English Learners (ELs)

Emergency Motion Filed to Force School District of Lancaster to Comply with Court Order to Transfer Immigrant Students from Alternative School

LANCASTER, PA – Three weeks after a federal judge ordered the School District of Lancaster to transfer six refugee students from one of the district’s alternative schools, attorneys for the students filed an emergency motion today asking for protection for all English Language Learner immigrant students aged 17-21 against the district’s continuing practice of delaying the enrollment of older immigrant students and denying them admission to the district’s regular high school.

On August 26, after a week-long trial, Judge Edward Smith of the U.S. District Court for the Eastern District of Pennsylvania ruled that the school district had violated “clear law” by denying or delaying enrollment to older immigrants and by placing them in Phoenix Academy, a privately run alternative school with inadequate English language instruction instead of allowing them to attend the regular high school in the district, McCaskey.  Evidence at trial showed that more than 90 Phoenix students were English Language Learners.  The district has appealed the August 26 ruling and asked the court of appeals to expedite the appeal and to issue an order immediately blocking the injunction while the appeal proceeds.

Although the August 26 preliminary injunction order “encouraged” the district to apply the court’s interpretation of the law to all similarly situated students, plaintiffs’ motion filed today presents evidence that the school district has decided not to do so.  In an email conversation with a staffer at a local refugee resettlement agency cited in today’s filing, a senior school district official stated that, “At this point, transfers [to McCaskey] are being offered to students who were at Phoenix at the time of the [court] order. With all other students, we are proceeding status quo until our appeal is heard.”  Other email chains presented to the court showed that the district had refused transfers to several Phoenix students.

The plaintiffs argue in the emergency motion that “[i]t is now clear that the District has not honored, and has no intention of honoring, the Court’s legal reasoning” with respect to other immigrants, who continue to suffer “irreparable harm” caused by enrollment delays and exclusion from the regular high school. “The potential for harm . . .  is just as real” for other students as it was for the six named plaintiffs, the motion argues.

The plaintiffs’ emergency motion asks the court to certify the lawsuit as a class action while litigation proceeds, expressly extend the injunction to cover similarly situated immigrant English Language Learners so they can attend McCaskey, and order the district to share with plaintiffs’ lawyers information about other affected students.

The case is Issa v. School District of Lancaster. The students are being represented by Walczak, Molly Tack-Hooper, and Michelin Cahill of the ACLU of Pennsylvania; Maura McInerney, Kristina Moon, and Alex Dutton of the Education Law Center; Kathleen Mullen, Thomas A. Schmidt, III, Megan Morley, Katrina Long, Kaitlin M. Gurney, and Hedya Aryani at the law firm of Pepper Hamilton LLC; and Seth Kreimer of the University of Pennsylvania Law School. More information about the case, including a copy of the complaint and today’s motion, can be found at www.aclupa.org/issa.

More information about plaintiffs’ counsel can be found at:

www.aclupa.org

www.elc-pa.org

www.pepperlaw.com

ACLU and Education Law Center Sue School District of Lancaster for Illegally Denying Immigrant Youth an Education

July 19, 2016

LANCASTER, PA – The ACLU of Pennsylvania, the Education Law Center, and pro bono counsel Pepper Hamilton LLP filed a federal lawsuit today alleging that the School District of Lancaster (SDOL) has been illegally refusing to enroll older immigrant students with limited English proficiency (LEP) or diverting them to an inferior, privately operated disciplinary school, rather than allowing them to attend the district’s regular high school. The plaintiffs include six refugees aged 17-21 from Somalia, Sudan, Democratic Republic of Congo, and Burma who have fled war, violence, and persecution in their native countries. Continue reading →

What parents of special ed and ELL students should know about testing (Interview)

An interview with Maura McInerney of the Education Law Center

Dec. 15, 2015 – Philadelphia Public School Notebook – by Brianna Spause

The Notebook interviewed Maura McInerney, senior staff attorney for the Education Law Center, in November about what parents need to know regarding testing of special education students and English Language Learners. A shorter version of this interview appears in our Dec. 2015-Jan. 2016 print edition.

 

Notebook: What do parents of English Language Learners and Special Education students need to know regarding standardized testing?

Maura McInerney: For both sets of parents, it’s important for them to know what their rights are. Students with disabilities and English language learners [ELLs] are entitled to accommodations on standardized tests. It’s important to discuss these issues with their schools well in advance of when the testing is taking place.

For students with disabilities, the decision of what accommodations will be provided is made by the [Individualized Education Program] IEP team. That includes whether the child will take the test or not, and what type of test the child will take. For example, there’s a PSSA, but there’s also something called the PASA, which is available for students with disabilities.

In the context of the IEP plan, there is a set of decisions about accommodations in respect to the testing itself and what will the environment look like for that student. There are many different types of accommodations.

Many students with disabilities get minimal accommodations. The most popular one is probably extended time – when in fact, they have a right to many more. They can have the test read to them. Instead of writing answers, it can be audio- or videotaped. Those issues need to be discussed with families.

With students who are ELL, many times the issue of accommodating standardized tests doesn’t even arise. You don’t have that meeting as you would with an IEP team to discuss it. Those issues need to be raised with the student’s teacher – particularly with the English as a Second Language teacher, who often knows the children very well.

For ELLs, allowable accommodations, for example, are qualified interpreters and sight translators for the Math PSSA and the Keystone Algebra I and the science tests – both the PSSA and the Biology.

Unfortunately, due to budget cuts in the School District, accommodations are rarely available. Often, it doesn’t come up.

All of these accommodations are voluntary, none of them are mandatory for ELL.  In other words, while providing accommodations for ELLs is mandatory, the specific type of modification to be provided is left to the discretion of schools.  It’s a significant issue that needs to be raised with families.

For children who have chronic conditions like diabetes or asthma, they are also entitled to accommodations in testing.

 

Notebook: What are some of the challenges ELL and special ed students face when taking these tests?

McInerney: I think that the most common challenge that I hear is the anxiety that it causes for children with emotional support needs or children who are ELL. I know that some ESOL [English as a Second Language] teachers have said that it can sometimes erode the child’s trust to be given this exam. They may not be able to do it [or] feel like a failure. It sometimes can undermine their trust in the system and their trust in the teacher, which is obviously something we want to sure up.

Some challenges [with special ed students] can be addressed by ensuring that IEP teams are discussing the options that are available and in place. I think it’s a matter of expanding the accommodations for children who are ELL, and quite honestly, I would consider different testing for them and to have the input of teachers in developing those tests.

ELL students are tested in their 7th-or 8th-grade class. These children, especially if this is their first year of ESOL instruction, are used to being with their ESOL teachers. They have more of a trust relationship with that person. One of the things that would be helpful [is] if they could be tested in that environment. If they have a teacher there that can assist them that might be a less anxiety producing experience for them.

It’s also the fact that we test kids who may have just come into this country. If they come after April 11, they will be tested in reading,  math, science, with absolutely no English language at all; no proficiency level.

 

Notebook: How well are these students performing on standardized exams?

McInerney: We know that almost 65 percent of ELL in Philadelphia scored below basic on the PSSA. Actually 69.12 percent of students who receive special education services score below basic. A lot of instructors have said that it doesn’t really make sense for them to take some of these tests because they also have to take the ACCESS tests which measure proficiency in language. The ACCESS tests cover four content areas of social studies, science, math and English. They look at listening, speaking, reading and writing proficiency across those domains and content areas.There’s a lot of problems with the ACCESS test but those are the proficiency tests that they take.

In addition, they are also taking the PSSAs and the Keystones. There are certainly benefits to having at-risk student populations take standardized tests because we want to ensure accountability. We want to ensure that schools are paying attention to these populations, knowing what their reading and math level is. I know from participating in IEP meetings that I certainly use that gauge to say, are they making progress towards their goals?

The important thing is to provide effective and individualized accommodations for many of these students. For example, if you have an ELL who has just come to this country, is at the beginning level, this child is asked to take a test in a language that they don’t know at all. Although they are allowed to essentially wait a year to take the reading test they are required to take the science [and] mathematics tests. In those instances, that child is sitting in a classroom that is providing instruction in English, and they are just learning the language. The idea that they would be able to do well on these tests is really quite astounding.

I think that we need to take a look at who is being tested [and] at what level does it make sense, especially with respect to the beginners and those who are just entering. And then, are those children getting the accommodations they need in order to get an accurate sense of whether they’re learning the material.

 

Notebook: What challenges does using the Keystone exams as a graduation requirement present to ELL and special ed students?

McInerney: It’s a huge obstacle [because] once we impose it as a high-stakes test, every child has to pass it. There are varied options to the Keystones. There is a project-based option, but that is also a standardized test. It is not that different than the Keystone exam. We believe in accountability and we think it is very important to ensure that students who are graduating from high school have learned what they need to go on to higher ed and to participate in the work force. Those are very important goals that we want to highlight. However, if we are going to impose these Keystone exams, we need to provide sufficient resources for our students to pass them.

If we are imposing high stakes tests, we need to ensure that there are interpreters and translators, that there is sufficient instruction time to ESOL students, which is a huge issue in the School District right now. We now have the bare-bones schools in many instances that are not able to provide the resources to bring these very at-risk students up to where they need to be. I think to test them in a system where you haven’t provided adequate resources to enable them to graduate is a huge problem.

 

Notebook: Do you think that using standardized tests is an effective way to measure the academic progress of these students?

McInerney: I think that with respect to some students, it can be a good, accurate, objective measure, but for students who really don’t receive the accommodations they need, who don’t have an individualized plan for how they’re going to take these tests, I think that is sometimes is not an accurate measure.

I have difficulty saying that for all children with disabilities, it’s not accurate. I think for some students it is and for other students, it’s not. I think it depends on how the test is administered. There are cohorts of students for whom particular standardized tests are not appropriate. For certain students who may have disabilities there may be certain tests that do not make sense for them to take the test. That’s a decision that needs to be made by the IEP team.

We certainly encourage as much information as we can gather about at-risk populations because we know that having that objective measure is important to make sure we’re not being left behind. There are different ways to look at that issue and to ensure that we have some objective measure of how they’re doing. We want to ensure accountability, but we really need to take a step back and look at the way that we’re doing it. At the current time, we have a one-size-fits-all universal approach that I don’t think is valid for all students.

 

Notebook: What measures do you think the the state could take to make sure that the testing is fair to ELL and Special Ed students?

McInerney: In both instances, and with respect to ELL, there are no mandatory accommodations at all for these students. I think that is something we need to look at. In addition, I think that we need to look at whether this test makes sense for all ELL students. I think we need to take a step back and critically analyze whether it makes sense to give it to all students in the same way. I think that for some students it does not make sense. Right now we have very vague accommodations that are available to ELLs. Everywhere you look it says all of this is voluntary, none of this is mandatory. I think we’re putting all ELL students at a distinct disadvantage.

In addition, we have a deeper problem that we have very little state standards embedded in law with respects to what ELL students are entitled to. We don’t state the minimum level of ESOL instruction that should be provided, where other states do. We shouldn’t just be looking at standardized testing in a vacuum, we should look at it in the broader view of what kind of education are we providing to our students. I think that certainly the state needs to look very  critically at whether they are providing the right test to the right students with adequate and individualized accommodations available to all.

It’s a matter of funding sometimes. In a high wealth school district, they may have accommodations that are simply not available to students in the School District of Philadelphia for whom that standardized test may have a more dire consequence. I think with children with disabilities it’s similar. There needs to be more guidance with respect to what accommodations should be made to certain students.

 

Brianna Spause is an intern at the Notebook.

Education Law Center Statement on the Every Student Succeeds Act

FOR IMMEDIATE RELEASE

December 4, 2015

Contact: Ian Gavigan, Education Law Center-PA, 267-825-7713, [email protected]

Education Law Center Statement on the Every Student Succeeds Act

“Since its passage in 1965, the Elementary and Secondary Education Act (ESEA) has been a critically important federal law for ensuring educational equity and protecting the civil rights of the most at-risk students. In several ways the proposed reauthorization, the Every Student Succeeds Act (ESSA), represents an improvement over existing legislation and reaffirms the ESEA’s crucial mission ‘to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education.’ However, the current bill could do much more to protect the rights of the country’s most vulnerable students,” said Deborah Gordon Klehr, executive director of the Education Law Center. Continue reading →

ELC Provides Comments on Proposed Revisions to the Head Start Performance Standards

The Education Law Center continues to press to ensure all young children have access to early learning programs. On September 17, 2015 ELC commented on the proposed revisions to the Head Start Performance Standards. Head Start programs promote health, education, and self-sufficiency for low-income children and their families.

The proposed regulations make several positive steps towards ensuring that Head Start programs meet the needs of educationally vulnerable children. In our comments, ELC identifies additional areas where the proposed language could be strengthened to provide clearer guidance. In particular, ELC’s submission provides suggestions on how to better serve and meet the needs of young children experiencing homelessness, children in foster care, and children and families with limited English proficiency. Our comments also voice support for the proposed regulations’ efforts to reduce the use of suspensions and expulsions.

Read ELC’s complete comments.

Civil and Disability Rights Activists Watch Philadelphia Class Action Suit Closely

September 1, 2015 – Nonprofit Quarterly (blog) – by Patricia Schaefer

Barbara Galarza, a mother with a daughter in the School District of Philadelphia, knew her daughter had learning issues. In 2013, the charter school she had attended since 2010 evaluated her, giving her a classification of ADHD and an individualized education plan (IEP) that would serve as a roadmap for her educational goals through the coming year.

Before she began receiving services, however, she had to transfer back into a public school in the district, which decided to conduct its own evaluation. Ms. Galarza, who has limited English skills, signed a bilingual consent form. What she did not realize at the time was that unlike the previous evaluation, which had been conducted in her daughter’s first language, Spanish, the district’s evaluation was conducted with a non-bilingual psychologist.

When the re-evaluation report was sent to Ms. Galarza, it was entirely in English. Thinking that it was the same diagnosis and recommendation as the previous evaluation, which she had read and understood thoroughly, she went in to a meeting with her daughter’s high school psychologist, a meeting that took place entirely in English. Expecting to talk about her daughter’s ADHD, what she found out instead was that the re-evaluation classified her daughter with an intellectual disability, a significantly more involved diagnosis requiring an entirely different set of services. Moreover, according to what she told writer Regina Medina of the Philadelphia Inquirer, the psychologist went on to reassure Ms. Galarza that “it’s better this way,” because her daughter would “get a lot more benefits.”

Ms. Galarza is now one of the lead plaintiffs in a federal class action lawsuit alleging that thousands of similarly situated families were denied the opportunity to fully participate in the special education process on behalf of their children because of limited English language skills. As one of the plaintiffs’ representatives, attorney Michael Churchill with the Public Interest Law Center described Ms. Galarza’s experience: “She has never seen the document, has no way of comprehending what the full scope of the meeting is. And she breaks out in tears at this information that is being given to her for the very first time.”

The issue is not an isolated or new one. According to the complaint, the School District of Philadelphia routinely refuses to provide parents with translated documents in a timely manner or provide sufficient translation, effectively preventing them from making informed decisions about their children’s education. Another of the plaintiffs’ representatives, Maura McInerney of the Education Law Center, claims the problem has persisted for many years. “After years of trying to address this issue with the District, we felt that the matter needed to be addressed by the courts.”

More than 70 percent of the nearly 26,000 families in the school district who do not speak English as a first language have requested documents in their native language. According to the complaint, in the 2013-14 school year, there were close to 2,000 students with IEPs whose home language was not English.

In 1975, Congress passed federal legislation that came to be known as the Individuals with Disabilities Act (IDEA). The law, which has been revised many times over the years, guarantees a free and appropriate education to all students with disabilities, ages 3–21. It specifically delineates the rights of children with disabilities—and their parents—in the special education IEP process, requiring that all decisions relative to a child’s evaluation, education plan and placement be made with the parents’ meaningful involvement. The law lays out procedural safeguards to ensure parent involvement, which include explicit requirements that all relevant information be presented to parents in their native language.

What this means in Ms. Galarza’s case is that, by law, she had the right to receive her daughter’s re-evaluation in Spanish in a sufficient amount of time (at least ten days) prior to an in-person meeting to discuss it. In her meeting with the school psychologist, she had a right to an interpreter so that she could have a meaningful and productive conversation about her daughter’s new diagnosis and IEP.

Another of the lead plaintiffs, “A.G.,” was born in the Dominican Republic and was enrolled in the ninth grade there when his mother passed away suddenly. After moving to Philadelphia to live with his extended family, he was placed in ninth grade for two more years until his aunt requested that he be evaluated for special education services. Despite requesting language assistance (and despite A.G.’s enrollment in ESL classes), the District failed to provide the appropriate documents in Spanish. Even after his aunt filed a due process complaint, all subsequent documents were barely translated and after receiving an IEP with only the section headings written in Spanish, she had nothing to read at the meeting or take home to review.

The special education process can be an arduous journey for families in the best of circumstances. It is a complex, multi-tiered process, requiring numerous IEP, placement and follow-up meetings with school staff, psychologists, therapists, and teachers. While Ms. Galarza and A.G.’s aunt, Margarita Peralta, had the knowledge and self-assurance to advocate for their children, despite the language barrier, many others in their situations are unaware of the laws protecting them or are too fearful to ask for what they need.

“Federal disability and civil rights laws mandate meaningful participation by parents in the special education process,” says Attorney McInerny. “When parents are shut out, students suffer and are denied access to critical services they need to make progress. This is why our disability laws are so clear on the obligations of schools to provide language assistance.”

Ms. Galarza is more adamant. Reflecting back on the school psychologist’s insistence that her daughter’s new diagnosis was “better,” she said, “Nobody would want news like that, it’s not logical. For me that’s not normal, to be happy to get more benefits.”

http://nonprofitquarterly.org/2015/09/01/civil-and-disability-rights-activists-watch-philadelphia-class-action-suit-closely/

Release: Lawsuit Challenges School District of Philadelphia’s Failure to Translate Documents and Interpret for Parents with Limited English Proficiency and their Children with Disabilities

 

Lawsuit Challenges School District of Philadelphia’s Failure to Translate Documents and Interpret for Parents with Limited English Proficiency and their Children with Disabilities
August 21, 2015

Philadelphia, Pa. – A federal class action lawsuit filed Friday alleges that thousands of parents and their children are illegally denied the opportunity to participate in the special education process due to the fact that they don’t understand or speak English. The complaint alleges that the School District of Philadelphia refuses to sufficiently interpret or provide parents with translated documents in a timely manner, preventing them from participating in meetings and making informed decisions regarding educational placements and services. Continue reading →

PA Education Budget: Funding for a Few

July 8, 2013 – The Pennsylvania education budget adopted June 30, 2013, fails to address underlying, systemic inequities in the state’s public school funding, locks in the massive 2011 education funding cuts, and boosts funding to a few select districts, according to an Education Law Center analysis.

“The General Assembly and the Governor have delivered education dollars in a way that cherry-picks a small group of school districts for additional funding, but ignores the remaining 479 school districts,” said Rhonda Brownstein, Education Law Center Executive Director.

The legislature identified 21 school districts for additional state funding. Some of these districts have high numbers of students learning English, some have high numbers of students in poverty, and some are fast-growing districts. But other school districts on the list received additional funding based on particularly narrow and unique characteristics rarely used in comprehensive education funding formulas, according to the Law Center.

“Poverty, number of students learning English, rapid growth — these are all important student and district factors that should be applied in a fair, accurate, and transparent education funding formula,” said Brownstein. “What’s unfortunate is that the General Assembly and the Governor have chosen to apply these factors to only a handful of districts. The impact for schools and students throughout the Commonwealth could have been greatly improved if our legislative leaders had simply used these factors to distribute education dollars to all 500 school districts,” she added.

For example, only five school districts received additional funding based on the “English Language Learner Supplement” in the current budget, yet 412 other school districts in the state have students learning English.

“It’s a good sign that our legislative leaders have recognized there are different costs associated with different types of students,” said Brownstein. “The students in these five districts should receive the necessary resources to meet state academic standards — but so should English language learners in all of our other school districts,” she added.

Of the 21 specially selected districts, eight have now had their 2011 funding cuts restored. There are 490 other school districts throughout the state that still have not. (Two school districts — Chester-Upland and Duquesne — received funding restorations last year as part of a state-takeover plan.)

A March 2013 Law Center report, “Funding, Formulas and Fairness,” examines public education funding formulas in each of the 50 states.

Pennsylvania remains one of only three states in the nation without a fair, accurate, and transparent education funding formula, according to the report.

The report shows most other states use funding formulas to calculate and distribute education dollars. The formulas share common components, such as an accurate per-student base cost, different funding variables that recognize student differences in all schools, and a funding goal that the state works towards in order to ensure adequate funding for all students.

Pennsylvania abandoned these basic principles in its 2011-12 budget and officially amended its education funding formula out of use in 2012.

“Pennsylvania school districts must now operate in fiscal limbo every year, wondering if they’ll be one of the chosen school districts receiving special allocations from Harrisburg,” said Brownstein. “It’s time for that to change. It’s time for Pennsylvania to become a national leader in the development and implementation of a sound, comprehensive education funding formula that addresses real classroom costs and meets real student needs in all of our schools.”

View the calculations for the various funding supplements:
ELC_BudgetAnalysis_2013_fundingsupplements

###

The Education Law Center is a non-profit legal advocacy organization dedicated to ensuring that all of Pennsylvania’s children have access to a quality public education.

CONTACT:
Brett Schaeffer
Education Law Center
Office: 215-238-6970 ext. 334
Mobile: 215-519-6522
[email protected]