ESEA Title III Use of Funds Allocations SEA/LEA ELL Activities. SNS Title III Guidance and Findings

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1 Jennifer S. Mauskapf, Esquire Brustein & Manasevit Fall Forum 2010 Title III Supplement not Supplant Provision Affirmative Obligations to Serve ELLs Other Federal Requirements Title VI of the Civil Rights Act of 1964 ESEA Title I State Mandates Local Requirements ESEA Title III Use of Funds Allocations SEA/LEA ELL Activities SNS Title III Guidance and Findings 2 3 1

2 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 Limited English Proficient (LEP) children and immigrant children and youth and in no case to supplant such Federal, State, and local public funds. INTENT: To ensure services provided with T3 funds are in addition to, and do not replace or supplant, services that students would otherwise receive. 4 An auditor will presume that the SEA or LEA violated the SNS requirement when the SEA or LEA uses Title III funds to provide 1. Services that the SEA or LEA was required to make available under other federal, state, or local law; 2. Services that the SEA or LEA provided with other federal, state, or local funds in the prior year; or 3. The same services to Title III students as it provided to non-title III students with non-title III funds. Source: See OMB Circular A-133 Compliance Supplement 5 6 2

3 Prohibits discrimination on the basis of race, color, or national origin in programs and activities that receive federal financial assistance. Title VI Interpretation ELLs: Prohibits denial of equal access to education because of a student's limited proficiency in English. Protects students who are so limited in their English language skills that they are unable to participate in or benefit from regular or special education instructional programs. 7 Where the inability to speak and understand the English language excludes national origin minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students. Upheld in Lau v. Nichols "[T]here is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education." 8 Federal law requires programs that educate children with LEP to be: 1. Based on a sound educational theory; 2. Adequately supported, with adequate and effective staff and resources, so that the program has a realistic chance of success; and 3. Periodically evaluated and, if necessary, revised. (Castaneda v. Pickard 3-part test) 9 3

4 Key Federal Court Cases: Lau v. Nichols, 414 U.S. 563 (1974) Castaneda v. Pickard, 648 F.2d 989 (5 th Cir., 1981) Key OCR Guidance: 3/25/70 Memorandum /lau1970.html 12/3/85 Memorandum (Reissued 4/6/90) /lau1990_and_1985.html 9/27/91 OCR Policy /lau1991.html 10 ESEA Title I State Requirements Local Requirements 11 Purpose Allocations Activities SNS Guidance 12 4

5 To ensure that Limited English Proficient (LEP) and immigrant students: Attain English proficiency Develop high levels of academic attainment in English Meet the same challenging State academic content and student achievement standards as all students Professional Development Planning, evaluation, administration, interagency coordination Technical Assistance Recognition 15 5

6 16 After timely and meaningful consultation with appropriate private school officials, LEAs receiving Title III funds must provide educational services to LEP children and educational personnel in private schools that are located in the geographic area served by the LEA. ( 9501) Title IX Equitable Services Guidance (March 2009): www2.ed.gov/policy/elsec/guid/equitableserguidance.doc 17 To ensure timely and meaningful consultation, the LEA must consult with private school officials on issues such as: How LEP students needs will be identified What services will be offered How, where, and by whom the services will be provided How the services will be assessed and how the results of the assessment will be used to improve those services The size and scope of services Amount of funds available for services How and when the LEA will make decisions about the delivery of services 18 6

7 1. Enrolled in nonprofit private school located in LEA 2. Meet specific eligibility/participation criteria of given program Note: Residence is NOT a factor. If State law considers home schooled students to be private school students, they are eligible. 19 Spends an equal amount of funds to serve similar public and private school students Provides services and benefits that are equitable in comparison to the services and benefits provided to public school students Addresses the specific needs and educational programs on public and private school students on a comparable basis Provides, in the aggregate, approximately the same amount of services Provides equal opportunities to participate Provides services that meet private school s specific needs 20 Many LEAs calculate equal expenditures strictly on the basis of the relative enrollments of public and private school students This is not required! Assumes the numbers accurately reflect the relative needs of students and teachers in public and private schools. LEAs may use other factors relating to need! Both the number and the educational needs of the public and private school students must be taken into account. 21 7

8 If the LEA does not use all funds designated for service to private school students, how is money treated? IT DEPENDS. If LEA provided equitable services in first year then carryover funds revert to regular program pot. If LEA did not provide equitable services, then must earmark funds for services to private school students in the carryover year. Use in Year 2, in addition to entire amount of new allocation. EITHER WAY: Funds remain in control of LEA. 22 High quality language instruction educational programs that demonstrate effectiveness by: Increasing English proficiency Student academic achievement in the core academic subjects High-quality professional development Improve instruction and assessment Enhance the ability of teachers to understand and use curricula, assessment measures, and instruction strategies Demonstrate effectiveness of professional development Provide activities of sufficient intensity and duration 23 To achieve Title III purposes by: 1. Upgrading program objectives and effective instruction strategies; 2. Improving the instruction program for LEP children by identifying, acquiring, and upgrading curricula, instruction materials, educational software, and assessment procedures; 3. Providing Tutorials and academic or vocational education for LEP children; and Intensified instruction 24 8

9 4. Developing and implementing elementary school or secondary school language instruction education programs that are coordinated with other relevant programs and services; 5. Improving the English proficiency and academic achievement of LEP children; 6. Providing community participation programs, family literary services, and parent outreach and training activities to LEP children and their families To improve English language skills of LEP children; and To assist parents in helping their children improve their academic achievement and becoming active participants in the education of their children Improving the instruction of LEP children by providing for The acquisition or development of educational technology or instructional materials; Access to, and participation in, electronic networks for materials, training, and communication; and Incorporation of the resources described above into curricula and programs, such as those funded under Title III-Part A. 8. Carrying other activities that are consistent with the purposes of this section. 26 Shall reserve no more than 15% of SEA allotment for subgrants to serve eligible entities that have significant increase in immigrant children compared to the average of the 2 preceding FYs. Immigrant Children and Youth (ICY) defined: Ages 3-21; Not born in any State; and, Have not been attending school(s) in any State(s) for more than 3 full academic years Sec. 3115(e). Activities by Agencies Experiencing Substantial Increases in ICY Funds received under 3114(d) shall be used for activities that provide enhanced instructional opportunities for immigrant children and youth. Lists specific permissive activities. 27 9

10 1. Family literacy, parent outreach, and training activities designed to assist parents to become active participants in the education of their children; 2. Support for personnel, including teacher aides who have been specifically trained, or are being trained, to provide services to ICY; 3. Provision of tutorials, mentoring, and academic or career counseling for ICY; 4. Identification and acquisition of curricular materials, educational software, and technologies to be used in the program carried out with funds; Basic instruction services that are directly attributable to the presence in ICY in the school district, 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 instruction services; 6. Other instruction services that are designed to assist ICY to achieve in elementary and secondary schools in the US, such as programs of introduction to the educational system and civics education; and 7. 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 of ICY by offering comprehensive community services. 29 Guidance Findings 30 10

11 Title III SNS Guidance, Oct. 2008: leiii/title-iii-sns-oct pdf USDE Title III SNS Webinar, Dec Follow-up to questions raised at the LEP Partnership Meeting SASA Monitoring Findings : eports09/index.html : eports10/index.html 31 Federal funds made available under this subpart shall be used so as to supplement the level of Federal, State, and local public funds that, in the absence of such availability, would have been expended for programs for LEP children and immigrant children and youth and in no case to supplant such Federal, State, and local public funds. INTENT: To ensure services provided with Tier III funds are in addition to, and do not replace or supplant, services that students would otherwise receive. 32 Title III funds unallowable for: Developing and/or administering Title I ELP assessment NOTE: State may use Title III State Activities funds for: Developing an ELP assessment separate from ELP assessment required under Title I, or Enhancing an existing ELP assessment required under Title I in order to align it with the State s ELP standards under Title III Developing and/or administering screening or placement assessments Providing core language instruction educational programs and services for LEP students Any determination about supplanting is VERY fact specific

12 ELP Assessment Development & Administration 34 An SEA may use the following funds: Title I State Administrative funds Regardless of consolidation w/other ESEA State admin Title III State Administrative funds if consolidated with other ESEA admin Section 6111 funds Section 6112 funds 35 Title I and Title III funds may not be used to administer ELP assessments. An SEA may use Section 6111 funds to administer State ELP assessments

13 37 1. What is the instructional program/service provided to all students? 2. What does the LEA do to meet Lau requirements? 3. What services is the LEA required by other Federal, State, and local laws or regulations to provide? 4. Was the program/service previously provided with State, local, and Federal funds? Based on the answers to the above questions, would the proposed funds be used to provide an instructional program/service that is in addition to or supplemental to an instructional program/service that would otherwise be provided to LEP students in the absence of a Title III grant?

14 Initial assessment to identify and place LEP students (including screeners, LAS links) Salaries of personnel who perform duties associated with administration of the annual ELP assessment Teacher substitutes to enable ESL teachers to administer the State s annual ELP assessment ESL Instructional Coach / Tutor whose responsibilities included assistance in administering the State ELP assessment Staff, related costs, for training on administering the proficiency assessments 40 District positions required under State law State required training Costs related to students attending State mandated Structured English Immersion (SEI) classes Chairs for State mandated SEI classes Classes required for graduation for ELL students unable to take these courses due to the requirement to enroll in State mandated SEI classes State mandated analysis of an ELL pilot program LEA unable to prove it was not using Title III funds to meet State translation requirement Where State required summer program for group of students, Title III funds used for summer program dedicated for such LEP students 41 To provide core language instruction Salaries of teachers who provide core services for LEP students Unclear how costs were supplementary Secondary ESL teachers who have the same duties and responsibilities some salaries paid with State and local funds, others with Title III Activities specified in a Title VI corrective action plan approved by OCR Report required LEA to explain how activity was supplemental Would LEA have to provide those services in the absence of Title III funds? How would activities paid for with Title III funds go beyond Lau s equal access obligation? 42 14

15 Final Interpretations: Title III SNS Guidance: titleiii/title-iii-sns-oct pdf Office of Civil Rights ELL Resources: ces.html Office of English Language Acquisition (OELA): ml National Clearinghouse for English Language Acquisition and Language Instruction Educational Programs: 43 Questions??? 44 This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client-lawyer relationship with Brustein & Manasevit and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit does not create an attorney-client relationship with Brustein & Manasevit. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances