opportunity lost

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OPPORTUNITY LOST:Te Widespread Denial o Serices

to Caliornia Enlis Learner Students

A REPORT BY:

ACLU o Caliornia I Asian Pacifc Aerican Leal Center

January 2013


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Addressing the learning needs

o English Learner (EL) students

is critical to the success o

Caliornias public schools and

ultimately to the productivity and

long term economic health o our state.


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T A B L E O F C O N T E N T S

EXECUTIVE SUMMARY ...................................................................1

CAlIfoRnIAS EnglISh lEARnER PoPUlATIon ............................3

fRAMEwoRk foR PRoVIdIng SERVICES To .................................4

CAlIfoRnIAS El STUdEnTS

no SERVICES foR El STUdEnTS: ................................................5

ThE SCoPE of ThE PRoblEM

IMPoRTAnCE of PRoVIdIng .....................................................10

EnglISh lEARnER InSTRUCTIonAl SERVICES

dEnYIng SERVICES To El STUdEnTS VIolATES ........................11

fEdERAl And STATE lAw

ThE STATES ConTRIbUTIng RolE In CREATIng .......................11

And PERPETUATIng ThE fAIlURE of dISTRICTS

To dElIVER El SERVICES

whAT CAn wE do To AddRESS ThIS PRoblEM? .......................12

ConClUSIon ............................................................................13

EndnoTES .................................................................................14


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Addressing the learning needs o English Learner (EL) students is critical to the success o Caliornias publicschools and ultimately to the productivity and long term economic health o our state.

Students designated as English Learners make up a quarter o all students in the public school system inCaliornia, and more than one out o every our EL students in the nation are enrolled in Caliornia schools.1Additionally, 85% o EL students in Caliornia were born in the United States,2 and many o these students havebeen in United States public schools or their entire lives.3 Repeated studies by the Caliornia Department oEducation, the State Board o Education, and the Caliornia Legislature have documented that this studentpopulation has gotten short shrit rom our schools, and that the consequences have been dire.4

The Caliornia Constitution and countless ederal and state laws mandate the delivery o eective Englishlanguage instruction to EL students, and such services are the obvious rst and essential step in providingaccess to core curricular requirements and delivering equal educational opportunity. And while there needbe no single approach to accomplishing this, there is unanimous agreement that all EL students must receivesome orm o specialized instruction or intervention to have the opportunity to succeed academically.

Nonetheless, too many Caliornia EL students more than 20,000 children are receiving no EL serviceswhatsoever. None. And children are denied services in one out o our districts throughout the state.

In short, our current system suers rom a major breakdown in the most basic aspect o delivering servicesand assuring educational opportunity to EL students. For the 2010-2011 school year, districts reported theollowing data to the Caliornia Department o Education:

20,318 EL students in Caliornia did not receive any language instructional services.

251ofthe960schooldistrictsinCaliforniathatserveELstudentsreportedthattheydeniedEL services to at least one EL student. Thus, one out o eery our scool districts in Caliorniathat serves EL students reported to the State that they did not provide language support to EL studentsmandated by law.

Thedistrictsimplicatedarespreadacrosstheentirestate.Theyaresmallandlarge,ruraland urban, those that have a small EL student population and those that have a large EL student

population. The problem occurs in elementary schools, middle schools, and high schools. 5 districts in Caliornia report providing no language support services to ore tan 1,000 o

teir EL students.

7 districts in Caliornia report providing no language support services to ore tan 500 oteir EL students.

35 districts in Caliornia report providing no language support services to ore tan 100 oteir EL students.

26 districts in Caliornia report providing no language support services to a ajority oteir EL students.

o Some districts with a smaller EL student population report that 100% o their EL students

do not receive services, indicating that the district lacks any EL program.o Some districts with a large EL student population deny services to a substantial percentage

o their EL students, refecting major problems in a program that is critical to meeting theeducation needs o a large percentage o their students.

79 districts in Caliornia report providing no language support services to ore tan 10% oteir EL students.5

Documentation o these acts is not the result o laborious investigations. Rather, these dataincluding thenames o the districts and schools that deny EL students legally mandated servicesare reported annually tothe Caliornia Department o Education and posted prominently by the Department on a state-maintainedwebsite.6The widespread phenomenon o denying services to EL students contributes to poor academic outcomes or

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ExECUTIvE SUmmARY


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EL students in Caliornia and the growing group o EL students known as Long-Term English Learners (LTELs),students who have been designated as English Learners or at least six years but are still eligible or specializedservices because they have not yet achieved high enough prociency in English.7

The State o Caliornias education agencies and ocials have issued reports and published data demonstratingtheir awareness that numerous districts are denying EL students the services necessary or academic success(and to which they are entitled by law). Nevertheless, the State and its educational agencieswhich have theultimate responsibility under Caliornia law and under ederal laws governing services to EL studentshavetaken no steps to enorce the law and to ensure that school districts correct the problem.

Tis reports principal conclusions are (1) tat eac year, tens o tousands o EL studentsae been denied EL serices, to wic tey are entitled by law and witout wic tey cannotreasonably be epected to aster te acadeic sills necessary to succeed in scool, and (2)tis educational crisis will continue, unless te State o Caliornia and its educational aenciestae a eaninul role in respondin to te public acnowledeent by scool districts tattey are ailin EL students at te ost basic leel.

This report begins with an overview o demographics o the EL population in Caliornia, ollowed by a description

o the pervasive denial o services to EL students within Caliornia. Next, the report proceeds to the legal andsocial science ramework or the provision o services or EL students, explaining how this widespread neglectis not only illegal but also extraordinarily harmul to the long-term educational prospects or these students.The report then describes the States role in the creation and perpetuation o this problem. Finally, it oers aresearch-based approach to ensure that all districts have in place programs that meet the academic needs oall EL students that is sound and easible.

Although improving EL services and outcomes is no simple task, closing the gap between EL students academicneeds and the instruction currently oered in public schools is the essential rst step to improving academicoutcomes overall or EL students. The benets o addressing this issue immediately go well beyond thesechildren, their amilies, and our communities. The ultimate beneciary, as when any child is educated to hisor her potential, is all o us.

Core Recoendations. The State, through the Caliornia Department o Education,the State Board o Education, and the State Superintendent o Public Instruction, must ulll its legalresponsibilities by:

1. Investigating any report that EL students are not receiving services.

2. Directing districts with unserved students to develop and submit written plans that involve theprovision o required services to all students and, where appropriate, compensatory services.

3. Veriying that districts are adhering to approved remedial plans and conrming the services

provided or at least two years through site visits or another independent monitoring process.4. Tracking the number o long term English learners (LTELS) and English Learners at risk o becomingLTELS(asdenedinAB2193)whoarenotreceivinganyspecializedinstructional

services required by law.

5. Developing guidelines or a variety o programs and policies that school districts can adoptto ensure that all EL students receive appropriate services, taking into account the range ounique challenges, needs, and instructional settings in districts across Caliornia.


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Under Caliornia law, an English learner is a child who does not speak English or whose native language isnot English and who is not currently able to perorm ordinary classroom work in English.8 English Learner(EL) students are the astest growing student population in schools in the United States and among the lowestachieving subpopulations o students.9 For the 2010-2011 school year, the State o Caliornia reported over1.4 million ELs enrolled in public schools.10 Given the high number o EL students attending Caliornia publicschools, addressing their learning needs must become a priority or the State.

For ELs to participate meaningully in their own education and benet rom academic instruction in English,they must acquire certain skills.11 These skills include the ability to speak, read, and write English prociently.12By denition, then, these students require specialized instructional servicesocused on developing prociencyin academic and conversational Englishto access basic equality in their education.13

ELs within Caliornia are more likely to be students o color and economically disenranchised compared totheir English-procient counterparts.14 Eighty-ve percent o EL students in Caliornia were born in the UnitedStates,15 and many o these students have been in United States public schools or their entire lives. Over haloftheELstudentsingrade6havebeeninthesamedistrictsincekindergarten.16

Far too many o these students never exit the EL program. In Caliornia, a majority o EL students startingthe program in rst grade are not redesignated as fuent in English by twelth grade.17 Improving academicoutcomes or ELs is thus critical to the success o school reorms aimed at improving academic achievement oall students and, more broadly, to reorming Caliornias public education system.

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CALIFORNIAS ENgLISh LEARNER POPULATION


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Caliornia law species three categories o programs or ELs:Structured English Immersion, which is generally limited to the rstyear ater a non-English speaker enrolls in school; English LanguageMainstream or students with reasonable fuency in English; and

alternative programs involving bilingual education or support in thestudents primary language.18

Additionally, Caliornia regulations require school districts toprovide services to students identied as ELs until they areno longer ormally designated as such,19 specicallyuntil they (1) demonstrate English-language prociencycomparable to that o the school districts average nativeEnglish-language speakers; and (2) recoup any academicdecits incurred in other areas o the core curriculum as aresult o language barriers.20

The Caliornia Department o Education requires districtsto report data annually speciying the services they provideto EL students within their district.21 The reporting systemallows districts to select one o six categories or each ELstudent in their district:

1. ELs Receiving English Language Development

(ELD) Services

2. ELs Receiving ELD and Specially Designed

Academic Instruction in English (SDAIE)

3. ELs Receiving ELD and SDAIE with PrimaryLanguage (L1) Support

4. ELs Receiving ELD and Academic Subjects

through the Primary Language (L1)

5. ELs Receiving Other EL Instructional Services

6. ELsNotReceivingAnyELInstructionalServices22

As explained in greater detail below in the section entitledDenying Services to EL Students Violates Federal and State Law,wheneveradistrictreportsstudentsincategorynumber6i.e.,

students who do not receive any EL instructional servicesitthereby acknowledges that it is violating those students civil rights,including their rights under the Equal Education OpportunityAct (EEOA),23 the Caliornia Constitution,24 and the CaliorniaEducation Code.25

FRAmEWORk FOR PROvIDINg SERvICES TO CALIFORNIAS EL STUDENTS


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Notwithstanding the critical importance to the state public education system o ensuring appropriate servicesand success or EL students, our system is currently ailing at the most basic level: Tens o thousands o ELstudents across the state are not being provided anyspecialized language instruction; school districts report

this act to the State, which has a duty to ensure that at-risk student populations like EL students receive basicequality o educational opportunity; and no meaningul steps are being taken to address the problem on asystematic basis.

Denial o EL Services Is a Pervasive, Statewide Problem.Asdemonstratedbelow,ofthe960schooldistrictswithat least one EL student, 251 districts ailed to provide EL services to at least one student.

The school districts reporting that they denied legally mandated services to at least some o their EL studentsare located all over the State, as refected in the graphic on the ollowing page.

NO SERvICES FOR EL STUDENTS: ThE SCOPE OF ThE PROBLEm

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Thus, school districts denying EL services to students are large and small; are located in urban, rural,and suburban communities; and are located in every geographic region o the state.

Recent academic studies o Caliornias EL population ully corroborate that the denial o EL servicesis a major statewide problem. One study o Caliornia students who had been designated as ELsor six years or more showed that three out o our had spent at least two years in no services orin mainstream placements, and that 12% . . . may have spent their entire schooling in mainstreamclasses with no services.26 Another study conrmed that many, perhaps most [EL] students at thehigher levels o English prociency are not in classes that provide sheltered or ELD instruction.27


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The Fifteen Districts with the Highest Percentages of EL Students Reported as Receiving No

Services

(Minimum EL Population of 25 Students)

District County

EL Students

Receiving NoServices

Total EL

Students inDistrict

Percentage of EL

Students ReceivingNo Services

Wheatland Union High Yuba 23 27 85%

Mt. Shasta Union Elementary Siskiyou 27 37 73%

Hermosa Beach City

ElementaryLos Angeles 34 59 58%

Gateway Unified Shasta 89 163 55%

William S. Hart Union High Los Angeles 1,142 2,118 54%

Fremont Union High Santa Clara 474 1,015 47%

Salinas Union High Monterey 1,618 3,784 43%

Grossmont Union High San Diego 1,389 3,368 41%

Ballico-Cressey Elementary Merced 61 168 36%

Keyes Union Stanislaus 144 418 34%

Gridley Unified Butte 123 397 31%

Dehesa Elementary San Diego 30 97 31%

Julian Union Elementary San Diego 14 46 30%

Marcum-Illinois Union

ElementarySutter 20 66 30%

Lowell Joint Los Angeles 116 385 30%

Although Widespread, the Nature o the Denial o EL Services Varies Across Districts. Unsurprisingly, thedemographics o the 251 school districts that report denying services to EL students vary considerably.28

Although the numbers can be parsed a number o dierent ways, analyzing the data in two dierent

waysthe total number o EL students aected by a districts denial o EL services and the percentage oa districts EL students aectedprovides important insight into the problem. The ollowing two tablesrefect the 15 districts with the highest percentage o EL students receiving no services and highest totalnumber o EL students receiving no services, respectively.

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Percentage of eL students affected.For nearly one-third o school districts that reportdenyingservicestoELstudents(79outof251),thedenialofELservicesaffectsatleast10%ofthedistricts

ELpopulation.Additionally,for10%ofthedistricts(26outof251),amajorityoftheELstudentsaredeniedEL services. The graphic below summarizes the percentage o the EL population denied services among the251 school districts that report denying EL services to eligible students.


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totaL number of eL students affected.As the graphic below refects, out o the 251schooldistricts that acknowledge that they deny EL services to eligible students, 35 deny services to more than 100EL students. Additionally, seven o these school districts deny EL services to 500 or more EL students. Asubstantial majority o districts (80%) deny services to ewer than 100 students, suggesting that many o thedistricts implicated have ew EL students and are denying services to almost all o them, or that they aredenying services to a small percentage o a large EL population.

In short, although the ailure to provide language services to EL students is a pervasive statewide problem,the nature o the EL population and the reasons or ailing to provide them services varies among districts.29

Accordingly, any solution to the problem will need to be fexible enough to address its diverse causes, andleave room or inevitable variances in local programs.

As documented in the ollowing sections, the widespread ailure o school districts to provide EL services toEL students is illegal and contributes in the rst instance to the persistently low academic achievement o ELstudents.

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Research shows that placing EL students into a mainstream English setting with no specialized instruction

rom teachers trained on language acquisition techniques results in the lowest academic outcomes o anyapproach to instructing EL students.30 In act, [s]tudents who have been in these settings in elementaryschool are the lowest achievers in comparison to students in any specially designed EL program. By middleschool and high school, EL students who have been in any orm o specialized instruction are more likely toscore at grade level and less likely to drop out o high school than those who were in mainstream settings,i.e., those who have not received any specialized services.31 Research also demonstrates (unsurprisingly) thatstudents who receive[d] no [EL] intervention perormed at the lowest levels and had the highest drop-outrates.32

Students who have been in EL programs or several years but have not yet been reclassied are at particularrisk o being denied EL services because when those students transition rom a structured English immersionclassroom setting into mainstream classes, the continuing language development instruction to which

they are legally entitled does not always occur.33 Even the most eective EL programs, with specializedinterventions to address the language development needs o the students, generally require 4 to 7 years todevelop academic language prociency,34 underscoring the importance o providing instruction tailored tothe language acquisition needs o EL students until they have reclassied.

Among our states EL population, EL students who do not receive specialized instruction are likely to be thelowest perorming and the most at risk o dropping out or experiencing persistent academic ailure.

Although there is debate over the most eective way to address the needs o EL students, there is broad consensusthat completely denying EL students instruction or services to address their English language knowledge andskills is predictive o long-term academic ailure.

Source: Caliornia Department o Education, Dataquest, 2010-11 English Learners, Instructional Settings and Services,available at: http://data1.cde.ca.gov/dataquest/ElP2_State.asp?RptYear=2010-11&RptType=ELPart2_1a

As the chart above refects, school districts report to the Caliornia Department o Education

how many students receive EL services annually. Districts must indicate or each student

whether he or she is being served in one o ve instructional settings (each o which

involves some orm o specialized language instruction) or is receiving no services.

ImPORTANCE OF PROvIDINg ENgLISh LEARNER INSTRUCTIONAL SERvICES


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DENYINg SERvICES TO EL STUDENTS vIOLATES FEDERAL AND STATE LAW

ThE STATES CONTRIBUTINg ROLE IN CREATINg AND PERPETUATINgThE FAILURE OF DISTRICTS TO DELIvER EL SERvICES

In addition to ignoring a compelling body o research, ailing to provide EL students with services to addresstheir language acquisition needs violates clear mandates o both Caliornia and ederal law.

State Constitutional Right to Equal Educational Opportunity. Under the Caliornia Constitution, students havea undamental right to basic equality in their education in public schools. An educational agency violates

students constitutional rights where it (1) creates a real and appreciable impairment on the right to educationthat alls substantially below statewide standards, and (2) does not have a compelling reason or doing so.School districts serve as agents or the State, and the State itsel bears the ultimate authority and responsibilityto ensure that its district-based system o common schools provides basic equality o educational opportunity.35

Equal Educational Opportunities Act. Under the ederal Equal Educational Opportunities Act (EEOA), (1)districts must pursue a program inormed by an educational theory recognized as sound by experts in theeld, or, at least, deemed a legitimate experimental strategy, (2) the programs and practices actually usedby the districts must be reasonably calculated to implement eectively the educational theory adopted, and(3) the districts program must not continue to ail, ater being used or enough time to give the program alegitimate trial, in producing results indicating that the language barriers conronting EL students are actuallybeing overcome.36 The United States Supreme Court has recognized there is no equality o treatment merely

by providing students with the same acilities, textbooks, teachers, and curriculum; or students who do notunderstand English are eectively oreclosed rom any meaningul education.37 In other words, schools arenot ree to ignore the need o limited English speaking children or language assistance to enable them toparticipate in the instructional program o the district.38

When a school district declines to provide any instructional services or its EL students, this treatment violatesboth the Caliornia Constitution and the EEOA. Under the EEOA, districts must pursue a program or addressingthe language development needs o EL students that is recognized as pedagogically sound, and providing noservices to EL students is no program at all. Thus, EL students who do not receive the language developmentservices that would allow them to access the academic curriculum are denied equal educational opportunity.

The Caliornia Constitution makes public education uniquely a undamental concern o the State and prohibitsmaintenance and operation o the common public school system in a way which denies basic educationalequality to the students. The State itsel bears the ultimate authority and responsibility to ensure that its district-based system o common schools provides basic equality o educational opportunity. Butt v. California, 4 Cal.4th668,685(1992).Becauseeducationisafundamentalright,anyactionthathasarealandappreciableimpact upon such right is subject to strict scrutiny. Serrano v. Priest (Serrano II),18Cal.3d728,761,767-768(1976).TheStatethereforeisobligedtointervenewhenalocaldistrictsscalproblemswouldotherwise

deny its students basic educational equality, unless the State can demonstrate a compelling reason or ailingto do so. Butt,4Cal.4that692.Thisdutyisnon-delegable.

In Lau v. Nichols,414U.S.563 (1974), theUnitedStatesSupremeCourtheld that the failureof theSanFrancisco school system to provide English language instruction to approximately 1,800 non-English speakingChinese students denied them a meaningul opportunity to participate in the public education program inviolationofTitleVIoftheCivilRightsActof1964. Lau thus holds that school districts must provide non-Englishspeaking students meaningul access to the curriculum and remains the law under the EEOA.39

This core holding o Lau has been armed in Castaneda v. Pickard,648F.2d989(5thCir.1981),afederalcourt decision that sets orth a three-part test to evaluate whether a State or district is complying with the

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EEOA. Under the EEOA,No State shall deny equal educationalopportunity to an individual on account o his or her race,color, sex, or national origin by the ailure by an educationalagency to take appropriate action to overcome languagebarriers that impede equal participation by its students inits instructional programs..40 Castaneda makes clear thatthe EEOA preserves the principles set orth in Lau. Underthe rst prong o the Castaneda test, the court evaluates thesoundness o the educational theory or principles upon whichthe challenged program is based.41 Numerous courts acrossthe nation have adopted this test.42 The EEOA leaves no roomor the absence o any EL instructional program or denial o ELservices to EL students.43

In 2012, the Caliornia Department o Education representedthat all English Learners are provided with English languagedevelopment (ELD) instruction targeted to their Englishprociency level and appropriate academic instruction in oneo three settings to ensure that they acquire ull prociency inEnglish and meet the same grade-level academic standards

expected o all students.

44

This assertion, however, iscontradicted by the Departments recognition in the verysame act sheet that [a] total o 20,318 English Learnersdo not receive any instructional services required or EnglishLearners.45

Despite this acknowledgement that more than 20,000 students are not receiving the legally mandatedservices needed to provide access to a basic education to EL students, the State agencies responsible or theconstitutional and statutory rights o students have taken no action to enorce any o the applicable laws.Nor has any State agency publicly acted to correct this unlawul practice, investigate the total ailure to oerEL services, or provide meaningul guidance to districts on providing required EL instruction to all o their ELstudents, as required by law.

WhAT CAN WE DO TO ADDRESS ThIS PROBLEm?

1. The State, through the Caliornia Department o Education, the State Board o Education and the StateSuperintendent o Public Instruction must carry out their legal responsibilities to enorce the law.

Districtsmustprovideservicesorimmediatelydevelopaplanfordoingso,andtheStatemusthold these districts accountable.

2. The State should create a system to investigate reports that ELs are not receiving services. TheStatecurrentlygeneratesareportusingdistrictdataindicatingtheinstructionalservicesprovided

to EL students. WheneveradistrictreportsthatoneormoreELstudentsarereceivingnoELservices,CDEmust

investigate the basis or the report and determine whether the district is ailing to provide EL servicesas required by law.

3. I CDE determines the district is ailing to provide EL services as required by law, it should direct thedistrict to develop and submit a written plan to ensure that all EL students are provided EL services andbegin providing the necessary services.

Theplanshouldbeforaperiodofnolessthantwoyears. DistrictsshouldberequiredtoprovidecompensatoryservicesforstudentsunlawfullydeniedEL


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CONCLUSION

There are a number o appropriate common-sense, research-based methods or ensuring the delivery obasic English acquisition services to EL students. Although schools have the opportunity to develop and designtheir programs to meet the needs and priorities o the local community, the State must develop and maintainsome minimum expectation o access to educational opportunity or all students and have some meaningulmechanism to ensure that districts correct signicant breakdowns that cut to the heart o programs designed to

meet the needs o such an important population within Caliornias public education system.

The ailure to provide EL students with language services is a long-standing problem that has been publiclyacknowledged by hundreds o school districts and state ocials charged with ensuring that our public schoolscomply with basic education and civil rights laws. The time or action is now: the longer that we tolerate sucha undamental breakdown in the statewide process or serving EL students, the longer our education systemwill ail to meet the needs o a substantial portion o our states children.

services, unless CDE approves a plan that includes an instructional strategy that is reasonably likelyto remediate students who had been denied EL services.

CDEshouldensurethatdistrictplansadequatelyaddressthefollowingissues:o EL students are entitled to specialized instructional services that will ensure that they are able to

access the core academic curriculum.o Providing a qualied teacher who does not provide specialized instructional services or EL studentsdoes not ulll districts obligation to provide EL students with EL services.

IfthedistrictdoesnotdevelopaplanorprovideservicestoallELs,thedistrictshouldbesubjecttoappropriate oversight and sanctions to enorce the law.

4. CDE should veriy that the district is complying with the plan and that all students are receiving ELservices ater its adoption and at the start o the next school year. In addition, the State should trackwhether services are actually being provided, by conducting site visits or through some other independentmonitoring process, to ensure that districts are actually providing EL services (rather than simply puttingcredentialed teachers in the classroom but providing no specialized instruction).

5. CDE should develop a system to track data about the long term English Learners (LTELS), English learnersat risk o becoming LTELS, and English learners who are not receiving any specialized instructionalservices. LTELS are English learners who:

Areenrolledinanyofgrades6to12; HavebeenenrolledinschoolsintheUnitedStatesformorethansixyears;

HaveremainedatthesameEnglishlanguageprociencylevelontheCELDTfortwoormore consecutive years; and

ScorefarbelowbasicorbelowbasicontheCSTforEnglishLanguageArts.

6. CDEshoulddevelopguidelinesforprogramsandpoliciesthatdistrictscanadopttoensurethatallELstudents receive appropriate services.

Theguidanceshouldincludeanon-exhaustivelistofapprovedprogramsthatdistrictscanimplement,including English Language Development, Structured English Immersion, and targeted interventionor tutoring services.

Indevelopingguidelines,CDEshouldtakeintoaccounttheneedforawidevarietyofprogramsthataddress each districts unique needs, including the number o EL students, proportion o EL studentsto total enrollment, and larger districts without sucient qualied sta to provide required instruction.

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ENDNOTES

1Caliornia Department o Education, DataQuest [hereinater Dataquest], http://dq.cde.ca.gov/dataquest/LEPbyLang1.asp?cChoice=LepbyLang1&cYear=2010-11&cLevel=State&cTopic=LC&myTimeFrame=S&sub-mit1=Submit (last visited January 14, 2013) (indicating a total EL count in Caliornia at 1,441,387); MIGRA-TIONPOLICYINSTITUTE,ELLINFORMATIONCENTERFACTSHEETSERIES,NUMBERANDGROWTHOF

STUDENTSINUSSCHOOLSINNEEDOFENGLISHINSTRUCTION(2010),http://www.migrationinforma-tion.org/ellino/FactSheet_ELL1.pd (last visited January 14, 2013) (calculating 5.3 million ELs in the UnitedStates and indicating that 28% o EL students in the United States live in Caliornia); LEGISLATIVE ANALYSTSOFFICE,ANALYSISOFTHE2007-08BUDGETBILL:EDUCATIONE-121,availableathttp://www.lao.ca.gov/analysis_2007/education/ed_anl07.pdf(lastvisitedJanuary14,2013)(counting1.6millionELsinCaliornia).2CHRISTOPHERJEPSEN&SHELLEYDEALTH,ENGLISHLEARNERSINCALIFORNIASCHOOLS10(2005)(CITINGTAFOYA,SONIAM.,THELINGUISTICLANDSCAPEOFCALIFORNIASCHOOLS,CALIFORNIACOUNTS, VOL 3., NO. 4, PUBLIC POLICY INSTITUTE OF CALIFORNIA, SAN FRANCISCO, CALIFORNIA,2002).376%ofelementaryschoolstudentsand56%ofhighschoolstudentswhoareELswerebornintheUnited

States. A majority o ELs in high schools are second- or third- generation U.S. citizens. NATIONAL EDU-CATIONASSOCIATION,ENGLISHLANGUAGELEARNERSFACEUNIQUECHALLENGES1(2008),http://www.weac.org/Libraries/PDF/ELL.sb.ashx(lastvisitedJanuary14,2013)(citingR.CAPPSETAL.,THENEWDEMOGRAPHYOFAMERICASSCHOOLS:IMMIGRATIONANDTHENOCHILDLEFTBEHINDACT18(2005)).4See, e.g., Patricia Gndara & Russell W. Rumberger, Resource Needs or Caliornias English Learners, 5-10(2006),availableathttp://irepp.stanford.edu/documents/GDF/STUDIES/22-Gandara-Rumberger/22-Gan-dara-Rumberger%283-07%29.pdf.5See Dataquest, http://dq.cde.ca.gov/dataquest/ElP2_State.asp?RptYear=2010-11&RptType=ELPart2_1b(ollow County hyperlinks). A chart listing data or all counties or the 2010-11 school year is available athttp://www.aclu-sc.org/cases/english-learners/white-paper/.6See Caliornia Department o Education, Whats In DataQuest?, http://dq.cde.ca.gov/dataquest/what-

sindq.asp(lastvisitedJanuary14,2013);CaliforniaDepartmentofEducation,FACTSABOUTENGLISHLEARNERS IN CALIFORNIA, March 8, 2012, http://www.cde.ca.gov/ds/sd/cb/ceelacts.asp.7LAURIEOLSEN,REPARABLEHARM:FULFILLINGTHEUNKEPTPROMISEOFEDUCATIONALOPPORTUNI-TYFORCALIFORNIASLONGTERMENGLISHLEARNERS1(CaliforniansTogether2010),availableatwww.caliornianstogether.org/docs/download.aspx?leId=227 (last visited January 14, 2013); Cal. Educ. Code 313.1(a).8Cal.Educ.Code306(a).9NationalHispanicCaucusofStateLegislators&TomsRiveraPolicyInstitute,CLOSINGACHIEVEMENTGAPS:IMPROVINGEDUCATIONALOUTCOMESFORHISPANICCHILDREN(April2010),availableathttp://www.trpi.org/PDFs/Closing%20Achievement%20Gaps.pd (last visited January 14, 2013); NationalEducation Association supra note 3, at 1.10

CaliforniaDepartmentofEducation,FACTSABOUTENGLISHLEARNERSINCALIFORNIA,March8,2012,http://www.cde.ca.gov/ds/sd/cb/ceelacts.asp.11Claude Goldenberg, What the Research Does Not Say, AMERICAN EDUCATOR 8-10 (Summer 2008);RichardVerdugo&BrittneyFlores,English-LanguageLearners:KeyIssues,39EDUCATIONANDURBANSOCIETY167,171-74(2007).12SheldonBarr,etal.,CoreStrategiestoSupportEnglishLanguageLearners,76THEEDUCATIONALFORUM105,107-09(2012);KENJIHAKUTA,ETAL.,HOWLONGDOESITTAKEENGLISHLEARNERSTOATTAIN PROFICIENCY? 1-4 (2000).13JIMCUMMINS,READINGANDTHEBILINGUALSTUDENT:FACTANDFRICTION,INENGLISHLEARN-ERS,REACHINGTHEHIGHESTLEVELOFENGLISHLITERACY5(GilbertG.Garciaed.,2003).14OLSEN, supra note 7, at 18.


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15JEPSEN&ALTH,supranote2,at10(CITINGTAFOYA,SONIAM.,THELINGUISTICLANDSCAPEOFCALIFORNIASCHOOLS,CALIFORNIACOUNTS,VOL3.,NO.4,PUBLICPOLICYINSTITUTEOFCALIFOR-NIA, SAN FRANCISCO, CALIFORNIA, 2002).16Id.17YangSaoXiong,StructuringInequity:HowCaliforniaSelectivelyTests,Classies,andTracksLanguageMinorityStudents,eScholarshipUniversityofCalifornia145,158(2006),http://escholarship.org/uc/item/98d66346(lastvisitedJanuary14,2012).18Cal.Educ.Code305-306.19Although parents may opt out o a specic instructional setting or ELs, 5 C.C.R. 11301, the State mustensure that districts continue to provide instructional services or ELs until they are reclassied. See, 5 C.C.R.11302;CaliforniaDepartmentofEducation,FACTSABOUTENGLISHLEARNERSINCALIFORNIA,March8, 2012, http://www.cde.ca.gov/ds/sd/cb/ceelacts.asp. Caliornia Department o Education, EL FAQs,available at www.cde.ca.gov/sp/el/er/documents/elaq.doc (last visited January 15, 2013) (Parents mayrequestthattheirchildrenbeexemptedfromaspecicinstructionalsettingHowever,districtsstillhaveanobligation to ensure that students receive ELD and access to other core content areas rom teachers who arequalied to provide such instruction.) (citations omitted).205 C.C.R. 11302.21See Caliornia Department o Education, Language Census, http://www.cde.ca.gov/ds/dc/lc/ (last visitedJanuary 14, 2013) (indicating items collected annually rom districts by CDE); Caliornia Department o Edu-cation,CALPADSSystemDocumentation,CALPADSDataGuidev.4.1,136http://www.cde.ca.gov/ds/sp/cl/

systemdocs.asp (last visited January 14, 2013) (detailing the data EL program sta must provide to CDE).22Caliornia Department o Education, 2010-11 English Learners, Instructional Settings and Services, http://dq.cde.ca.gov/dataquest/ElP2_State.asp?RptYear=2010-11&RptType=ELPart2_1a. (last visited December14, 2012). The statewide total or each o the six categories is reported under the header Row B - Numbero EL Students receiving instructional services. This data is available or each school year beginning with1999-2000,withthemostrecentlyreporteddataforthe2010-11schoolyear.2320 U.S.C. 1703(). No State shall deny equal educational opportunity to an individual on account ohis or her race, color, sex, or national origin, by - () the ailure by an educational agency to take appro-priate action to overcome language barriers that impede equal participation by its students in its instructionalprograms.24CAL.CONST.art.I,7,subds.(a),(b);art.IV,16,subd.(a);Buttv.California,4Cal.4th668,680-81(1992)(holdingtheStateisultimatelyresponsibleforensuringthatschooldistrictsdonotviolatepublicschool students undamental right to equal educational opportunity).25See Cal. Educ. Code 440(a) (stating that local educational agencies shall provide instructional servicesto limited-English-procient pupils and immigrant pupils).26OLSEN, supra note 7, at 14.27A drat o this document is available online. Susana Dutro & Carrol Moran, Rethinking English LanguageInstruction:AnArchitecturalApproach29(2002),availableathttp://elachieve.org/syseld/images/stories/docs/participant/home/Rethinking.pd (last visited January 14, 2013).28An excel le with complete data on provision o services to EL students or all Caliornia public school dis-tricts is available at http://www.aclu-sc.org/cases/english-learners/white-paper/.29This variability could help explain why some districts are not providing services as the law requires. Forexample, in districts denying services to a small percentage o their EL population, the district likely has an

EL program and the issue may be that some students are alling through the cracks, or that a single school isnot oering EL services. In districts denying services to the majority or all o their EL population, by contrast,the district may not have a comprehensive EL program at all, or may include numerous schools ailing toprovide EL services.30GINAMARIEGIANZERO,THEROLEOFTHESCHOOLDISTRICTINIMPROVINGEDUCATIONALOPPOR-TUNITIESANDOUTCOMESFORADOLESCENTENGLISHLANGUAGELEARNERS337(2010),availableathttp://sdsu-dspace.calstate.edu/xmlui/bitstream/handle/10211.10/486/Gianzero_Gina.pdf?sequence=1at113(lastvisitedJanuary14,2013);OLSEN,supranote7,at15;WAYNETHOMAS&VIRGINIACOLLIER,ANATIONALSTUDYOFSCHOOLEFFECTIVENESSFORLANGUAGEMINORITYSTUDENTSLONG-TERMACADEMICACHIEVEMENT2(CREDE2002),availableathttp://crede.berkeley.edu/research/crede/re-search/llaa/1.1_nal.html.

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31OLSEN, supra note 7, at 15.32KATHRYNLINDHOLM-LEARY&GRACIELABORSATO,ACADEMICACHIEVEMENTINEDUCATINGENGLISHLANGUAGELEARNERS:ASYNTHESISOFRESEARCHEVIDENCE202(Genesseeetal,eds.,CambridgeUniver-sityPress,2006)(CITINGTHOMAS,W.,ANDCOLLIER,V.2002.ANATIONALSTUDYOFSCHOOLEFFECTIVENESSFORLANGUAGEMINORITYSTUDENTSLONG-TERMACADEMICACHIEVEMENTFINALREPORT:PROJ -ECT1.1SANTACRUZ,CA,ANDWASHINGTON,DC:CENTERFORRESEARCHONEDUCATION,DIVERSITY,AND EXCELLENCE).33GINAMARIEGIANZERO,THEROLEOFTHESCHOOLDISTRICTINIMPROVINGEDUCATIONALOPPORTU-NITIESANDOUTCOMESFORADOLESCENTENGLISHLANGUAGELEARNERS337(2010),availableathttp://sdsu-dspace.calstate.edu/xmlui/bitstream/handle/10211.10/486/Gianzero_Gina.pdf?sequence=1at113(lasvisited January 14, 2013).34HAKUTA,ETAL., supra note 12, at 10.35 Butt,4Cal.4that685.ThedenialofELservicestoeligiblestudentsalsoviolatestheCaliforniaEducationCode. See Cal. Educ. Code 440(a).36Castanedav.Pickard,648F.2d989(5thCir.1981).37 Lauv.Nichols,414U.S.563(1974).38Castaneda,648F.2dat1008.39Castaneda,648F.2dat1008([T]heessentialholdingofLau,i.e.,thatschoolsarenotfreetoignoretheneeo limited English speaking children or language assistance to enable them to participate in the instructionalprogram o the district, has now been legislated by Congress, acting pursuant to its power to enorce the our-

teenth amendment, in 1703()).40 20 U.S.C. 1703().41Castaneda,648F.2dat1009.42 See,e.g.,Gomezv.Illinois,811F.2d1030,1043(7thCir.1987).43 The structure o Caliornias system or serving EL students, including the requirement in Proposition 227 thatEL students must be taught in English in most cases, see Cal. Educ. Code 305, and the provision allowing parents to request a change in certain instructional settings, see Cal. Educ. Code 311, does not aect the basiclegal requirement that EL students receive some orm o specialized instruction to address their language acqui-sition needs.44 CalEdFacts, Facts About English Learners in Caliornia, Last Revised March 8, 2012, available at http://www.cde.ca.gov/ds/sd/cb/ceelacts.asp (last visited October 15, 2012).45 CalEdFacts, Facts About English Learners in Caliornia, Last Revised March 8, 2012, available at http://www.cde.ca.gov/ds/sd/cb/ceelacts.asp (last visited October 15, 2012).46Within the past 15 years, the State has announced the creation o an English Learner Integrated Action Team,charged with developing a statewide plan or English learners, an English Learner Support Division, chargedwith aligning English Language Development standards with common academic standards in English/languagearts, the State Seal o Biliteracy, to recognize students with high prociency in one or more languages other thanEnglish, the passage o a bill to assess reclassication standards throughout the state, the passage o a bill todene and recognize the existence o long term English learners, and the State has convened AccountabilityLeadership Institutes or English Learner, Immigrant and Migrant Students. See Caliornia Department o Edu-cation, News Release December 21, 2011, available at http://www.cde.ca.gov/nr/ne/yr11/yr11rel103.asp (lastvisited January 15, 2013); Caliornia Department o Education, News Release,July 5, 2012, available at http://www.cde.ca.gov/nr/ne/yr12/yr12rel68.asp(lastvisitedJanuary15,2013);AlexPadilla,GovernorBrownSigns

Padillas English Learner Reorm Bills, September 27, 2012, available at http://sd20.senate.ca.gov/news/2012-09-27-governor-brown-signs-padilla-s-english-learner-reform-bills(lastvisitedJanuary15,2013);SantaClaraCounty Oce o Education, 13th Annual Accountability Institute, available at http://www.sccoe.org/depts/ell/accountability/ali_13thannual.asp (last visited January 15, 2013). These important steps demonstrate the ex-istence o the capacity to provide guidance, technical assistance and oversight o English learner programs ata statewide level. Although the State has taken steps that acknowledge the importance o this growing studentsubgroup, the persistent existence o the no services issue demonstrates that without concerted statewide actionto ensure that all ELs receive EL instructional services, the problem will continue.


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Additional inoration on te denial o serices to Enlis Learner students

in Caliornia, includin an electronic copy o tis report, can be ound at

www.aclu-sc.or/cases/enlis-learners/.

Parents and students interested in learnin ow students are desinated

as Enlis Learners, te iplications o tat desination, and ow to receie

inoration ro teir local scool district, includin translated aterials,

ay call te ACLU/APALC Enlis Learner otline at 213-977-5225.

www.aclu-sc.orwww.aclunc.or

www.aclusandieo.or

www.apalc.or

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