QUESTIONS THAT MAY BE RAISED BY PROPOSITION 227
U.S. Department of Education
Office for Civil Rights
General
Q1: Under Federal law, can a district place LEP students in mainstream classes without providing any other assistance?
A1: No. In 1974, in Lau v. Nichols, the Supreme Court ruled that placing LEP students in a regular program taught in English, when they were unable to participate meaningfully in that program because of their limited English proficiency, constituted discrimination on the basis of national origin in violation of Title VI of the Civil Rights Act. The Department's May 25, 1970 Memorandum directs school districts to take "affirmative steps to rectify language deficiencies in order to open its instructional program to these students." The May 1970 Memorandum was adopted by the Supreme Court in Lau v. Nichols. Similarly, the Equal Educational Opportunity Act, which is administered by the Department of Justice, requires public educational agencies to take appropriate action to overcome language barriers that impede student participation in the instructional program.
Q2: Does Proposition 227 relieve districts of their civil rights obligations?
A2: No. Proposition 227 does not relieve school districts of any of their obligation to comply with federal civil rights requirements. These requirements afford recipients of federal funds considerable latitude in selecting an instructional approach, so long as it effectively addresses the educational needs of limited English proficient children.
Q3: If a school district is implementing an OCR-approved plan, is it exempt from the requirements of Proposition 227?
A3: No. School districts in California and in other states must comply with applicable state laws in a way that does not contradict federal legal requirements.
Q4: What is the status of district resolution plans with OCR?
A4: OCR will continue to work closely with California educators at the state and local levels to assist them in maintaining educational programs for LEP students that comply with Title VI. If school districts that are operating under OCR-approved plans determine that those plans need to be modified to comply with Proposition 227, they should contact the San Francisco OCR Enforcement Office. OCR is prepared to provide technical assistance to school districts to help them draft plan modifications that are consistent with Title VI.
Q5: Will the Department of Justice or the Department of Education play a role in any litigation challenging Proposition 227 in federal or state court?
A5: The U.S. Departments of Education and Justice have not, at this time, joined in any legal challenges to Proposition 227. However, we will continue to monitor how 227 is implemented and whether children with limited English proficiency are provided realistic opportunities to succeed academically, consistent with federal civil rights requirements.
Proposition 227 Specific
Q1: Would a one year limit on services to LEP students be permissible under federal law?
A1: Lau requires that LEP students who need alternative language instruction in order to receive meaningful access to the district's mainstream educational program, be provided those services until an individualized determination is made that a student no longer needs the services in order to participate meaningfully in the District's educational program. Some children may reach this level of English proficiency within one year. However, children learn at different speeds, and districts cannot limit to one year alternative services for LEP students who are not yet able to participate meaningfully in the district's programs.
Q2: If the parent of a LEP student opts that student out of alternative language instruction, what is the district's responsibility to that student?
A2: Lau establishes a district's obligation to provide LEP students with meaningful access to the educational program. When a parent declines participation in a particular formal language instruction program, the district must continue to ensure that the student has an equal opportunity to have his or her English language and academic needs met. Districts can meet this obligation in a variety of ways, for example, by providing adequate training to classroom teachers on second language acquisition and English language development and by monitoring the educational progress of the student.
Q3: Can a district focus its instruction for LEP students on English acquisition for a year, and limit its instruction in academic content areas during that time?
A3: Under the 5th Circuit's decision in Casta�eda v. Pickard districts are not precluded from adopting programs which temporarily emphasize English over other subjects, as long as the programs are recognized as sound by some educational experts. The Casta�eda court stated that districts can make the determination as to whether they want to address the dual tasks of language and academic instruction simultaneously, by implementing a program designed to keep LEP students at grade level by providing language services to make the academic content areas accessible, or to address the tasks in sequence, by focusing first on the development of English language skills and then later providing students with compensatory and supplemental education to remedy deficiencies in other content areas that they may develop during this period.
Q4. How should a district determine when a LEP student is ready to exit an alternative language program?
A4: LEP students must be provided with alternative services until they are proficient enough to participate meaningfully in the regular program. Under OCR's long-standing Lau guidance, when deciding whether a student can participate meaningfully, recipients should consider such factors as the students' ability to keep up with their non-LEP peers in the regular education program and their ability to participate successfully in essentially all aspects of the District's curriculum without the use of adapted or simplified English materials.
Q5: If districts modify their programs for serving LEP students in light of Proposition 227, must they evaluate the programs they implement?
A5: Under the 5th Circuit=s decision in Casta�eda v. Pickard, districts are required to evaluate their programs. If, after a legitimate trial period, the program is not successful in helping students overcome language barriers, the district may need to modify its program.
Q6: Proposition 227 expressly permits districts to place in the same classroom English learners of different ages whose degree of English proficiency is similar. Does this violate federal law?
A6: While this is not a violation of federal law, it does raise concerns about its implementation because school districts generally place students in classrooms with others who are similar in age, in order to address their common age-related developmental and social needs. If a district places LEP students of different ages in the same classroom for a limited time and for the purpose of English language instruction, Casta�eda makes clear that districts are responsible for ensuring that LEP students receive effective and appropriate content instruction at appropriate academic levels.
U.S. Department of Education, Office for Civil Rights
June 10, 1998