitted under subsection (a) may be submitted as part of a consolidated plan under section 7842 of this title.

(f) Secretary assistance

The Secretary shall provide technical assistance, if requested by the State, in the development of English proficiency standards and assessments.

Prior Provisions

Amendments

2015-Subsec. (a). Pub. L. 114-95, §3003(d)(1), substituted "and in such manner" for ", in such manner, and containing such information".

Subsec. (b)(1). Pub. L. 114-95, §3003(d)(2)(A), substituted "awarding" for "making".

Subsec. (b)(2) to (8). Pub. L. 114-95, §3003(d)(2)(B), added pars. (2) to (8) and struck out former pars. (2) to (6) which related to establishing standards and objectives for raising the level of English proficiency, assurances by the agency, coordination of programs and activities under this subpart with other programs and activities, accountability, and flexibility in teaching limited English proficient children, respectively.

Subsec. (d). Pub. L. 114-95, §3003(d)(3), substituted "this subpart" for "this part" wherever appearing.

Subsec. (e). Pub. L. 114-95, §3003(d)(4), made technical amendment to reference in original act which appears in text as reference to section 7842 of this title.

Subsec. (f). Pub. L. 114-95, §3003(d)(5), inserted "by the State" after "if requested" and struck out ", objectives," after "proficiency standards".

Effective Date of 2015 Amendment

§6824. Within-State allocations

(a) In general

After making the reservation required under subsection (d)(1), each State educational agency receiving a grant under section 6821(c)(2) of this title shall award subgrants for a fiscal year by allocating in a timely manner to each eligible entity in the State having a plan approved under section 6826 of this title an amount that bears the same relationship to the amount received under the grant and remaining after making such reservation as the population of English learners in schools served by the eligible entity bears to the population of English learners in schools served by all eligible entities in the State.

(b) Limitation

A State educational agency shall not award a subgrant from an allocation made under subsection (a) if the amount of such subgrant would be less than $10,000.

(c) Reallocation

Whenever a State educational agency determines that an amount from an allocation made to an eligible entity under subsection (a) for a fiscal year will not be used by the entity for the purpose for which the allocation was made, the agency shall, in accordance with such rules as it determines to be appropriate, reallocate such amount, consistent with such subsection, to other eligible entities in the State that the agency determines will use the amount to carry out that purpose.

(d) Required reservation

A State educational agency receiving a grant under this subpart for a fiscal year-

(1) shall reserve not more than 15 percent of the agency's allotment under section 6821(c)(2) of this title to award subgrants to eligible entities in the State that have experienced a significant increase, as compared to the average of the 2 preceding fiscal years, in the percentage or number of immigrant children and youth, who have enrolled, during the fiscal year for which the subgrant is made, in public and nonpublic elementary schools and secondary schools in the geographic areas under the jurisdiction of, or served by, such entities; and

(2) in awarding subgrants under paragraph (1)-

(A) shall equally consider eligible entities that satisfy the requirement of such paragraph but have limited or no experience in serving immigrant children and youth; and

(B) shall consider the quality of each local plan under section 6826 of this title and ensure that each subgrant is of sufficient size and scope to meet the purposes of this part.

Prior Provisions

Amendments

2015-Subsec. (a). Pub. L. 114-95, §3003(e)(1), added subsec. (a) and struck out former subsec. (a). Prior to amendment, text read as follows: "After making the reservation required under subsection (d)(1) of this section, each State educational agency receiving a grant under section 6821(c)(3) of this title shall award subgrants for a fiscal year by allocating to each eligible entity in the State having a plan approved under section 6826 of this title an amount that bears the same relationship to the amount received under the grant and remaining after making such reservation as the population of limited English proficient children in schools served by the eligible entity bears to the population of limited English proficient children in schools served by all eligible entities in the State."

Subsec. (d)(1). Pub. L. 114-95, §3003(e)(2), substituted "section 6821(c)(2)" for "section 6821(c)(3)" and struck out "preceding the fiscal year" before "for which the subgrant is made".

Effective Date of 2015 Amendment

§6825. Subgrants to eligible entities

(a) Purposes of subgrants

A State educational agency may make a subgrant to an eligible entity from funds received by the agency under this subpart only if the entity agrees to expend the funds to improve the education of English learners by assisting the children to learn English and meet the challenging State academic standards. In carrying out activities with such funds, the eligible entity shall use effective approaches and methodologies for teaching English learners and immigrant children and youth for the following purposes:

(1) Developing and implementing new language instruction educational programs and academic content instructional programs for English learners and immigrant children and youth, including early childhood education programs, elementary school programs, and secondary school programs.

(2) Carrying out highly focused, innovative, locally designed activities to expand or enhance existing language instruction educational programs and academic content instructional programs for English learners and immigrant children and youth.

(3) Implementing, within an individual school, schoolwide programs for restructuring, reforming, and upgrading all relevant programs, activities, and operations relating to language instruction educational programs and academic content instruction for English learners and immigrant children and youth.

(4) Implementing, within the entire jurisdiction of a local educational agency, agencywide programs for restructuring, reforming, and upgrading all relevant programs, activities, and operations relating to language instruction educational programs and academic content instruction for English learners and immigrant children and youth.

(b) Direct administrative expenses

Each eligible entity receiving funds under section 6824(a) of this title for a fiscal year may use not more than 2 percent of such funds for the cost of administering this subpart.

(c) Required subgrantee activities

An eligible entity receiving funds under section 6824(a) of this title shall use the funds-

(1) to increase the English language proficiency of English learners by providing effective language instruction educational programs that meet the needs of English learners and demonstrate success in increasing-

(A) English language proficiency; and

(B) student academic achievement;

(2) to provide effective professional development to classroom teachers (including teachers in classroom settings that are not the settings of language instruction educational programs), principals and other school leaders, administrators, and other school or community-based organizational personnel, that is-

(A) designed to improve the instruction and assessment of English learners;

(B) designed to enhance the ability of such teachers, principals, and other school leaders to understand and implement curricula, assessment practices and measures, and instructional strategies for English learners;

(C) effective in increasing children's English language proficiency or substantially increasing the subject matter knowledge, teaching knowledge, and teaching skills of such teachers; and

(D) of sufficient intensity and duration (which shall not include activities such as 1-day or short-term workshops and conferences) to have a positive and lasting impact on the teachers' performance in the classroom, except that this subparagraph shall not apply to an activity that is one component of a long-term, comprehensive professional development plan established by a teacher and the teacher's supervisor based on an assessment of the needs of the teacher, the supervisor, the students of the teacher, and any local educational agency employing the teacher, as appropriate; and

(3) to provide and implement other effective activities and strategies that enhance or supplement language instruction educational programs for English learners, which-

(A) shall include parent, family, and community engagement activities; and

(B) may include strategies that serve to coordinate and align related programs.

(d) Authorized subgrantee activities

Subject to subsection (c), an eligible entity receiving funds under section 6824(a) of this title may use the funds to achieve any of the purposes described in subsection (a) by undertaking 1 or more of the following activities:

(1) Upgrading program objectives and effective instructional strategies.

(2) Improving the instructional program for English learners by identifying, acquiring, and upgrading curricula, instructional materials, educational software, and assessment procedures.

(3) Providing to English learners-

(A) tutorials and academic or career and technical education; and

(B) intensified instruction, which may include materials in a language that the student can understand, interpreters, and translators.

(4) Developing and implementing effective preschool, elementary school, or secondary school language instruction educational programs that are coordinated with other relevant programs and services.

(5) Improving the English language proficiency and academic achievement of English learners.

(6) Providing community participation programs, family literacy services, and parent and family outreach and training activities to English learners and their families-

(A) to improve the English language skills of English learners; and

(B) to assist parents and families in helping their children to improve their academic achievement and becoming active participants in the education of their children.

(7) Improving the instruction of English learners, which may include English learners with a disability, by providing for-

(A) the acquisition or development of educational technology or instructional materials;

(B) access to, and participation in, electronic networks for materials, training, and communication; and

(C) incorporation of the resources described in subparagraphs (A) and (B) into curricula and programs, such as those funded under this subpart.

(8) Offering early college high school or dual or concurrent enrollment programs or courses designed to help English learners achieve success in postsecondary education.

(9) Carrying out other activities that are consistent with the purposes of this section.

(e) Activities by agencies experiencing substantial increases in immigrant children and youth

(1) In general

An eligible entity receiving funds under section 6824(d)(1) of this title shall use the funds to pay for activities that provide enhanced instructional opportunities for immigrant children and youth, which may include-

(A) family literacy, parent and family outreach, and training activities designed to assist parents and families to become active participants in the education of their children;

(B) recruitment of, and support for, personnel, including teachers and paraprofessionals who have been specifically trained, or are being trained, to provide services to immigrant children and youth;

(C) provision of tutorials, mentoring, and academic or career counseling for immigrant children and youth;

(D) identification, development, and acquisition of curricular materials, educational software, and technologies to be used in the program carried out with awarded funds;

(E) basic instructional services that are directly attributable to the presence of immigrant children and youth in the local educational agency involved, including the payment of costs of providing additional classroom supplies, costs of transportation, or such other costs as are directly attributable to such additional basic instructional services;

(F) other instructional services that are designed to assist immigrant children and youth to achieve in elementary schools and secondary schools in the United States, such as programs of introduction to the educational system and civics education; and

(G) activities, coordinated with community-based organizations, institutions of higher education, private sector entities, or other entities with expertise in working with immigrants, to assist parents and families of immigrant children and youth by offering comprehensive community services.

(2) Duration of subgrants

The duration of a subgrant made by a State educational agency under section 6824(d)(1) of this title shall be determined by the agency in its discretion.

(f) Selection of method of instruction

(1) In general

To receive a subgrant from a State educational agency under this subpart, an eligible entity shall select one or more methods or forms of effective instruction to be used in the programs and activities undertaken by the entity to assist English learners to attain English language proficiency and meet challenging State academic standards.

(2) Consistency

The selection described in paragraph (1) shall be consistent with sections 6845 through 6847 of this title.

(g) Supplement, not supplant

Federal funds made available under this subpart shall be used so as to supplement the level of Federal, State, and local public funds that, in the absence of such availability, would have been expended for programs for English learners and immigrant children and youth and in no case to supplant such Federal, State, and local public funds.

Prior Provisions

Amendments

2015- Pub. L. 114-95 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (g) relating to subgrants to eligible entities.

Effective Date of 2015 Amendment

§6826. Local plans

(a) Plan required

Each eligible entity desiring a subgrant from the State educational agency under section 6824 of this title shall submit a plan to the State educational agency at such time, in such manner, and containing such information as the State educational agency may require.

(b) Contents

Each plan submitted under subsection (a) shall-

(1) describe the effective programs and activities, including language instruction educational programs, proposed to be developed, implemented, and administered under the subgrant that will help English learners increase their English language proficiency and meet the challenging State academic standards;

(2) describe how the eligible entity will ensure that elementary schools and secondary schools receiving funds under this subpart assist English learners in-

(A) achieving English proficiency based on the State's English language proficiency assessment under section 6311(b)(2)(G) of this title, consistent with the State's long-term goals, as described in section 6311(c)(4)(A)(ii) of this title; and

(B) meeting the challenging State academic standards;

(3) describe how the eligible entity will promote parent, family, and community engagement in the education of English learners;

(4) contain assurances that-

(A) each local educational agency that is included in the eligible entity is complying with section 6312(e) of this title prior to, and throughout, each school year as of the date of application;

(B) the eligible entity is not in violation of any State law, including State constitutional law, regarding the education of English learners, consistent with sections 6846 and 6847 of this title;

(C) the eligible entity consulted with teachers, researchers, school administrators, parents and family members, community members, public or private entities, and institutions of higher education, in developing and implementing such plan; and

(D) the eligible entity will, if applicable, coordinate activities and share relevant data under the plan with local Head Start and Early Head Start agencies, including migrant and seasonal Head Start agencies, and other early childhood education providers.

(c) Teacher English fluency

Each eligible entity receiving a subgrant under section 6824 of this title shall include in its plan a certification that all teachers in any language instruction educational program for English learners that is, or will be, funded under this part are fluent in English and any other language used for instruction, including having written and oral communications skills.

Prior Provisions

Prior sections 6831 to 6833 were omitted in the general amendment of this subchapter by Pub. L. 107-110.

Amendments

2015-Subsec. (b). Pub. L. 114-95, §3003(g)(1), added pars. (1) to (4) and struck out former pars. (1) to (6) which set out required content of plans submitted under subsec. (a).

Subsec. (c). Pub. L. 114-95, §3003(g)(2), substituted "English learners" for "limited English proficient children".

Subsec. (d). Pub. L. 114-95, §3003(g)(3), struck out subsec. (d) which related to other requirements for approval.

Effective Date of 2015 Amendment

subpart 2-accountability and administration

§6841. Reporting

(a) In general

Each eligible entity that receives a subgrant from a State educational agency under subpart 1 shall provide such agency, at the conclusion of every second fiscal year during which the subgrant is received, with a report, in a form prescribed by the agency, on the activities conducted and children served under such subpart that includes-

(1) a description of the programs and activities conducted by the entity with funds received under subpart 1 during the 2 immediately preceding fiscal years, which shall include a description of how such programs and activities supplemented programs funded primarily with State or local funds;

(2) the number and percentage of English learners in the programs and activities who are making progress toward achieving English language proficiency, as described in section 6311(c)(4)(A)(ii) of this title, in the aggregate and disaggregated, at a minimum, by English learners with a disability;

(3) the number and percentage of English learners in the programs and activities attaining English language proficiency based on State English language proficiency standards established under section 6311(b)(1)(G) of this title by the end of each school year, as determined by the State's English language proficiency assessment under section 6311(b)(2)(G) of this title;

(4) the number and percentage of English learners who exit the language instruction educational programs based on their attainment of English language proficiency;

(5) the number and percentage of English learners meeting challenging State academic standards for each of the 4 years after such children are no longer receiving services under this part, in the aggregate and disaggregated, at a minimum, by English learners with a disability;

(6) the number and percentage of English learners who have not attained English language proficiency within 5 years of initial classification as an English learner and first enrollment in the local educational agency; and

(7) any other information that the State educational agency may require.

(b) Use of report

A report provided by an eligible entity under subsection (a) shall be used by the entity and the State educational agency for improvement of programs and activities under this part.

(c) Special rule for specially qualified agencies

Each specially qualified agency receiving a grant under subpart 1 shall provide the reports described in subsection (a) to the Secretary subject to the same requirements as apply to eligible entities providing such evaluations to State educational agencies under such subsection.

Prior Provisions

Amendments

2015- Pub. L. 114-95 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (e) relating to evaluations.

Effective Date of 2015 Amendment

Effective Date of Repeal

Repeal effective Dec. 10, 2015, except with respect to certain noncompetitive programs and competitive programs, see section 5 of Pub. L. 114-95, set out as an Effective Date of 2015 Amendment note under section 6301 of this title.

§6843. Biennial reports

(a) States

Based upon the reports provided to a State educational agency under section 6841 of this title, each such agency that receives a grant under this part shall prepare and submit every second year to the Secretary a report on programs and activities carried out by the State educational agency under this part and the effectiveness of such programs and activities in improving the education provided to English learners.

(b) Secretary

Every second year, the Secretary shall prepare and submit to the Committee on Education and the Workforce of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate a report-

(1) on programs and activities carried out to serve English learners under this part, and the effectiveness of such programs and activities in improving the academic achievement and English proficiency of English learners;

(2) on the types of language instruction educational programs used by local educational agencies or eligible entities receiving funding under this part to teach English learners;

(3) containing a critical synthesis of data reported by eligible entities to States under section 6841(a) of this title;

(4) containing a description of technical assistance and other assistance provided by State educational agencies under section 6821(b)(2)(D) of this title;

(5) containing an estimate of the number of certified or licensed teachers working in language instruction educational programs and educating English learners, and an estimate of the number of such teachers that will be needed for the succeeding 5 fiscal years;

(6) containing the findings of the most recent evaluation related to English learners carried out under section 7981 of this title;

(7) containing the number of programs or activities, if any, that were terminated because the entities carrying out the programs or activities were not able to reach program goals;

(8) containing the number of English learners served by eligible entities receiving funding under this part who were transitioned out of language instruction educational programs funded under this part; and

(9) containing other information gathered from the evaluations from specially qualified agencies and other reports submitted to the Secretary under this part when applicable.

Prior Provisions

Amendments

2015- Pub. L. 114-95, §3003(i)(1), substituted "Biennial reports" for "Reporting requirements" in section catchline.

Subsec. (a). Pub. L. 114-95, §3003(i)(2), substituted "reports provided" for "evaluations provided" and "English learners" for "children who are limited English proficient".

Subsec. (b)(1). Pub. L. 114-95, §3003(i)(3)(A), substituted "to serve English learners" for "to serve limited English proficient children" and "proficiency of English learners" for "proficiency of children who are limited English proficient".

Subsec. (b)(2). Pub. L. 114-95, §3003(i)(3)(B), substituted "English learners" for "limited English proficient children".

Subsec. (b)(4). Pub. L. 114-95, §3003(i)(3)(C), substituted "section 6821(b)(2)(D)" for "section 6821(b)(2)(C)".

Subsec. (b)(5). Pub. L. 114-95, §3003(i)(3)(D), substituted "English learners" for "limited English proficient children".

Subsec. (b)(6). Pub. L. 114-95, §3003(i)(3)(E), substituted "findings of the most recent evaluation related to English learners carried out under section 7981 of this title" for "major findings of scientifically based research carried out under this part".

Subsec. (b)(8). Pub. L. 114-95, §3003(i)(3)(F), substituted "of English learners" for "of limited English proficient children" and struck out "into classrooms where instruction is not tailored for limited English proficient children" before the semicolon.

Subsec. (b)(9). Pub. L. 114-95, §3003(i)(3)(G), substituted "part" for "subchapter".

Change of Name

Committee on Education and the Workforce of House of Representatives changed to Committee on Education and Labor of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.

Effective Date of 2015 Amendment

§6844. Coordination with related programs

In order to maximize Federal efforts aimed at serving the educational needs of English learners, the Secretary shall coordinate and ensure close cooperation with other entities carrying out programs serving language-minority and English learners that are administered by the Department and other agencies. The Secretary shall report to the Congress on parallel Federal programs in other agencies and departments.

Prior Provisions

A prior section 3123 of Pub. L. 89-10 was renumbered section 3122 and is classified to section 6843 of this title.

Amendments

2015- Pub. L. 114-95, §3003(j), substituted "needs of English learners" for "needs of children of limited English proficiency" and "and English learners" for "and limited English proficient children" and inserted at end "The Secretary shall report to the Congress on parallel Federal programs in other agencies and departments."

Effective Date of 2015 Amendment

§6845. Rules of construction

Nothing in this part shall be construed-

(1) to prohibit a local educational agency from serving English learners simultaneously with children with similar educational needs, in the same educational settings where appropriate;

(2) to require a State or a local educational agency to establish, continue, or eliminate any particular type of instructional program for English learners; or

(3) to limit the preservation or use of Native American languages.

Prior Provisions

A prior section 3124 of Pub. L. 89-10 was renumbered section 3123 and is classified to section 6844 of this title.

Amendments

2015-Pars. (1), (2). Pub. L. 114-95, §3003(k), substituted "English learners" for "limited English proficient children".

Effective Date of 2015 Amendment

§6846. Legal authority under State law

Nothing in this part shall be construed to negate or supersede State law, or the legal authority under State law of any State agency, State entity, or State public official, over programs that are under the jurisdiction of the State agency, entity, or official.

Prior Provisions

A prior section 3125 of Pub. L. 89-10 was renumbered section 3124 and is classified to section 6845 of this title.

§6847. Civil rights

Nothing in this part shall be construed in a manner inconsistent with any Federal law guaranteeing a civil right.

Prior Provisions

A prior section 3126 of Pub. L. 89-10 was renumbered section 3125 and is classified to section 6846 of this title.

§6848. Programs for Native Americans and Puerto Rico

Notwithstanding any other provision of this part, programs authorized under this part that serve Native American (including Native American Pacific Islander) children and children in the Commonwealth of Puerto Rico may include programs of instruction, teacher training, curriculum development, evaluation, and assessment designed for Native American children learning and studying Native American languages and children of limited Spanish proficiency, except that an outcome of programs serving such children shall be increased English proficiency among such children.

Prior Provisions

A prior section 3127 of Pub. L. 89-10 was renumbered section 3126 and is classified to section 6847 of this title.

§6849. Prohibition

In carrying out this part, the Secretary shall neither mandate nor preclude the use of a particular curricular or pedagogical approach to educating English learners.

Prior Provisions

A prior section 3128 of Pub. L. 89-10 was renumbered section 3127 and is classified to section 6848 of this title.

Amendments

2015- Pub. L. 114-95, §3003(l), substituted "English learners" for "limited English proficient children".

Effective Date of 2015 Amendment

subpart 3-national activities

§6861. National professional development project

The Secretary shall use funds made available under section 6821(c)(1)(C) of this title to award grants on a competitive basis, for a period of not more than 5 years, to institutions of higher education or public or private entities with relevant experience and capacity (in consortia with State educational agencies or local educational agencies) to provide for professional development activities that will improve classroom instruction for English learners and assist educational personnel working with English learners to meet high professional standards, including standards for certification and licensure as teachers who work in language instruction educational programs or serve English learners. Grants awarded under this section may be used-

(1) for effective preservice or inservice professional development programs that will improve the qualifications and skills of educational personnel involved in the education of English learners, including personnel who are not certified or licensed and educational paraprofessionals, and for other activities to increase teacher and school leader effectiveness in meeting the needs of English learners;

(2) for the development of curricula or other instructional strategies appropriate to the needs of the consortia participants involved;

(3) to support strategies that strengthen and increase parent, family, and community member engagement in the education of English learners;

(4) to develop, share, and disseminate effective practices in the instruction of English learners and in increasing the student academic achievement of English learners, such as through the use of technology-based programs;

(5) in conjunction with other Federal need-based student financial assistance programs, for financial assistance, and costs related to tuition, fees, and books for enrolling in courses required to complete the degree involved, to meet certification or licensing requirements for teachers who work in language instruction educational programs or serve English learners; and

(6) as appropriate, to support strategies that promote school readiness of English learners and their transition from early childhood education programs, such as Head Start or State-run preschool programs, to elementary school programs.

Prior Provisions

Amendments

2015- Pub. L. 114-95 amended section generally. Prior to amendment, section related to grants to be used for preservice professional development programs, for development of curricula, and for financial assistance for certain language teachers.

Effective Date of 2015 Amendment

subpart 4-definitions

Prior sections 6895 to 6900 were omitted in the general amendment of this subchapter by Pub. L. 107-110.

Prior sections 6921 to 6928, which comprised former part C of this subchapter, were omitted in the general amendment of this subchapter by Pub. L. 107-110.

A prior section 3301 of Pub. L. 89-10 was renumbered section 3201 and is classified to section 7011 of this title.

A prior section 3303 of Pub. L. 89-10 was renumbered section 3202 and is classified to section 7013 of this title.

A prior section 3304 of Pub. L. 89-10 was renumbered section 3203 and is classified to section 7014 of this title.

Prior sections 6952 and 6953 were omitted in the general amendment of this subchapter by Pub. L. 107-110.

Prior sections 6971 to 6979 were omitted in the general amendment of this subchapter by Pub. L. 107-110.

A prior section 7001, Pub. L. 89-10, title III, §3601, as added Pub. L. 106-554, §1(a)(4) [div. B, title XVII, §1711], Dec. 21, 2000, 114 Stat. 2763, 2763A-337, related to limitation on availability of certain funds for schools, prior to the general amendment of this subchapter by Pub. L. 107-110.

Effective Date of Repeal

Repeal effective Dec. 10, 2015, except with respect to certain noncompetitive programs and competitive programs, see section 5 of Pub. L. 114-95, set out as an Effective Date of 2015 Amendment note under section 6301 of this title.

Part B-General Provisions

Codification

Pub. L. 114-95, title III, §3001(4), Dec. 10, 2015, 129 Stat. 1953, redesignated part C (§7011 et seq.) of this subchapter as part B of this subchapter.

Prior Provisions

A prior part B, consisting of sections 6891 to 6894, 6911 to 6918, 6931 to 6935, 6951, 6961 to 6968, and 6981 to 6983 of this title, related to improving language instruction educational programs, prior to repeal by Pub. L. 114-95, title III, §3001(3), Dec. 10, 2015, 129 Stat. 1953.

§7011. Definitions

Except as otherwise provided, in this subchapter:

(1) Child

The term "child" means any individual aged 3 through 21.

(2) Community-based organization

The term "community-based organization" means a private nonprofit organization of demonstrated effectiveness, Indian tribe, or tribally sanctioned educational authority, that is representative of a community or significant segments of a community and that provides educational or related services to individuals in the community. Such term includes a Native Hawaiian or Native American Pacific Islander native language educational organization.

(3) Eligible entity

The term "eligible entity" means-

(A) one or more local educational agencies; or

(B) one or more local educational agencies, in consortia or collaboration with an institution of higher education, educational service agency, community-based organization, or State educational agency.

(4) English learner with a disability

The term "English learner with a disability" means an English learner who is also a child with a disability, as that term is defined in section 1401 of this title.

(5) Immigrant children and youth

The term "immigrant children and youth" means individuals who-

(A) are aged 3 through 21;

(B) were not born in any State; and

(C) have not been attending one or more schools in any one or more States for more than 3 full academic years.

(6) Indian tribe

The term "Indian tribe" means any Indian tribe, band, nation, or other organized group or community, including any Native village or Regional Corporation or Village Corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act [ 43 U.S.C. 1601 et seq.], that is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

(7) Language instruction educational program

The term "language instruction educational program" means an instruction course-

(A) in which an English learner is placed for the purpose of developing and attaining English proficiency, while meeting challenging State academic standards; and

(B) that may make instructional use of both English and a child's native language to enable the child to develop and attain English proficiency, and may include the participation of English proficient children if such course is designed to enable all participating children to become proficient in English and a second language.

(8) Native American and Native American language

The terms "Native American" and "Native American language" shall have the meanings given such terms in section 2902 of title 25.

(9) Native Hawaiian or Native American Pacific Islander native language educational organization

The term "Native Hawaiian or Native American Pacific Islander native language educational organization" means a nonprofit organization with-

(A) a majority of its governing board and employees consisting of fluent speakers of the traditional Native American languages used in the organization's educational programs; and

(B) not less than 5 years successful experience in providing educational services in traditional Native American languages.

(10) Native language

The term "native language", when used with reference to an individual of limited English proficiency, means-

(A) the language normally used by such individual; or

(B) in the case of a child or youth, the language normally used by the parents of the child or youth.

(11) Paraprofessional

The term "paraprofessional" means an individual who is employed in a preschool, elementary school, or secondary school under the supervision of a certified or licensed teacher, including individuals employed in language instruction educational programs, special education, and migrant education.

(12) Specially qualified agency

The term "specially qualified agency" means an eligible entity in a State whose State educational agency-

(A) does not participate in a program under subpart 1 of part A for a fiscal year; or

(B) submits a plan (or any amendment to a plan) that the Secretary, after reasonable notice and opportunity for a hearing, determines does not satisfy the requirements of such subpart.

(13) State

The term "State" means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.

(14) Tribally sanctioned educational authority

The term "tribally sanctioned educational authority" means-

(A) any department or division of education operating within the administrative structure of the duly constituted governing body of an Indian tribe; and

(B) any nonprofit institution or organization that is-

(i) chartered by the governing body of an Indian tribe to operate a school described in section 6822(a) of this title or otherwise to oversee the delivery of educational services to members of the tribe; and

(ii) approved by the Secretary for the purpose of carrying out programs under subpart 1 of part A for individuals served by a school described in section 6822(a) of this title.

( Pub. L. 89-10, title III, §3201, formerly §3301, as added Pub. L. 107-110, title III, §301, Jan. 8, 2002, 115 Stat. 1729; amended Pub. L. 110-315, title IX, §941(k)(2)(F)(i), Aug. 14, 2008, 122 Stat. 3466; renumbered §3201 and amended Pub. L. 114-95, title III, §§3001(5)(A), 3004(a), Dec. 10, 2015, 129 Stat. 1953, 1965.)

References in Text

The Alaska Native Claims Settlement Act, referred to in par. (6), is Pub. L. 92-203, Dec. 18, 1971, 85 Stat. 688, as amended, which is classified generally to chapter 33 (§1601 et seq.) of Title 43, Public Lands. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 43 and Tables.

Prior Provisions

Amendments

2015-Pars. (3), (4). Pub. L. 114-95, §3004(a)(1), (2), added pars. (3) and (4) and struck out former pars. (3) and (4) which defined "community college" and "Director", respectively.

Par. (5). Pub. L. 114-95, §3004(a)(1), (3), redesignated par. (6) as (5) and struck out former par. (5) which defined "family education program".

Par. (6). Pub. L. 114-95, §3004(a)(3), redesignated par. (7) as (6). Former par. (6) redesignated (5).

Par. (7). Pub. L. 114-95, §3004(a)(3), redesignated par. (8) as (7). Former par. (7) redesignated (6).

Par. (7)(A). Pub. L. 114-95, §3004(a)(4), substituted "an English learner" for "a limited English proficient child" and "challenging State academic standards" for "challenging State academic content and student academic achievement standards, as required by section 6311(b)(1) of this title".

Pars. (8) to (11). Pub. L. 114-95, §3004(a)(3), redesignated pars. (9) to (12) as (8) to (11), respectively. Former par. (8) redesignated (7).

Par. (12). Pub. L. 114-95, §3004(a)(3), (5), redesignated par. (13) as (12) and struck out ", as defined in section 6871 of this title," after "eligible entity" in introductory provisions. Former par. (12) redesignated (11).

Pars. (13), (14). Pub. L. 114-95, §3004(a)(3), redesignated pars. (14) and (15) as (13) and (14), respectively. Former par. (13) redesignated (12).

2008-Par. (3). Pub. L. 110-315 substituted "the Tribally Controlled Colleges and Universities Assistance Act of 1978" for "the Tribally Controlled College or University Assistance Act of 1978".

Effective Date of 2015 Amendment

Research Relating to Bilingual Education

Pub. L. 100-297, title VI, §6211, Apr. 28, 1988, 102 Stat. 429, provided that:

"(a) Research and Development.-The Secretary [of Education] shall, through competitive contracts under this section, provide financial assistance for research and development proposals submitted by institutions of higher education, private for-profit and nonprofit organizations, State and local educational agencies, and individuals.

"(b) Authorized Activities.-Research activities authorized to be assisted under this section shall include-

"(1) studies to determine and evaluate effective models for bilingual education programs;

"(2) studies which examine the process by which individuals acquire a second language and master the subject matter skills required for grade-promotion and graduation, and which identify effective methods for teaching English and subject matter skills within the context of a bilingual education program or special alternative instructional program to students who have language proficiencies other than English;

"(3) longitudinal studies to measure the effect of title VII of the Elementary and Secondary Education Act of 1965 [former 20 U.S.C. 3281 et seq.] on students enrolled in programs under such title (including a longitudinal study of the impact of bilingual education programs on limited-English proficient students using a nationally representative sample of the programs funded under such title and which provides information including data on grade retention, academic performance, and dropout rates);

"(4) studies to determine effective and reliable methods for identifying students who are entitled to services under such title and for determining when their English language proficiency is sufficiently well developed to permit them to derive optimal benefits from an all-English instructional program;

"(5) the operation of a clearinghouse which shall collect, analyze, and disseminate information about bilingual education and related programs (and coordinate its activities with the National Diffusion Network);

"(6) studies to determine effective methods of teaching English to adults who have language proficiencies other than English;

"(7) studies to determine and evaluate effective methods of instruction for bilingual programs, taking into account language and cultural differences among students;

"(8) studies to determine effective approaches to preservice and inservice training for teachers, taking into account the language and cultural differences of their students;

"(9) the effect of such title on the capacity of local educational agencies to operate bilingual programs following the termination of assistance under this [such] title; and

"(10) studies to determine effective and reliable methods for identifying gifted and talented students who have language proficiencies other than English.

"(c) Consultation and Delegation of Authority.-In carrying out the responsibilities of this section, the Secretary may delegate authority to the Director, and in any event, shall consult with the Director, representatives of State and local educational agencies, appropriate groups and organizations involved in bilingual education, the Committee on Labor and Human Resources [now Committee on Health, Education, Labor, and Pensions] of the Senate, and the Committee on Education and Labor of the House of Representatives.

"(d) Publication of Proposals.-The Secretary shall publish and disseminate all requests for proposals in research and development assisted under such title.

"(e) Limitation of Authority.-Nothing in this section shall be construed as authorizing the Secretary to conduct or support studies or analyses of the content of educational textbooks."

Information Regarding Bilingual Education

Pub. L. 100-297, title VI, §6213, Apr. 28, 1988, 102 Stat. 429, as amended by Pub. L. 104-66, title I, §1042(a), Dec. 21, 1995, 109 Stat. 715, provided that: "The Secretary [of Education] shall collect data for program management and accountability purposes regarding-

"(1) a national assessment of the educational needs of children and other persons with limited English proficiency and of the extent to which such needs are being met from Federal, State, and local efforts;

"(2) a plan, including cost estimates, to be carried out during the 5-year period beginning on such date [sic], for extending programs of bilingual education and bilingual vocational and adult education programs to all such preschool and elementary schoolchildren and other persons of limited English proficiency, including a phased plan for the training of the necessary teachers and other education personnel necessary for such purpose;

"(3) a statement of the activities intended to be carried out during the succeeding period, including an estimate of the cost of such activities; and

"(4)(A) an assessment of the number of teachers and other educational personnel needed to carry out programs of bilingual education under such title [sic] and those carried out under other programs for persons of limited English proficiency;

"(B) a statement describing the activities carried out thereunder designed to prepare teachers and other educational personnel for such programs; and

"(C) the number of other educational personnel needed to carry out programs of bilingual education in the States."

Effective Date of Repeal

Repeal effective Dec. 10, 2015, except with respect to certain noncompetitive programs and competitive programs, see section 5 of Pub. L. 114-95, set out as an Effective Date of 2015 Amendment note under section 6301 of this title.

§7013. National clearinghouse

(a) In general

The Secretary shall establish and support the operation of a National Clearinghouse for English Language Acquisition and Language Instruction Educational Programs, which shall collect, analyze, synthesize, and disseminate information about language instruction educational programs for English learners, and related programs. The National Clearinghouse shall-

(1) be administered as an adjunct clearinghouse of the Educational Resources Information Center Clearinghouses system supported by the Institute of Education Sciences;

(2) coordinate activities with Federal data and information clearinghouses and entities operating Federal dissemination networks and systems;

(3) develop a system for improving the operation and effectiveness of federally funded language instruction educational programs;

(4) collect and disseminate information on-

(A) educational research and processes related to the education of English learners, including English learners with a disability, that includes information on best practices on instructing and serving English learners; and

(B) accountability systems that monitor the academic progress of English learners in language instruction educational programs, including information on academic content and English proficiency assessments for language instruction educational programs; and

(5) publish, on an annual basis, a list of grant recipients under this subchapter.

(b) Construction

Nothing in this section shall authorize the Secretary to hire additional personnel to execute subsection (a).

( Pub. L. 89-10, title III, §3202, formerly §3303, as added Pub. L. 107-110, title III, §301, Jan. 8, 2002, 115 Stat. 1733; amended Pub. L. 107-279, title IV, §404(d)(5)(B), Nov. 5, 2002, 116 Stat. 1986; renumbered §3202 and amended Pub. L. 114-95, title III, §§3001(5)(C), 3004(b), Dec. 10, 2015, 129 Stat. 1953, 1965.)

Prior Provisions

Amendments

2015- Pub. L. 114-95, §3004(b)(1), designated existing provisions as subsec. (a) and substituted "English learners" for "limited English proficient children" in introductory provisions.

Subsec. (a)(4)(A). Pub. L. 114-95, §3004(b)(2)(A), substituted "English learners, including English learners with a disability, that includes information on best practices on instructing and serving English learners" for "limited English proficient children".

Subsec. (a)(4)(B). Pub. L. 114-95, §3004(b)(2)(B), substituted "English learners" for "limited English proficient children".

Subsec. (b). Pub. L. 114-95, §3004(b)(3), added subsec. (b).

2002-Par. (1). Pub. L. 107-279 substituted "Institute of Education Sciences" for "Office of Educational Research and Improvement".

Effective Date of 2015 Amendment

§7014. Regulations

In developing regulations under this subchapter, the Secretary shall consult with State educational agencies and local educational agencies, organizations representing English learners, and organizations representing teachers and other personnel involved in the education of English learners.

Prior Provisions

Amendments

2015- Pub. L. 114-95, §3004(c), substituted "representing English learners" for "representing limited English proficient individuals" and "education of English learners" for "education of limited English proficient children".

Effective Date of 2015 Amendment

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[USC02] 20 USC CHAPTER 70, SUBCHAPTER III: LANGUAGE INSTRUCTION FOR ENGLISH LEARNERS AND IMMIGRANT STUDENTS

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Codification Pub. L. 114-95, title III, §3001(1), Dec. 10, 2015, 129 Stat. 1953 , substituted "ENGLISH LEARNERS" for "LIMITED ENGLISH PROFICIENT" in subchapter heading. Title III of the Elementary and Secondary Education Act of 1965, comprising this subchapter, was originally enacted as part of Pub. L. 89-10, Apr. 11, 1965, 79 Stat.

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Slide 6 14th Amendment (U.S. Const. Amend. XIV)-Constitutional Law

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Slide 6 14th Amendment (U.S. Const. Amend. XIV)-Constitutional Law

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The 14th Amendment states that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws" (U.S. Const. Amend. XIV). This amendment creates the foundation for educational equality for all students including those who have limited English proficiency.

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Constitutional Amendments 1-10 make up what is known as The Bill of Rights. Amendments 11-27 are listed below.

AMENDMENT XI
Passed by Congress March 4, 1794. Ratified February 7, 1795.
Note: Article III, section 2, of the Constitution was modified by amendment 11. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

AMENDMENT XII
Passed by Congress December 9, 1803. Ratified June 15, 1804.
Note: A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment. The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. --]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. *Superseded by section 3 of the 20th amendment.

AMENDMENT XIII
Passed by Congress January 31, 1865. Ratified December 6, 1865.
Note: A portion of Article IV, section 2, of the Constitution was superseded by the 13th amendment.

Section 1.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.

Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XIV
Passed by Congress June 13, 1866. Ratified July 9, 1868.
Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

*Changed by section 1 of the 26th amendment.

AMENDMENT XV
Passed by Congress February 26, 1869. Ratified February 3, 1870.
Section 1.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude--

Section 2.

The Congress shall have the power to enforce this article by appropriate legislation.

AMENDMENT XVI
Passed by Congress July 2, 1909. Ratified February 3, 1913.
Note: Article I, section 9, of the Constitution was modified by amendment 16.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

AMENDMENT XVII
Passed by Congress May 13, 1912. Ratified April 8, 1913.
Note: Article I, section 3, of the Constitution was modified by the 17th amendment.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

AMENDMENT XVIII
Passed by Congress December 18, 1917. Ratified January 16, 1919. Repealed by amendment 21.
Section 1.

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2.

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

AMENDMENT XIX
Passed by Congress June 4, 1919. Ratified August 18, 1920.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XX
Passed by Congress March 2, 1932. Ratified January 23, 1933.
Note: Article I, section 4, of the Constitution was modified by section 2 of this amendment. In addition, a portion of the 12th amendment was superseded by section 3.

Section 1.

The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2.

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3.

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4.

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5.

Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

AMENDMENT XXI
Passed by Congress February 20, 1933. Ratified December 5, 1933.
Section 1.

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

AMENDMENT XXII
Passed by Congress March 21, 1947. Ratified February 27, 1951.
Section 1.

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

AMENDMENT XXIII
Passed by Congress June 16, 1960. Ratified March 29, 1961.
Section 1.

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XXIV
Passed by Congress August 27, 1962. Ratified January 23, 1964.
Section 1.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XXV
Passed by Congress July 6, 1965. Ratified February 10, 1967.
Note: Article II, section 1, of the Constitution was affected by the 25th amendment.

Section 1.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

AMENDMENT XXVI
Passed by Congress March 23, 1971. Ratified July 1, 1971.
Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.

Section 1.

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XXVII
Originally proposed Sept. 25, 1789. Ratified May 7, 1992.
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Back to Constitution Main Page

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Constitutional Amendments 1-10 make up what is known as The Bill of Rights. Amendments 11-27 are listed below. Passed by Congress March 4, 1794. Ratified February 7, 1795. Note: Article III, section 2, of the Constitution was modified by amendment 11.

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Slide 5 Current News Articles: Report offers recommendations to improve programs for English learners with disabilities by Naaz Modan. 

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Slide 5 Current News Articles: Report offers recommendations to improve programs for English learners with disabilities by Naaz Modan. 

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This article talks about students who are considered English learners with disabilities. Many times, these students are hard to identify because of the language barrier. The article explains several ways that districts can improve instruction for English learners with disabilities. Some suggestions are:

Integrating students with disabilities in regular classes

Providing clear policy guidelines

Expanding developmental screenings in the student’s native language

Offering training for teachers that addresses culture, language and disability.

Modan, N. (2019). Report offers recommendations to improve programs for English learners with disabilities. Retrieved from https://www.educationdive.com/news/report-offers-recommendations-to-improve-programs-for-english-learners-with/559877/

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Dive Brief:

A recently released New America report says that English learners (ELs) with disabilities are not well understood and are an underserved subgroup caught between underfunded federal programs and educators on the ground with little training.

The report outlines steps administrators, leaders, and policymakers can take to better serve ELs that also have a disability. These include integrating students with disabilities in regular classrooms as much as possible, providing clear policy guidelines and best practice manuals, expanding developmental screenings in a child's native language and offering ongoing training that addresses issues of culture, language and disability.

Lack of sufficient federal support has led to state and local leaders cutting special education services, which has, in turn, limited the number of teachers hired and has even led to schools capping special education identification rates. In some cases, this leads to EL students and their families being denied access to special education, the report says.

Dive Insight:

The number of ELs in U.S. schools has continued to increase over the years, from 3.8 million students (8.1% of the total student population) in 2000 to nearly 5 million students (9.6%) in 2016. Within this group, about 15 percent also qualify for special education services.

Schools and districts are required by federal law to provide these students with special education as well as services for ELs English learner and special education services. But educators sometimes struggle to identify if students are falling behind because of a the language barrier, the child's disability, or both, according to the report.

Students are at risk for being both under- and over-identified for special education services, the authors write. Sometimes, educators will overlook or discount the presence of a disability, attributing its signs as a result of the student's limited English proficiency. Other times, educators may misidentify students' limited English skills as a learning disability.

The key to better serving this dual-identified population is to first correctly assess and identify students who may need additional services, they write, saying that clear policies and guidelines are needed at the state or district level, as well as training for educators on the ground. According to a 2017 Council of Chief State School Officers guide, professional development in this area for teachers should focus on how to weave support for students into both instruction and assessment.

District leaders may also be able to make it easier for general education teachers to collaborate with special education teachers and those who work with ELs. Because states and districts often have a shortage of personnel qualified to serve both ELs and students with special needs, schools can also benefit from working with higher education institutions and outside organizations.

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Report offers recommendations to improve programs for English learners with disabilities

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A recently released New America report says that English learners (ELs) with disabilities are not well understood and are an underserved subgroup caught between underfunded federal programs and educators on the ground with little training. The report outlines steps administrators, leaders, and policymakers can take to better serve ELs that also have a disability.

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The American School Counselor Association (ASCA) released a position statement over The School Counselor and Cultural Diversity. The statement says that school counselors “demonstrate cultural responsiveness by collaborating with stakeholders to create a school and community climate that embraces cultural diversity and helps to promote the academic, career and social/emotional success for all students” (ASCA, 2015). Although the position statement is not directed specifically at ELLs, it does address the cultural differences that many ELL students face.

This is a great resource for counselors to understand the importance of increasing awareness of cultural diversity, advocating for equality, and collaborating with students and teachers to promote success of all students.

American School Counselor Association [ASCA]. (2015). The School Counselor and Cultural Diversity. Retrieved from https://www.schoolcounselor.org/asca/media/asca/PositionStatements/PS_CulturalDiversity.pdf

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I spoke with Cristina Windom, the lead counselor at Nimitz High School about working with English Language Learners (ELLs).

Why is understanding how to work with English language learners important for counselors?

Mrs. Windom explained that with such a high population of ELLs at Nimitz High School, this is an extremely relevant topic. Counselors are responsible for ensuring that all students have an equal opportunity for education and that involves ensuring that students are placed in the correct classes based on their language testing results. There is also a lot of monitoring that must happen to ensure that students who are improving can be moved into regular or advanced classes instead of ESL.

Best Practices

Treat all students equally and make them feel welcome. A lot of ELLs are newcomers or undocumented students, so helping them transition academically and culturally into school is important.

Keep parents involved. Many parents of ELLs are not involved because of language barriers, so helping them feel comfortable and keeping them informed is important.

Ensure ELL students are monitored in their classes so they can be moved to regular and advanced courses to prepare them for post-secondary education. Make sure that students know that there are many options such as community college or trade schools that can help them get better jobs.

Emerging Issues

There has been a rise of undocumented students enrolling in schools. Most of these students are newcomers and ELL students. Although every student has the right to an equal education, there is a lack of training for counselors and educators involving undocumented students and best practices. Educators should stay informed of legal requirements for undocumented students and continue to support them in their education.

(C. Windom, personal communication, October 2, 2019).

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My professional perspective is from a high school counselor. I am currently in my final semester of classes and looking to secure a high school counseling position for next school year. This legal guide is to inform school counselors of the laws surrounding English language learners (ELLs) and the best practices for working this group of students. I chose this topic because at my current school, there are many ELLs and these students typically fall behind because of language and cultural differences. It is important for counselors to be aware of the legal and ethical implications when working with this group of students to help close the achievement gap.