• by Kristin Grayson, Ph.D. • IDRA Newsletter • May 2015 •

Dr Kristin GraysonAttention schools and schools districts! New guidance addresses a topic that is timely and must be immediately addressed. On January 7 of this year, the U.S. Departments of Education and Justice issued a significant guidance document concerning the obligations that school districts and states education agencies have in providing equal access for English language learners (ELLs) to a quality education.

This guidance comes at a time when our nation is celebrating the important milestone anniversaries of the passing of the Civil Rights Act in 1964 and the Equal Educational Opportunities Act in 1974, and the Supreme Court case, Lau vs. Nichols in 1974. It also comes at a time when diversity in public schools continues to increase as evidenced in the new Civil Rights Data Collection database. According to the Institute for Education Sciences, ELLs constitute 10 percent of the student population in this country – over 4.7 million students.

They are protected by law to an equitable education with equitable outcomes of student success. However, this is usually not reflected in data of their academic performance and/or treatment and opportunity in schools. For instance, the Civil Rights Data Collection for the 2011-12 school year found that while ELLs represented 5 percent of the high school population across the country, they were being retained at a rate of 11 percent. While 7 percent of the general population participated in gifted and talented programs, only 2 percent of ELLs were enrolled in these programs. The civil rights database reports such data at the national, state, district, and the campus levels and exposes alarming disparities. The data, without a doubt, indicate that changes must be made now.

Clearly, with this publication of a “Dear Colleague” letter and very explicit guidance, the U.S. Department of Education along with the Office for Civil Rights and the U.S. Department of Justice are stating that attention needs to be drawn to this issue. English language learners are significant part of U.S. public schools. It’s time to strengthen programs and services. Quality staff, resources, and the funding needed to implement programs must be provided.

Programs for ELLs are not to be set up as an after-thought. They are to be implemented fully in order to ensure students’ civil rights and because ELLs are our kids, everyone’s kids. By ensuring their academic success, we prepare them to be college-ready and to contribute to our communities. Embracing diversity and other languages helps all of us to think and share from our different perspectives, so that creative thinking and solutions to social issues are found.

The January federal document, for the first time, gathers all the key legal information concerning the education of ELLs into one place. It gives guidance over what the law requires and what it should look like in schools. The document details the 10 areas of non-compliance that the departments have found as they work across the country. As stated in the guidance document, this includes the obligations of districts to do the following.

  • A.  Identify and assess ELL students in need of language assistance in a timely, valid and reliable manner.
  • B.  Provide ELL students with a language assistance program that is educationally sound and proven successful.
  • C.  Sufficiently staff and support the language assistance programs for ELL students.
  • D.  Ensure ELL students have equal opportunities to meaningfully participate in all curricular and extracurricular activities, including the core curriculum, graduation requirements, specialized and advanced courses and programs, sports and clubs.
  • E.  Avoid unnecessary segregation of ELL students.
  • F.  Ensure that ELL students with disabilities under the Individuals with Disabilities Education Act (IDEA) or Section 504 are evaluated in a timely and appropriate manner for special education and disability-related services and that their language needs are considered in evaluations and delivery of services.
  • G.  Meet the needs of ELL students who opt out of language assistance programs.
  • H.  Monitor and evaluate ELL students in language assistance programs to ensure their progress with respect to acquiring English proficiency and grade level core content, exit ELL students from language assistance programs when they are proficient in English, and monitor exited students to ensure they were not prematurely exited and that any academic deficits incurred in the language assistance program have been remedied.
  • I.  Evaluate the effectiveness of a school district’s language assistance program(s) to ensure that ELL students in each program acquire English proficiency and that each program was reasonably calculated to allow ELL students to attain parity of participation in the standard instructional program within a reasonable period of time.
  • J.  Ensure meaningful communication with parents of ELL students.

The full document can be found at http://www.idra.org/South_Central_Collaborative_for_Equity/.

School districts also must remember that families of English language learners have recourse through the Office for Civil Rights (OCR) when they feel that their civil rights have been violated. Families who feel that their children suffer from the ravages of discrimination can file a complaint with the OCR, which reviews and determines the legitimacy of the complaints and brings it to the attention of school districts for immediate action and remedy.

While this all might seem daunting, an exciting feature of this guidance document is that it clearly lays out what needs to be done for ELL students. School district and campus leaders can review the document and evaluate their program status and needs. The document gives explicit details about what needs to be done if an area of non-compliance is noted.

For example, a sample scenario is given about an elementary school: “The school finds that there is a disparity with the number of ELLs enrolled in their GT program. However, they noticed that there is a student very gifted in math yet low in reading skills. By allowing that student to take a non-verbal or a math-only test, the student qualifies for the math GT program. She is also in an intensive language development class 30 minutes per day along with a grade level teacher who is ESL certified and has received extensive training in sheltered instruction.”

Such sample scenarios along with links to valuable resources at the end of the document give schools, districts and state education agencies solutions to remedy civil rights non-compliance. This website for resources is http://www2.ed.gov/about/offices/list/ocr/ellresources.html.


Grayson, K., & B. Scott. “Civil Rights Update for English Learners,” IDRA Classnotes Podcast (March 31, 2015).

Institute for Education Sciences. Fast Facts – English language learners, website: https://nces.ed.gov/fastfacts/display.asp?id=96

U.S. Civil Rights Data Collection website: http://ocrdata.ed.gov/

U.S. Department of Education. “U.S. Departments of Education and Justice Release Joint Guidance to Ensure English Learner Students Have Equal Access to High-Quality Education,” news release (January 7, 2015). http://www.ed.gov/news/press-releases/us-departments-education-and-justice-release-joint-guidance-ensure-english-learner-students-have-equal-access-high-quality-education

Kristin Grayson, Ph.D., is an education associate in IDRA’s Education Transformation and Innovation Department. Comments and questions may be directed to her via email at  kristin.grayson@idra.org.

[©2015, IDRA. This article originally appeared in the May 2015 IDRA Newsletter by the Intercultural Development Research Association. Permission to reproduce this article is granted provided the article is reprinted in its entirety and proper credit is given to IDRA and the author.]