July 24, 2014 | The American Civil Liberties Union of Southern California has found an ally in the U.S. Department of Justice for its lawsuit charging that the state abdicated its obligation to ensure all students classified as English learners get extra instructional services to become fluent in English. The lawsuit, filed in April 2013, is set for a one-day trial next week in Los Angeles County Superior Court.
The state Department of Education and the State Board of Education “have the duty, the data and the tools” to meet their responsibility under federal law, Jocelyn Samuels, Acting Acting Assistant Attorney General for Civil Rights at the U.S. Department of Justice, wrote in a brief for the case filed last week. “California’s (English learner) students cannot afford to wait any longer.”
The ACLU claims the state has done nothing to force school districts to provide appropriate services for the approximately 20,000 English learners who, according to a 2010-11 survey of school districts, are receiving no services. Those services include materials in the student’s primary language, parallel instruction for parts of the day taught by bilingual teachers, or a specialized teaching approach called Specially Designed Academic Instruction In English, used for teaching academic content in science or social studies.
The 20,000 students comprise less than 2 percent of the state’s 1.4 million English learners, but those numbers are self-reported by districts and likely represent “the tip of the iceberg,” ACLU Chief Counsel Mark Rosenbaum said.
The ACLU says the state is violating the federal Equal Education Opportunities Act, which requires the state to meet the language needs of all English learners, as well as the state Constitutional guarantee that all students are equally entitled to an opportunity for an education. The state education department and the state board “have washed their hands of ensuring district compliance, even though the students who have been denied service are disproportionately ethnic minorities and many from low income families lacking the resources and opportunities to otherwise become fluent” in English, the suit says.
The 20,000 students comprise less than 2 percent of the state’s 1.4 million English learners, but those numbers are self-reported by districts and likely represent “the tip of the iceberg” of students not getting help, ACLU Chief Counsel Mark Rosenbaum said.
The 2011 survey found that the students were in about a quarter of the state’s 1,000 districts. The biggest violators among those districts included Salinas Union High School District (43 percent of 3,784 English learners); Grossmont Union High School District in San Diego County (41 percent of 3,368 English learners) and William S. Hart Union High School District (54 percent of 2,118 English learners) in Los Angeles County.
The state’s initial response was that more than 98 percent of students were getting services; parents of the remaining students should file complaints with their districts and not with the state. The Department of Education subsequently asked the districts to reexamine the information in the surveys they provided. Of the 40 percent of districts that responded, some said that some of the students in fact had received specialized services and that other students were taught by teachers who were certified to teach English learners. The Department of Justice brief responded that federal law requires districts to provide services in addition to placing a certified teacher in the classroom. The brief said that the state did nothing further to force districts to provide help and didn’t follow up with the 60 percent of districts that didn’t respond to the request for more information.
In a statement issued last week, state Department of Education spokeswoman Pam Slater said the state disagrees with the assertions in the lawsuit and the brief by the federal Department of Justice. “Once the (Department of Justice) takes the time to fully review the extensive documentation submitted by the (California Department of Education) over the past seven months, it will realize that the State takes seriously its obligation to monitor and ensure the provision of services to all English Learner Students,” she wrote.
The federal government funds services for English learners through Title III – about $105 per student. The state audits a small percentage of districts annually, which it says meets its obligation to monitor federal funding – a position that the Department of Justice and the ACLU dispute.
The ACLU filed the lawsuit months before the Legislature passed the Local Control Funding Formula, which increased existing state funding for low-income and English learner students to about $1,500 per student next year (20 percent above the base funding per student) plus extra dollars when low-income students and English learners are heavily concentrated in a district. The new funding formula also shifts financial control from the state to local districts, which are required to complete an extensive three-year Local Control and Accountability Plan. The LCAPs must detail what districts will do to improve services for low-income and English-learner students and how they will spend the extra money those students generate under the new system.
Districts approved their first LCAPs last month, so it is too soon to determine if the process will result in more and better services for all English learners. However, Rosenbaum said that the shift from state to local control and the adoption of a new funding system does not relieve the state of its responsibilities under the state Constitution.
The ACLU made a similar argument in another lawsuit against the state that it and the nonprofit law firm Public Counsel filed in late May on behalf of students in seven high-poverty, low-performing elementary, middle and high schools. In that case, the ACLU alleged that the state did nothing to fix chronic problems that denied students sufficient learning time. The problems included a heavy reliance on substitute teachers, course misassignments and weeks-long delays in class scheduling, a shortage of counselors and insufficient college-credit courses. Students who for years suffered the consequences were assigned to remedial classes, falling further behind, the lawsuit said.
The state board and the California Department of Education have not formally responded yet to the lawsuit.