Students With Limited English Proficiency

Abstract

How to address the educational needs of students with limited English proficiency (LEP) is a particularly challenging and often controversial endeavor. Failure to address the needs of students with LEP often results in denial of meaningful educational opportunities and leads to disproportionate representation in special education programs. This article reviews relevant legislation and litigation regarding students with LEP and provides recommendations for improved practice. The case law reviewed addresses (a) equal opportunities for all students, regardless of native language, English language proficiency, or disabilities, (b) nondiscriminatory assessments, (c) assessments done in a timely fashion, and (d) parental involvement.

Keywords

limited English proficient students students with disabilities litigation

Approximately 5.5 million students who attend U.S. public schools have a native language other than English. Representing the fastest growing segment of the student population in the United States, the number of students with limited English proficiency (LEP) is increasing approximately 10% per year (McCardle, Mele-McCarthy, Cutting, Leos, & D’Emilio, 2005; U.S. Commission on Civil Rights, 2007). Historically, the academic achievement of students with LEP has been lower compared to that of their White, middle-class peers, which presents a challenge for educators, particularly in light of No Child Left Behind Act accountability requirements (Lindstrom, Tuckwiller, & Hallahan, 2008; National Association of Educational Progress [NAEP], 2011). Indeed, in 2005, only 7% of students with LEP in the fourth grade read at proficient or above levels as compared to 32% of students who are native English speakers (NAEP, 2011). Lack of academic progress for students with LEP may be the result of linguistic, cultural, or economic characteristics of families (Myhill, 2004).

Determining whether students with LEP have a disability is difficult because the characteristics of students with LEP and those of students with learning disabilities (LD) often look very similar (Bernhard et al., 2006; Ortiz & Yates, 2002). For example, low performance in reading comprehension could be the result of an LD or low proficiency in English. Consequently, students with LEP are sometimes denied appropriate academic services through misidentification and do not have access to a rigorous standard curriculum (U.S. Commission on Civil Rights, 2007). Students with LEP tend to be overrepresented in certain categories, such as speech language impairment, intellectual disabilities, and emotional disabilities (McCardle et al., 2005). Misclassification of students with LEP as students with a disability, however, may place them into instructional programs that do not address their language learning needs and worsen rather than improve educational opportunities (Fetler, 2008). These challenges do not pertain to all students who are learning English as a second language; given the ever increasing number of students with LEP and the learning challenges they encounter in public schools, enforcing the right of this population to meaningful educational opportunities is often addressed through the courts. Consequently, this article reviews relevant litigation and legislation regarding students with LEP who have disabilities and provides recommendations for improved practice.

Equal Opportunity and Legislation

The Equal Educational Opportunities Act (EEOA), along with the Bilingual Education Act, was part of the 1974 amendments to the Elementary and Secondary Education Act. The EEOA affirmed that no state could deny a student educational opportunity based on race, color, sex, or national origin by deliberate segregation. For students with LEP, the EEOA specified that school districts must take appropriate action to overcome language barriers that impede effective participation by its students in its instructional programs (EEOA, 1974). The EEOA also allowed individuals who have been denied equal educational opportunities to file civil suits in federal trial courts against such parties as may be appropriate. Despite the intent of the law, the meaning of “equality” in education for students with LEP has been left to the courts to decide (Mongiello, 2011).

Supreme Court cases such as Brown v. Board of Education (1954), which ruled that segregation of children based on race denied children of the minority race equal educational opportunities, provided the impetus for addressing the needs of a host of disenfranchised populations (e.g., students with disabilities). In addressing the needs of students with LEP, legal precedence has established that providing students with LEP with the same materials, teachers, and facilities does not in itself constitute “equal opportunity” to learn (Lau v. Nichols, 1974). Indeed, districts must develop and implement programs designed to address the needs of this population (Idaho Migrant Council v. Board of Education, 1981; Keyes v. School District No. 1, Denver, Colorado, 1973) and must show that the English language development programs are effective (Cintron v. Brentwood Union Free School District, 1978). In summary, as articulated in Castañeda v. Pickard (1981), districts must (a) develop an English language development program that is based on sound educational theory, (b) implement the program, and (c) after a sufficient trial period, evaluate the program to determine its effectiveness in overcoming language barriers.

Students With LEP Who Have Disabilities

As stated earlier, concerns over the needs of students with LEP are exacerbated when a disability is suspected. Since January 2000, according to the Special Educator (a Labor Relations Press bimonthly publication), two state education agency rulings, six Office of Civil Rights rulings, and two federal court cases had involved students with LEP with disabilities. Although this legal activity appears to be minimal, decisions that were rendered point to the persistent challenges that schools face in addressing the needs of students with LEP and a disability. The following sections discuss these developments by summarizing case law for (a) nondiscriminatory evaluation procedures, (b) timely evaluation, and (c) parental involvement.

Designed to ensure a free, appropriate public education for qualified children with disabilities, the Individuals with Disabilities Education Improvement Act (IDEA, 2004) has specific requirements involving students with LEP. IDEA requires that assessments and evaluation materials used for special education eligibility

(i) are selected and administered so as not to be discriminatory on a racial or cultural basis; [and] (ii) are provided and administered in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer. (Sec. 614(b)(3)(A))

Furthermore, IDEA also mandates that a child

shall not be determined to be a child with a disability if the determinant factor for such determination is (a) lack of appropriate instruction in reading, including in the essential components of reading instruction (as defined in section 1208(3) of the Elementary and Secondary Education Act of 1965); (b) lack of instruction in math, or (c) limited English proficiency. (Sec. 614(b)(5))

Despite protections provided through IDEA (2004) to minimize cultural, linguistic, and racial bias, there remain instances of improper classification and placement of students with LEP (Schon, Shaftel, & Markham, 2008). Several prominent court cases have addressed the validity of evaluation procedures in determining eligibility for special education. Specifically, students with LEP cannot be placed in special education solely on the basis of culturally biased tests or tests administered only in English (Diana v. State Board of Education, 1970); wrongful placement because of culturally biased assessments and failure to secure parental consent requires retesting using strategies to compensate for cultural bias (Covarrubias v. San Diego Unified School District, 1971). Adaptive behavior must be assessed and parent interviews must be conducted in the family’s primary language (Guadalupe Organization Inc. v. Tempe Elementary School District, 1978).

More recent case law has addressed the persistent concern that evaluations must be in accordance with IDEA (2004) requirements regarding the student’s native language (Marple Newtown School District v. Rafael N., 2007; see also Springfield [MO] R-XII School District, 2009; Yucaipa-Calimesa Joint Unified School District, 2010) and the need for the evaluation team to consist of persons knowledgeable about the student’s needs and placement options (Mount Vernon [WA] School District, 2008). Timely evaluations are to be enforced (Fair Lawn (NJ) School District, 2010; Hawaii [HI] State Department of Education, 2009; Northshore (WA) School District No. 417, 2009), and policies that dictate a waiting period for students with LEP to gain English proficiency before evaluations can take place are questionable (Muhmid v. Abraham Lincoln High School, 2010).

Furthermore, IDEA requires that notifications and referrals to the parents of students with LEP be communicated in the native language of the parents (20 U.S.C. § 1414 et seq.). Specifically, failure to provide parents with adequate prior written notice in the native language prevents parents from being able to participate effectively in placement decisions (Adams County School District, 2010; Los Angeles County (CA) Office of Education, 2003; Victor Valley (CA) Union High School District, 2007). Violations may be severe, as a district was ordered to provide the student with compensatory education and to provide placement process documentation to the parent in a language he could understand, including hiring an interpreter (Marple Newtown School District v. Rafael N., 2007).

In summary, students with LEP must be objectively assessed for English proficiency, preferably by an evaluator proficient in the student’s dominant language (Oakland & Gallegos, 2005). A true disability must be apparent in both languages. Without a disability in the student’s dominant language, there can be no disability in the second language (Schon et al., 2008). Furthermore, policies that dictate a waiting period for students with LEP to gain English proficiency before evaluations can take place are prohibited (Oakland & Gallegos, 2005). Finally, provisions must be made for the meaningful participation of parents by providing information in their native language and ensuring the presence of an interpreter if needed.

Conclusions

Although there is a limited number of cases involving students with LEP, rulings from these cases still address concerns first brought to the attention of courts decades ago. This finding underlines the importance of school districts being proactive in addressing the needs of students to ensure meaningful educational opportunities. If lack of English language proficiency keeps students from participating in a meaningful way in the educational process, the school district must provide a program to help students with LEP improve their English so that they can benefit from the classroom instruction (see Castañeda v. Pickard, 1981).

In addressing these language needs, particularly with regard to students suspected of a disability, it is necessary that a nondiscriminatory process be in place that meets IDEA-related mandates. Assessment instruments as well as test administration procedures must be free of cultural and linguistic biases. School systems should make every effort to use qualified personnel for assessing students with LEP. Assessment personnel should ideally be knowledgeable about second language acquisition and the effect of culture and sociocultural factors on student performance. Personnel should also be well versed in effective instructional practices for students with LEP who have disabilities (Ortiz, 2002). If a school district does not have access to bilingual evaluators, every effort must be made to contract these services. Failure to provide these accommodations may result in a misidentification of a disability or a failure to identify a disability. In addition, the evaluation process must be completed in a timely fashion. Policies that impose a minimum time period before a newly arrived student with LEP may be referred for special education evaluation, including speech and language assessment, are prohibited (IDEA, 2004).

Parents must be given the opportunity to participate in instructional decisions about their child by providing a same-language interpreter who may need to translate invitations, referrals, and other required documents as well as interpret during all meetings. Indeed, improving evaluation processes for students with LEP is critical to limiting the misclassification of students with LEP in special education as well as designing appropriate programs.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

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