Settlement Highlights State Obligations to ELLs

Last week, the state of California Department of Education reached a settlement in DJ v. State of California, acknowledging the responsibility of the state to ensure that English Language Learners (ELLs) in all districts have access to effective instructional services to overcome language barriers to content instruction. In response to the ruling, State Superintendent of Public Instruction Tom Torlakson announced he will seek funding for three oversight positions within the California Department of Education (CDE) to make sure each ELL student is receiving quality instruction.

The settlement followed a ruling last fall that the CDE failed to provide language support services to over 20,000 English Language Learner students, as required by state and federal law. While that number represents a small fraction of the approximately 1.5 million ELLs in California, the case highlights the state’s continuing struggle to provide equitable education to ELL students. It should serve as a reminder to state and federal education policymakers that the state with the highest concentration of ELLs in the US still has a long way to go in order to improve student achievement.

While the settlement itself is significant, the case should also be remembered for the amicus curiae brief filed on behalf of English Language Learners by the U.S. Department of Justice’s (DOJ) Civil Rights Division. In their Statement of Interest, the DOJ emphasized that the Equal Educational Opportunities Act (EEOA) requires that all English Language Learners “receive educationally sound and effective instructional services so that they can overcome their language barriers and participate equally in the standard instructional program within a reasonable period of time.” The DOJ stresses that it is responsibility of both the state and the districts to guarantee these services, and the state's responsibility to supervise the districts. In the argument, the DOJ highlights the three-prong framework for assessing whether English Learner (EL) programs comply with the EEOA. Using this framework established in Castañeda v. Pickard (1981), the DOJ argues that courts should consider the following:

1)    Whether the EL program chosen by the state or district is based upon sound educational theory

2)    Whether the EL program is reasonably calculated to implement that theory effectively and is adequately resources to do so (e.g., with teachers qualified to deliver the program)

3)    Whether the education agency evaluates the EL program to determine if it is in fact overcoming EL students’ language barriers and enabling them to achieve parity in the standard instructional program within a reasonable period of time.

For those who engage with English Language Learner policies at the local level, finding a program that meets all three of these requirements is rare. Regarding the first requirement, as scholars learn more about the advantages of bilingualism and the benefits of retaining an English Language Learner’s native language (L1), sound educational theory guides us more towards dual language immersion or transitional bilingual immersion for ELLs. Yet, many states and districts provide English-only support (some mandated by voter referendums), which is one of the least effective strategies in acquiring English.

Regarding the second requirement, California saw massive teacher layoffs during the 2008 recession, followed by a dramatic drop in enrollment in teacher education programs. Seven years later, the state cannot find enough qualified teachers to fill their classrooms, and has been filling positions by offering internships and emergency temporary permits to otherwise unqualified instructors. What percentage of these uncredentialed teachers are entering low-income, high-minority districts? How many of these instructors have even minimal training in best practices for ELL students?

Lastly, the third requirement of the Castañeda framework emphasizes the role of oversight in EL programs. In California’s case, the passage of the Local Control Funding Formula (LCFF) complicates state oversight by giving California school districts flexibility over EL programs. Each district writes their own Local Control and Accountability Plans (LCAP), and in allowing districts to self-monitor, there is little accountability to the state overall regarding specific funding and service details. For example, from an ACLU study that selected 40 LCAPs at random, less than 60 percent included the statutory metrics regarding EL proficiency. This system not only guarantees educational quality discrepancies from district to district, but opens the state of California up to the potential of multiple lawsuits by individual advocacy groups.

The DJ v. State of California case reminds us of both the challenges and the opportunities surrounding ELL access to a quality education. It highlights the Castañeda framework and emphasizes educational theory, implementation, oversight as key components of an equitable education. As the language minority population continues to grow in the United States, the amicus brief in DJ v. State of California is a pertinent reminder to each and every state Department of Education what lawful ELL policy needs to look like, and the obligation each state has to ensure an equal educational opportunity for all of its ELL students.  

This post is part of New America’s Dual Language Learner National Work Group. Click here for more information on this team’s work. To subscribe to the biweekly newsletter, click here, enter your contact information, and select “Education Policy.”"