Legal Requirements to Provide English as a Second Language (ESL) Services to English Language Learners
ADMINISTRATIVE LETTER: 9
POLICY CODE: IHBE
TO: Superintendents of Schools
FROM: Susan A. Gendron, Commissioner
DATE: September 10, 2009
RE: Legal Requirements to Provide English as a Second Language (ESL) Services to English Language Learners
The purpose of this letter is to clarify the requirements by law of providing an English Language Learner with ESL services.
Identification of English Language Learners
Each School Administrative Unit (SAU) must have, as part of its enrollment packet, a Home Language Survey to be given to all newly enrolled students to aid in the identification of possible English Language Learners.
Federal law requires an English Language Learner to receive ESL services.
When a student has been identified as a possible English Language Learner, that student must be administered the W-APT™ (WIDA-ACCESS Placement Test™) or a similar assessment as outlined in the SAU’s Lau Plan in order to place the student in appropriate ESL services.
Maine requires the education program of an English Language Learner to be overseen by a Maine ESL endorsed teacher. Federal law further requires the education of all English Language Learners to be designed, overseen and implemented by an ESL endorsed teacher. Only an ESL endorsed teacher meets the legal requirement to provide ESL services to English language learners.
Exit Criteria from ESL Services
Board adopted SAU Lau Plans, which have been a State requirement since 2003, must stipulate the exit criteria for its ESL program, which may have additional requirements, but at a minimum the criteria must include a Level 6 Composite Score on the ACCESS for ELLs®. Federal law requires that states define English language proficiency and that all English Language Learners who do not meet that definition be provided ESL services. Maine defines English language proficiency as attaining a Level 6 composite score on the State’s English language proficient assessment ACCESS for ELLs®. Federal law further requires that any English Language Learner who has met proficiency must be monitored for 2 years in order to ensure the academic success of that student.
Annual Assessment of English Language Learners’ English Language Proficiency
The ACCESS for ELLs® is a federally and state-required annual assessment for all English Language Learners and participation is a component of No Child Left Behind (NCLB) accountability. Failure of all English Language Learners to participate in the annual administration of the ACCESS for ELLs® may affect NCLB Title IA funding. If a student is identified as an English Language Learner, then that student must be administered the ACCESS for ELLs® annually until that student attains the State’s definition of English language proficient, which is defined as a Level 6 Composite score on the ACCESS for ELLs®.
Administration of the ACCESS for ELLs®
State law requires that the ACCESS for ELLs® only be administered by an individual trained in its administration. The current State policy is to allow educators other than ESL endorsed teachers to administer the ACCESS for ELLs®, so long as those educators are trained and certified to administer the ACCESS for ELLs®. However, the allowance of educators other than ESL endorsed teachers to administer the ACCESS for ELLs® must not be interpreted to mean that educators other than ESL endorsed teachers are also allowed to develop or be responsible for the development, oversight and administration of an ESL program for any English language learner.
Rights of ELLs
The Civil Rights Act of 1964 remains the foundation of the legal rights of an English Language Learners.
“No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” (42 U.S.C. 2000d)
This has been interpreted by courts as requiring a qualified ESL teacher to be provided to English Language Learners to ensure they are not excluded from participation in meaningful education.
In addition, an Office for Civil Rights Memorandum of 1991 requires a qualified ESL endorsed teacher for English Language Learners, in order that they are not relegated to second-class status by allowing a teacher without formal qualifications to teach them while requiring teachers of non-English Language Learners to meet formal qualifications (See 34 Code of Federal Regulations C.F.R. Section 100.3 (b)(ii)).
If you have any questions, would like further information or need technical assistance in crafting a Lau Plan, please contact Nancy Mullins, Director of ESL/Bilingual Programs, at 207-624-6788 or nancy.mullins@maine.gov .
