Administrative Letter: #11         
Policy Code: IHBEA
TO: Public School Administrators
FROM: Robert G. Hasson, Jr., Ed. D. Commissioner
DATE: January 12, 2018
SUBJECT: The legal requirements for providing English for Speakers of Other Languages (ESOL) services to an English learner

Topics included in this letter:

• Identification of English learners
• Exit criteria from ESOL services
• Delivery of ESOL services
• Administration of ACCESS for ELLs®
• Enrollment of immigrants and foreign students
• Rights of English learners to education
• English learners and Special Education

Identification of English Learners (EL)

It is a federal requirement that all English learners be identified within 30 days of enrollment from the beginning of the school year or within two weeks of enrollment during the school year.

Each School Administrative Unit (SAU) must administer the Maine Department of Education’s Language Use Survey to the parent/guardian of every student, pre-kindergarten through 12^th grade, enrolling in the SAU for the first time. The Language Use Survey must be included in the SAU’s enrollment packet. If a student changes schools within an SAU, a new Language Use Survey is not required. The purpose of the Language Use Survey is to identify potential English learners. The Language Use Survey decision tree provides guidance on its use. If any question is answered with a language other than English (including Sign Language), the student is administered an English language proficiency screener. Students in kindergarten are administered either the Kindergarten W-APT® or K-MODEL®. Students in grades 1-12 are administered the WIDA Screener Online®. Students who score a composite proficiency level lower than 5.0 are classified as English learners. For students in pre-kindergarten, districts are permitted to use the screening tool of their choice, as there is not currently a WIDA screener assessment for students under age 4 and a half years old. The Maine Department of Education advises SAUs to employ rigorous criteria for identifying English learners in pre-kindergarten to ensure that all eligible students are served.

Available for download on the Maine Department of Education website and from TransACT is the Language Use Survey in English and 25 of Maine’s most commonly spoken languages. Parents/guardians are entitled to complete the Language Use Survey in their preferred language. SAUs must provide interpretation services upon request.

Exit Criteria from ESOL Services

In order to exit from ESOL services, a student must demonstrate English language proficiency. The Maine Department of Education defines English language proficiency as a composite proficiency level of 5.0 on ACCESS for ELLs®. No other measure qualifies an English learner for exit. While a district may choose to continue to provide language support services to students who have demonstrated English language proficiency, such students are no longer classified as English learners and are no longer administered ACCESS for ELLs®.

Delivery of ESOL Services

An SAU is required to determine the components of an effective English language acquisition program tailored to the needs of each student, which may include but is not limited to tutoring, additional classroom support, materials, sheltered instruction, professional development for content area teachers, or other strategies (Office for Civil Rights December 1985 Title VI policy memorandum, Title VI Language Minority Compliance Procedures).

The Maine Department of Education requires the English language support program of an English learner to be provided or overseen by a 660 ESOL-endorsed teacher. (See 34 Code of Federal Regulations C.F.R. Section 100.3 (b)(ii)). All English learners must be provided with English language support services that enable them to meaningfully access the curriculum in order to meet grade-level standards. English language development and content area knowledge are to be acquired simultaneously rather than consecutively. In other words, English language proficiency is not a prerequisite to participate in mainstream classes. If English learners receive services that remove them from content area classes (such as a newcomer program or pull-out services), any academic deficits that result must be remedied so the student remains on track with his/her non-EL peers academically.

English language support services are to be provided in a way that minimizes the isolation of English learners from the general student population and encourages English learners to participate in all aspects of the school program, including advanced coursework, career and technical education, gifted and talented programs, and extracurricular activities. English learners are entitled to ESOL services until exiting by demonstrating English language proficiency on ACCESS for ELLs®.

Administration of ACCESS for ELLs®

Federal and State laws require that the English language proficiency of all English learners be measured annually as a component of accountability under the Elementary and Secondary Education Act (ESEA). If a student is identified as an English learner, that student must be administered ACCESS for ELLs® annually until the student demonstrates English language proficiency. The Maine Department of Education defines English language proficiency as a composite proficiency level of 5.0 on ACCESS for ELLs®. Failure of all English learners to participate in the annual administration of ACCESS for ELLs® may affect ESSA Title IA funding.

State law requires that ACCESS for ELLs® be administered only by an individual trained it its administration. It is not required that this individual be an ESOL-endorsed teacher. However, only an ESOL-endorsed teacher is qualified to design, oversee, and implement an English learner’s English language support program, which includes the interpretation of ACCESS for ELLs® results. Funds under Title III of ESEA are not allowed to be used for the administration of ACCESS for ELLs®.

If parents/guardians have questions about the purpose of ACCESS for ELLs®, direct them to ACCESS for ELLs: FAQs for Parents/Guardians.

Enrollment of Immigrants and Foreign Students

Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin, among other factors, by public schools. SAUs are required under federal law to enroll children regardless of citizenship or immigration status (Plyler v. Doe). This applies to equally to immigrant students and international (i.e. foreign) students attending a Maine public school as an exchange student or tuition-paying student. All students, including immigrant and international students, must be screened for English learner status. Any student who is identified as an English learner, regardless of citizenship or immigration status, is entitled to ESOL services and must be administered ACCESS for ELLs® annually. International students are not exempt from Title I required state academic assessments. In Maine, recently arrived English learners who have been enrolled in a U.S. school for less than 12 months are exempt from one administration of the state’s English language arts assessment only.

SAUs are not permitted to discourage the enrollment of undocumented immigrant children by asking about their immigration status, denying enrollment to those with foreign birth certificates, or denying enrollment to children whose parents decline to provide their social security numbers or race and ethnicity information. Federal regulations allow schools to ask for children’s social security numbers to be used as student identifiers. However, they should inform parents of the purpose and that disclosure of such numbers is voluntary. Schools may not deny enrollment if parents refuse to provide a child’s social security number. SAUs may require proof that a child lives within SAU boundaries, which may include lease agreements, utility bills, or other documents. However, schools may not ask parents about a child’s immigration status to establish residency. SAUs may require proof of a child’s age, but they may not bar enrollment because a child has a foreign birth certificate or no birth certificate. See this fact sheet from the Departments of Justice and Education for more details about acceptable documentation requests.

Rights of English Learners to Education

The Civil Rights Act of 1964 remains the foundation of the legal rights of an English learner. Lau v. Nichols confirms that all English learners are entitled to meaningful access to the curriculum. If a parent refuses ESOL services this must be documented, but parental refusal does not release the school or SAU from its responsibility to provide meaningful education to an English learner. If an English learner cannot make academic progress without ESOL services, the student has a right to ESOL services even if a parent refuses. Parental consent is not required to administer an English language proficiency screener or ACCESS for ELLs®. Under State law SAUs are responsible for administering ACCESS for ELLs® to all English learners, regardless of parental consent (20-A M.R.S. §6209(1-A)). (See “The Legalities Surrounding ‘Opting-Out’ of Standardized Tests in Maine”.)

English Learners and Special Education

Students may qualify for and have legal entitlement to both ESOL and special education services. Appropriate screening is required to determine students’ eligibility for each type of service. Depending on a student’s learning disability and Individual Education Plan (IEP), universal testing tools or accommodations may be needed in order to measure English language proficiency. When evaluating an English learner for learning disabilities, screening must be linguistically and culturally appropriate. It is advisable to measure a student’s skills in the student’s primary language in order to clarify whether challenges are due to a learning disability or English language development.

English learners should not be placed in a special education program unless their exceptionality is well-documented and appropriate procedures for special education services have been followed. English learner status is not a disability and is not covered by the Individuals With Disabilities Education Act (IDEA) or Maine special education regulations.

For English learners with IEP teams, the United States Department of Education has provided the following guidance:

“It is important that IEP Teams for ELs with disabilities include persons with expertise in second language acquisition and other professionals, such as speech-language pathologists, who understand how to differentiate between limited English proficiency and a disability. The participation of these individuals on the IEP Team is essential in order to develop appropriate academic and functional goals for the child and provide specially designed instruction and the necessary related services to meet these goals.”

English learners with learning disabilities are eligible for exit from ESOL services when they demonstrate English language proficiency, whether by achieving a composite proficiency level of 5.0 on ACCESS for ELLs® or P2 on Alternate ACCESS for ELLs®.

If you have questions or would like further information regarding serving English learners, please contact April Perkins, ESOL/Bilingual Programs, at april.perkins@maine.gov, (207)624-6627.