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ACLU and R.I. Legal Services Appeal Decision Undermining Rights of English Language Learners

Posted: April 11, 2019|Category: Discrimination Racial/Ethnic Discrimination Rights of the Disabled Immigration Students' Rights Youth Rights

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ACLU and Rhode Island Legal Services Appeal Decision
Undermining the Rights of English Language Learners

Rhode Island Legal Services and the American Civil Liberties Union of Rhode Island have appealed a state Commissioner of Education ruling upholding the Providence School District’s method of providing services to English Language Learners (EL), but which the two groups claim clearly violates federal and state law and significantly shortchanges the educational rights of EL students. In essence, the groups charge, RIDE has interpreted the state’s regulations governing EL instruction to provide less support to those students than federal law itself requires.

Long concerned about the inadequate educational services provided to English Language Learners in the state, RILS and the ACLU-RI filed an administrative complaint with the Rhode Island Department of Education (RIDE) in April of 2016 on behalf of parents of English Language Learners in Providence whose children had been provided with few or no direct services by a certified ESL teacher. Instead, Providence claimed that these children were being adequately served by general and special educators who consult with an EL certified teacher as infrequently as once every two months and for no specified amount of time. This “Consultation” model required no additional training for the non-certified teachers, and its approval by RIDE forms the basis for the RILS/ACLU-RI appeal.

Ironically, the U.S. Department of Justice (DOJ) last year concluded that  Providence’s Consultation model was invalid under federal laws.  In an Agreement signed between DOJ and Providence in August 2018, Providence agreed to stop using that model because it is “educationally unsound,” and agreed that all EL services would be provided by EL certified or endorsed personnel. However, the agreement is enforceable for only a limited period of time and did not include any provisions for compensatory services.

Notwithstanding that agreement and the DOJ’s findings, state Education Commissioner Ken Wagner last month approved a RIDE hearing officer decision in the RILS/ACLU complaint that upheld the Consultation model as valid under state regulations. In an appeal brief filed this week with the Council on Elementary and Secondary Education, RILS attorney Veronika Kot and ACLU of RI volunteer attorney Ellen Saideman argue that RIDE’s decision is contrary to state law and regulations, as well as the federal laws the state regulations are designed to implement.

In reaching his conclusion that the Providence EL program was lawful, the RIDE hearing officer called the DOJ agreement irrelevant to interpreting Rhode Island State EL regulations. As the RILS/ACLU-RI brief notes: “In essence, the Hearing Officer allowed, under state law, what had just been prohibited under the federal laws which the state law purports to implement.”

Separately, the brief also argues that the Consultation model “overtly permits discrimination against children with disabilities by denying them the ESL services provided to students without disabilities.” Specifically, children with disabilities who are in a self-contained setting “receive absolutely no direct ESL services from an ESL teacher, regardless of whether they know any English at all,” while “general education children within the two lowest levels of English Language Proficiency” receive at least some direct ESL teacher instruction every day.

The brief calls on the Council, which oversees RIDE, to reverse the Commissioner’s ruling, find that Providence’s plan is unlawful, and order compensatory services to underserved EL students.

Earlier this week, the Providence Journal ran a series of articles that concluded that English Language Learners “are the fastest-growing population in Rhode Island’s schools, yet the state and the schools are failing these students.” RILS and ACLU-RI today said that the Commissioner’s ruling, unless overturned, will perpetuate those failures.

Rhode Island Legal Services attorney Veronika Kot said today: “ELs in Rhode Island are lagging academically, and national studies find that Latino children in RI rank second to last in the country on indicators of likely success, which include academic achievement. It is critical, therefore, that their rights under both state and federal laws be energetically enforced by the state agency charged with doing so, so they can have equal access to education.”  

ACLU of RI volunteer attorney Ellen Saideman added, “We are hopeful that the Council will grant our appeal and require Providence to use educationally sound methods for serving EL students.  We are seeking compensatory services that can assist students in becoming proficient in English so they can achieve their full potential.” 

ACLU of RI executive director Steven Brown said: “In light of the acknowledged educational crisis in teaching EL students in the state, it is shocking that our state’s regulations on the topic have been interpreted as being weaker than what federal law requires. The provision of ineffective and watered- down services to EL students by Providence or any other school district is, in both the short and long run, a recipe for disaster.”

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