Legal Requirements to Provide English as a Second Language Services to English Learners


The purpose of this letter is to clarify the legal requirements for providing English as a Second Language (ESL) services to an English Learner.

Identification of English 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, including preK students, to aid in the identification of possible English Learners.

Federal law requires an English Learner to receive ESL services

When a student has been identified as a possible English Learner, that student must be administered the W-APT™ (WIDA-ACCESS Placement Test™) or MODEL™ (WIDA Measure of Developing English Language) in order to place the student in appropriate ESL services. Maine requires the education program of an English Learner to be overseen by a Maine ESL endorsed teacher. Federal law further requires the education of all English 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 learners.

Exit Criteria from ESL Services

Board-adopted SAU Lau Plans, which have been a State requirement since 2003, must stipulate the exit criterion for its ESL program as a Level 6 Composite Score on the ACCESS for ELLs®.  Federal law requires that states define English language proficiency and that all English 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 proficiency assessment ACCESS for ELLs®.  Federal law further requires that any English 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 Learners’ English Language Proficiency

The ACCESS for ELLs® is a federally and state-required annual assessment for all English Learners and participation is a component of No Child Left Behind (NCLB) accountability. Failure of all English 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 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 Learner. Funds under No Child Left Behind Act of 2001, Title III (20 U.S.C. 6801 et seq.) are not allowed to be used for the administration of the ACCESS for ELLs®.

Rights of ELLs

The Civil Rights Act of 1964 remains the foundation of the legal rights of English Language Learners (ELLs).

“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 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 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 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

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