and Ethical Provisions
It is important to consider what is fair and ethical in the
assessment of English Language Learners at a time when
there are not enough highly qualified personnel, and current
policies in some states deny some CLD students their right to access a free
and appropriate education in the least restrictive environment when the emphasis is on English only instruction.
of ethics for teaching and assessing ELL/CLD students with and
without special needs is not yet available but needs to be developed.
Special Education Professional Ethical Principles and Practice Standards for Special Education Professionals can be found at CEC website.
Affecting English Language Learners (ELLs)
With and Without
Legal provisions affecting English Language Learners
(ELL/CLD) with and without Special Needs in the USA ensure
that these studnets receive a free and appropriate public
education. Ortiz & Yates, 2001 (as cited in Artiles
and Ortiz, 2002) point out that, given the current legislation,
schools should put into place the following practices:
- Prevention and early intervention services to avert
unnecessary special education referrals. [Please refer to Responseto Intervention(RTI)]
- Referral processes that distinguish struggling learners
from students who are likely to have disabilities
- Assessments conducted by qualified bilingual evaluators
- use instruments and procedures appropriate for
English language learners;
- provide accurate data about native language
and English language performance;
- identify modifications of instruction, methods,
and materials needed for both native language
and English as a second language instruction;
- provide data to rule out such factors as limited
English proficiency, cultural differences, economic
status, and opportunity to learn as the causes
of learning problems
- Multidisciplinary teams made up of experts in the
education of English language learners and in assessment
and placement alternatives; interpreters for non-English-speaking
parents, and administrators to ensure that needed
bilingual special education programs and services
- IEPs that are culturally and linguistically relevant
and that describe the extent to which students will
participate in bilingual education, English as a second
language (ESL), and general education programs and
in-state or district accountability system.
To offer a variety of bilingual special education alternatives,
such as special education classes that provide native
language and ESL instruction concurrently and inclusive general education
classes in which expertise in teaching English language
learners with disabilities.
The following is an overview of major federal laws and court cases from both Special Education and English Language Education that have an impact on learning for ELL/CLD students with and without disabilities in the United States :
FEDERAL LAWS: Civil Rights, Language(s) of Instruction and Special Education
- Civil Rights Act (1964)
The Civil Rights Act prohibits discrimination
on the basis of race, color, religion, sex, or national
origin (U.S. Commission on Civil Rights, 1997) in
public facilities including any elementary or secondary
(high) school, college or institution beyond secondary
level (including vocational or technical colleges)
receiving public (governmental) funding. http://usinfo.state.gov/usa/infousa/laws/majorlaw/civilr19.htm
- Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of national origin (and other civil rights).
- Office for Civil Rights Memorandum (May
"Identification of Discrimination and the Denial
of Services on the Basis of National Origin"
This document explains that schools cannot exclude
children from effective participation simply because
they do not understand, speak or read English. Additionally,
(a) required to communicate with parents in a language
(b) prohibited from placing children in Special Education
because of language differences
(c) required to avoid any language-based placement
that permanently puts students in an ability group
or 'track', and
(d) required to teach English to language minority
- Office for Civil Rights Legal Memorandum
"Policy Update on Schools' Obligations Toward
National Origin Minority Students With Limited English
Proficiency (LEP students)"
The 1991 policy update was designed to ensure that
schools were in compliance with Title VI of the Civil
Rights Act of 1964, which requires them to provide
"any alternative language programs necessary
to ensure that national origin minority students with
limited-English proficiency (LEP students) have meaningful access to the schools' programs."
- The Elementary and Secondary
Education Act (BEA) (1968) PL 90-247
The Elementary and Secondary Education Act modified
existing programs, authorized support of regional
centers for education of handicapped children, recruitment
of personnel and dissemination on education of the
handicapped; technical assistance in education to
rural areas; support or dropout prevention projects;
and support of bilingual education programs. http://www.nabe.org/policy_lawsrulings.asp
- Bilingual Education Act
(BEA) (1968) PL9O-247 "Title VII of the Elementary
and Secondary Education Act"
The Bilingual Education Act provides funding
to local school districts for innovative programs
for students with limited English skills. The BEA
does not mandate any specific programs, but encourages
districts to develop programs through the use of discretionary
funding grants. The BEA has been amended as follows:
- 1978 - amended to emphasize transitional nature
of native language instruction and expand the
eligibility of LEP students
- 1984 - amended to permit maintenance of native
language, provide funding for LEPs with special
needs, and emphasized teacher training
- 1988 - amended to increase funding for English
only programs and impose a 3-year limit on participation
in most bilingual education programs
- Section 504 of the Vocational
Rehabilitation Act (1973) (PL 93-112)
This act prohibits the denial of programs and services
to individuals with disabilities who would otherwise
be eligible for such services.
- Equal Educational
Opportunities Act (1974) (PL 93-380)
The EEOA prohibits specific discriminatory conduct,
including segregating students on the basis of race,
color or national origin, and discrimination against
faculty and staff. Furthermore, the EEOA requires
school districts to take action to overcome students'
language barriers that impede equal participation
in educational programs.
- Education for all Handicapped
Children Act (1975) (PL 94-142)
This law, later renamed the Individuals with Disabilities
Education Act (IDEA), mandated free, appropriate public
education for all children with disabilities ages
6 to 21 and provided states with financial assistance.
- Americans with Disabilities
Act (1990) (PL 101-336)
This law provides civil rights protection to people
with disabilities in employment, access to public
services, accommodations, transportation, and telecommunications. www.ada.gov/pubs/ada.htm
- Individuals With Disabilities
Education Act (1990) (PL 101-476)
(originally the Education for all Handicapped Children
This act requires that student evaluations must be
conducted in the child's native language, and that
parents must be informed of the evaluations and their
rights in a language they can understand. IEPs must
state the modifications of instruction, methods, and
materials needed for both native language and English
as a second language instruction.
- Improving America's Schools
Act (1994) PLIO3-382
This act re-authorizes Title VII which funds initiatives
and programs that allow states and districts to meet
the educational needs of culturally and linguistically
diverse students. The law supports professional development,
increases attention to language maintenance and provides
support for research and evaluation.
- No Child Left Behind Act
(2001) (PL 107-110)
This act mandates increased accountability by states
and districts regarding adequate yearly progress for
language minority students especially under Titles I and III of the Act by setting annual achievement
objectives for limited English proficient students
and setting English language proficiency as an objective.
It further mandates the use of annual assessments
in reading and language arts in English and requires
that teachers be certified as English language teachers.
- Title III — Language Instruction for Limited English Proficient and Immigrant Students http://www.ed.gov/policy/elsec/leg/esea02/pg40.html
- Brown vs. Board of Education,
34 U.S. 483 (1954)
On May 17, 1954, the US Supreme Court ruled that:
(a) The history of the Fourteenth
Amendment is inconclusive as to its intended effect
on public education.
(b) The question presented in
these cases must be determined not on the basis
of conditions existing when the Fourteenth Amendment
was adopted, but in the light of the full development
of public education and its present place in American
life throughout the Nation.
(c) Where a State has undertaken
to provide an opportunity for an education in
its public schools, such an opportunity is a right
which must be made available to all on equal terms.
(d) Segregation of children
in public schools solely on the basis of race
deprives children of the minority group of equal
educational opportunities, even though the physical
facilities and other "tangible" factors
may be equal.
(e) The "separate but equal"
doctrine adopted in Plessy v. Ferguson, 163 U.S.
537, has no place in the field of public education.
- Diana vs. State Board of
Education, CA 70 RFT (N.D. Cal. 1970)
Plaintiffs in Diana v. State Board of Education (1970),
filed on behalf of Mexican American children in Monterey
County, California, alleged that the school system
was inaccurately identifying Spanish-speaking children
as mentally retarded on the basis of IQ tests administered
in English. The court ruled that non-English proficient
children cannot be placed in Special Education on
the basis of culturally biased tests or tests administered
- Lau vs. Nichols, 414 U.S.
563, 94 S.Ct. 786 (1974)
In Lau vs. Nichols, the US Supreme Court ruled that
the San Francisco Unified School District violated
Title VI of the Civil Rights Act when it failed to
provide services to help Chinese-speaking students
learn English. The Court stipulated that equal educational
opportunity could not be achieved without special
language programs. As a result, the Department of
Health, Education, and Welfare subsequently issued
remedies requiring that school offer bilingual, multilingual,
or transitional bilingual education for eligible participants
(August & Hakuta, 1997)
- Larry P. vs. Riles, 793
F. 2d 969 (9th Cir. 1984).
Larry P. vs. Riles was a California class-action case
that focused on IQ testing of young black children,
and argued that those children had been inappropriately
placed in Educable Mentally Retarded (EMR) classrooms
solely on the basis of an IQ score. The case also
argued that the IQ tests were culturally discriminatory
against black children, as a disproportionate number
of black children had been placed in EMR classrooms.
The numbers were not representative of the general
populations in those regions of California. The court
held that IQ tests were culturally biased against
black children and banned California school systems
from using them when evaluating black children for
special education, and required the use of a multi-faceted
evaluation approach for them. The court went further
by requiring record-keeping and data-collection systems
so that schools could track the numbers of minority
children in EMR classrooms and justify the presence
of black children in those settings.
The Larry P. case established the legal precedent
that tests administered to minority children must
have been validated for use with that population
(Valdés & Figueroa, 1994). Because Larry
P. offered essentially the same protection to African
American students as those afforded Mexican Americans
in the Diana judgment, it provides the legal precedent
against cultural bias in testing.
- Plyler vs. Doe, 457 U.S.
This case held that a Texas statute which withholds
from local school districts any state funds for the
education of children who were not "legally admitted"
into the United States, and which authorizes local
school districts to deny enrollment to such children,
violates the Equal Protection Clause of the Fourteenth
Court Cases Supporting Bilingual Education
- Jose, P. v. Ambach, 557 F. Supp. 11230 (E.D.N.Y.,
United Cerebral Palsy (UCP) of New York v. Board of
Education of the City of New York, 79 C. 560 (E.D.N.Y.
Dyrcia S. v. Board of Education, 79 C. 2562 (E.D.N.Y.
Together, these cases require that school systems:
(a)Use bilingual resources to identify English
language learners that need special education.
(b)Provide evaluations that are in two languages
and are nondiscriminatory
(c) Provide bilingual alternatives at each stage
of special education placement process.
(d) Protect the rights of parents and students and
develop a Spanish language version of the parent's
(e) Hire community workers to facilitate the involvement
of parents in the assessment process and development
of their Individual Education Plans (Baca, 1990).