ELL Assessment for Linguistic Differences vs. Learning Disabilities
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Legal and Ethical Provisions

Ethical Considerations

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. A code 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.

Legal Provisions Affecting English Language Learners (ELLs)
With and Without Special Needs

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:

    1. Prevention and early intervention services to avert unnecessary special education referrals. [Please refer to Responseto Intervention(RTI)]
    2. Referral processes that distinguish struggling learners from students who are likely to have disabilities
    3. Assessments conducted by qualified bilingual evaluators who:
      • 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; and
      • 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
    4. 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 are provided
    5. 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


Federal Legislation

  • Civil Rights Act (1964) PL 88-352
    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 25, 1970)
    "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, schools are
  • (a) required to communicate with parents in a language they understand
    (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 children. http://www.ed.gov/about/offices/list/ocr/ellresources.html

  • Office for Civil Rights Legal Memorandum (1991)
    "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 Act)

    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.
    • 1997- IDEA was restructured under (PL 105-17) to increase emphasis on parent participation and mandated the inclusion of special education students in state and district wide assessment programs.


  • 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

Significant Court Cases

  • 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 in English.
  • 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. 202 (1982)
    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 Amendment.
  • Castañeda vs. Pickard, 648 F. 2d 989 (5th Cir. 1981)
    The ruling in this case requires schools to use a three-pronged approach to assure that schools are complying with their obligation under the regulations implementing Title VI of the Civil Rights Act of 1964 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. This approach includes

    (a) A practice grounded in sound educational theory
    (b) Effective implementation of an appropriate program
    (c) Assurance that the program is working through an evaluation and subsequent program modification to meet this requirement


  • Office of Civil Rights Policy Update on Schools' Obligations Toward National Origin Minority Students With Limited English Proficiency (1991) adopted the three prongs of Castañeda above, required that all language minority students be assessed for fluency, that parents be provided school information in a language they understand, and that schools assure that instruction to limited English proficient students is carried out by qualified staff. http://www.ed.gov/about/offices/list/ocr/docs/lau1991.html

Other Court Cases Supporting Bilingual Education

  • Jose, P. v. Ambach, 557 F. Supp. 11230 (E.D.N.Y., 1983).,
    United Cerebral Palsy (UCP) of New York v. Board of Education of the City of New York, 79 C. 560 (E.D.N.Y. 1979)., and
    Dyrcia S. v. Board of Education, 79 C. 2562 (E.D.N.Y. 1979).

    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 rights booklet.
    (e) Hire community workers to facilitate the involvement of parents in the assessment process and development of their Individual Education Plans (Baca, 1990).

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