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North Carolina Title III Application 2011-2012 Appendices
Contents
I Language Instructional Program Types in North Carolina Public Schools p 2
II SAMPLE North Carolina Home Language Survey Form p 3
III North Carolina Home Language Survey Process p 4 - 8
IV SBE Policy GCS-K-000 p 9 - 11
V Selected OCR Guidance p 12 - 18
VI SAMPLE Budget Format p 19
VII PRC 104 Federal Allotment Formula p 20 - 21
VIII PRC 111 Federal Allotment Formula p 22 - 23
IX PRC 054 State Allotment Formula p 24
X Supplement not Supplant Final Letter 10-2-08_2 p 25 ndash 28
Also refer to the No Child Left Behind Act of 2001 Elementary amp Secondary Education Title III mdash Language Instruction for Limited English Proficient and Immigrant Students at httpwww2edgovpolicyelseclegesea02pg39html
NC Title III Application 2011-2012 Appendices Page 1 of 28
APPENDIX I Language Instructional Program Types in North Carolina Public Schools March 2011
Name of Approach
Instructional Language(s)
Key Features Notes
Programs that utilize two languages for instruction Dual Language Developmental Bilingual Program (Additive Bilingualism)
English and studentrsquos heritage language
Designed to help non-English speakers learn English as well as maintain and improve their native or heritage language skills
Students become bilingual biliterate and bicultural in a way that honors their need to simultaneously identify and communicate with their heritage or home culture and with the mainstream culture they live and will work in
Dual Language Two-Way Immersion Program (Additive Bilingualism)
English and another language
Comprised of approximately 50 native English speakers and 50 native speakers of the target language Both groups of students become bilingual biliterate and bicultural
Content instruction is provided both in English and in the target language
Transitional Bilingual Education Program (Subtractive Bilingualism)
focus on studentrsquos primary (non-English) language
Presented in the ELLs native language for at least 2 or 3 years after which time ELLs receive all-English instruction
Primary purpose is to facilitate studentsrsquo transition to an all-English instructional program while receiving academic subject instruction in the native language to the extent necessary
Heritage Language Program
focus on studentrsquos primary (non-English) language
Typically targets non-native English speakers with weak literacy skills in first language
The goal is building literacy in two languages
English Language Instructional Programs for English [as a Second] Language Learners [ELLs] Extra content support in English and the native language may also occur
English as a Second Language [ESL]
English A program of techniques methodology and special curriculum designed to teach English reading writing listening and speaking skills to ELLs
ESL instruction is in English with little use of studentsrsquo native languages This may occur as a pull-out session or a scheduled class time
Content-based ESL English Uses instructional materials learning tasks and classroom techniques from academic content areas as the vehicle for developing language content cognitive and study skills
Instruction is in English with little use of studentsrsquo native languages This may occur as a pull-out session or a scheduled class time
Sheltered Instruction Sheltered Instruction Observation Protocol
English Adapts academic instruction in English to make it understandable to LEP students
Can be implemented by content and ESL teachers in English language arts mathematics science social studies and other subjects
Newcomer Services English
Separate relatively self-contained educational interventions to meet the academic and transitional needs of newly- arrived immigrants
Students usually attend these programs for a very limited time before they enter an ESL program Services may be provided at a special site or may be provided at the school site
ESL Co-Teaching
English Shared collaborative teacher planning time so that teachers that can implement strategies that integrate language acquisition literacy and academic content at the same time
Caution Co-Teaching is NOT supplying an ESL teacher who enters the class and assists individual students Requires professional development for both teachers so that grade level and developmentally appropriate teaching from both the ESL and content teacher occurs
Service Delivery Types1
Direct Appropriate consistent face-to-face service Consultative Service delivery varies as deemed necessary based on formalized contacts with teachers of ELLs and other
staff including (but not restricted to) instructional modifications state testing accommodations periodic face-to-face instruction or counseling
1 All ELLs must have an LEP Plan including proficiency level descriptions instructional modifications and state test accommodations
NC Title III Application 2011-2012 Appendices Page 2 of 28
APPENDIX II SAMPLE North Carolina Home Language Survey Form August 2008 httpeslncwiseowlorgresourcesdocuments to download a copy
Directions 1 Parentsguardians of all new students (including preschool and Kindergarten) complete this form at the time of enrollment and record all information requested Provide interpreting services whenever necessary 2 Ensure that all questions on the form are completed Determine which ESL Program staff will review the responses interview the parent as necessary andor observe the student to determine the home language If the parent lists more than one language other than English the reviewer must determine which one is the childrsquos home language for data collection purposes and document it on this form 3 If it is determined that a studentrsquos home language is other than English administer the English language proficiency test Follow your protocol to collect and document the studentrsquos scores 4 Place the original form in the studentrsquos cumulative folder
Student Information First Name Last Name
Country of Birth Date first enrolled in any US school (Private or Public but not PreK) Indicate if the student left the US for a school year(s)
Date of Birth
Current School School Enrollment Date Current Grade
Questions for ParentsGuardians Parent Response What is the first language the student learned to speak What language does the student speak most often What language is most often spoken in the home Notes
For Office Use Only Person Reviewing this Survey ____________________________
Determination
The studentrsquos home language Language
If the language is other than English the English language proficiency test should be administered
Administer the English Language Proficiency Test Circle Yes or No
NC Title III Application 2011-2012 Appendices Page 3 of 28
APPENDIX III Home Language Survey Process
North Carolina Procedures for the Identification of Limited English Proficient Students
The North Carolina State Board of Education policy GCS-K-000 (16 NCAC 6D0106) requires that a Home Language Survey (HLS) be administered to all students upon initial enrollment The HLS is used to help determine if the student is a language minority student (The Home Language Survey Process is shown at the end of this document as Appendix A) HLS ADMINISTRATION Upon initial enrollment in a local education agency (LEA) all students are guided through the Home Language Survey process and have a completed HLS placed on file The state has provided a sample HLS at httpeslncwiseowlorgresourcesdocuments which has suggestions for the type of questions to be asked such as
1 What is the first language the student learned to speak 2 What language does the student speak most often 3 What language is most often spoken in the home
If review of the survey shows no language other than English the student is not a language minority student The completed HLS is filed in the studentrsquos cumulative folder Responses to any of the questions on the HLS indicating languages other than English should prompt the school to investigate and determine the studentrsquos actual home language1 HLS INVESTIGATION The school district Limited English Proficiency (LEP) coordinatordesignee should interview the student and hisher parentguardian to clarify the home language of the student Some sample probing questions are
1 When the child was young and language was developing what language(s) waswere spoken to the child
2 How is the language (other than English) used in the home 3 Are there other student issues (eg significant health issues academic gaps grade retentions
special services etc) Studentrsquos Dominant Language is English If the process shows the studentrsquos dominant language is English then the student is not a language minority student The completed HLS is filed in the studentrsquos cumulative folder Studentrsquos Dominant Language is a Language Other Than English If the investigation reveals that the dominant home language is a language other than English that language is confirmed on the HLS The survey is filed in the studentrsquos cumulative folder and the student
1 Home language is the language normally used by the individual or normally used by the parents of the child or youth Trained school personnel must research this information to determine and document the studentrsquos actual home language at the time of entry into US schools
NC Title III Application 2011-2012 Appendices Page 4 of 28
APPENDIX III (cont) is scheduled for administration of the WIDA Access Placement Test (W-APT) trade according to one of the three procedures described below HLS Completed in Another LEA If an HLS was completed in another North Carolina public school prior to enrolling at the current school then staff should compare the responses on the two forms for consistency If inconsistencies are found the staff will investigate and determine the home language and eligibility of the student for ESL services as documented by the investigation Keep in mind that during any investigation the LEA retains the responsibility to ensure that the student has an equal opportunity to have hisher English language and academic needs met If the investigation documentation indicates the student is a language minority student and if no W-APT has been previously administered then the student is scheduled for W-APT administration according to one of the three procedures described below CONSIDERATIONS FOR W-APT ADMINISTRATION
1 IEP Exists (Other Student Issues Documented) If the student is identified as a language minority student and the investigation reveals that the student has an existing Individualized Education Program (IEP) then the IEP Team including ESL staff reviews the IEP The W-APT is administered with any testing accommodations documented in the studentrsquos current IEP The Composite Score is calculated with lowest score(s) from any inaccessible subtest(s) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then ESL staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) W-APT results are reported to the IEP Team If the student is not LEP then the IEP Team indicates this under the ldquoConsideration of Special Factorsrdquo in the IEP If the student is identified as LEP the IEP Team determines language needs as related to the IEP (eg collaboration training materials and native language support) The LEP identification and eligibility for testing accommodations are noted in both the IEP and LEP plandocumentation Once identified as limited English language proficient the student is required by state and federal law to be annually assessed on the state identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg Appropriate testing accommodations for the ACCESS administration are noted in both the IEP and LEP plandocumentation
2 Regular Procedure (No Other Student Issues Documented) If the student is identified as a language minority heshe is administered the state-identified English language proficiency screenertest to determine potential LEP identification According to State Board of Education policy GCS-A-011 to be identified as limited English proficient students must be assessed using the W-APT If a language minority student enrolls at the beginning of the school year he or she must be administered all four subtests (listening speaking reading and writing) of the W-APT and the parent must be notified within thirty (30) calendar days of enrollment of the studentrsquos eligibility for ESL services If a language minority student enrolls after the beginning of the school year he or she must be administered all four subtests (listening speaking reading and writing) of the W-APT and the parent
NC Title III Application 2011-2012 Appendices Page 5 of 28
APPENDIX III (cont) must be notified within 14 calendar days of enrollment (Note Kindergarten students enrolling at or during the first semester will only be administered the listening and speaking portion) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) If the student is identified as LEP based on performance on the W-APT then English as a Second Language (ESL) staff documents the identification and the appropriate language instructional program goals in the LEP plandocumentation The LEP plandocumentation will also indicate appropriate instructional and testing accommodations for which the student is eligible Once identified as Limited English Proficient the student is required by state and federal law to be annually assessed on the state-identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg
3 No IEP Exists and Other Student Issues Documented If the student is identified as a language minority student and the investigation reveals other student issues (eg a history of special services grade retention significant health issues etc) the W-APT is administered Any accessibility issues are documented in the studentrsquos cumulative folder along with the results The Composite Score is calculated with lowest score(s) from any inaccessible subtest(s) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then ESL staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) If the student is not identified as LEP based on the W-APT results staff will record this in the studentrsquos cumulative folder If the student is identified as LEP a Student Support Team including ESL staff reviews information and makes recommendations concerning appropriate interventions The Student Support Team documents the identification and the eligibility for appropriate testing accommodations The LEP plandocumentation will also indicate the appropriate language instructional program This team will monitor the studentrsquos progress If the student is subsequently referred and identified as eligible for special education under the IDEA the IEP Team including ESL staff will determine the language needs as related to the studentrsquos IEP and documented in the IEP and the LEP plandocumentation Once identified as limited English language proficient the student is required by state and federal law to be annually assessed on the state identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg If the student is referred and identified as eligible for special education under the IDEA then appropriate testing accommodations for the ACCESS administration are noted in the IEP and LEP Plandocumentation
NC Title III Application 2011-2012 Appendices Page 6 of 28
APPENDIX III (cont) Appendix A
NC Title III Application 2011-2012 Appendices Page 7 of 28
APPENDIX III (cont) Appendix B
North Carolina LEP Identification Criteria
W-APT Identification Criteria for Students with a Home Language other than English
Grade Domains W-APT Score Identifies Student as LEP
W-APT Score Indicating Student is NOT LEP
Kindergarten 1st Semester
Speaking
amp Listening
Less than 27 27 or Higher
Kindergarten 2nd Semester
All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 1st Semester All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 2nd Semester All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
Grade 2 -Grade 12 1st and 2nd semester
All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
NC Title III Application 2011-2012 Appendices Page 8 of 28
APPENDIX IV GCS-K-000
NORTH CAROLINA STATE BOARD OF EDUCATION Policy Manual
Policy Identification Priority High Student Performance Category Second Languages Policy ID Number GCS-K-000
Policy Title 16 NCAC 6D0106 Policy establishing guidelines for Limited English Proficient Programs Current Policy Date 06011996
Other Historical Information Previous board dates 09071995
Statutory Reference
Administrative Procedures Act (APA) Reference Number and Category 16 NCAC 6D 0106
0106 LIMITED ENGLISH PROFICIENCY PROGRAMS (a)Each superintendent or his delegate shall (1) identify resources available to serve limited English proficient students (2) coordinate programs and services to these students and their parents in the local school
administrative unit (3) report to the SBE information concerning the identification placement and educational progress of
these students and (4) report funding needs for the provision of services to these students to the SBE (b) LEAs shall report annually to the SBE information including but not limited to the number of students whose primary home language is other than English the number of limited English proficient students identified and receiving services the nature of the services the number of limited English proficient students receiving special education services and services for the academically gifted and data required to be reported to the U S Department of Education (c) A home language survey shall be administered to every student at the time of enrollment and maintained in
the students permanent record LEAs shall then identify and assess every limited English proficient student who needs assistance in order to have access to the units instructional programs Each LEA which identifies limited English proficient students who need assistance shall adopt an effective method of determining the students current level of English proficiency in order to determine what types of assistance are needed The method used may be a combination of the following unless some other method can be effectively substituted
(1) teacher observations (2) teacher interview (3) achievement tests
NC Title III Application 2011-2012 Appendices Page 9 of 28
APPENDIX IV (cont) (4) review of student records (5) parent information (6) proficiency tests (7) English as a second language teacher referral (8) student course grades (9) teacher referral or recommendation (10) criterion-referenced tests (11) grade retention or deficiency report (12) informal assessment or screening (13) portfolio-based assessment and (14) alternative assessments such as cloze and dictation (d) LEAs shall adopt a program or programs for limited English proficient students who need assistance which
have a reasonable chance of allowing students to progress in school The program may be one of the following unless some other method or process can be effectively substituted
(1) English as a second language (ESL) (2) bilingual education (3) programs which provide neither instruction in the native language nor direct instruction in ESL but
which adapt instruction to meet the needs of these students Program entry criteria shall be developed which take into account the students educational background English language proficiency native language proficiency and content area knowledge LEAs shall conduct a program evaluation annually
(e) LEAs shall adopt appropriate evaluative standards for measuring the progress of limited English proficient students in school In order to determine when students no longer need assistance the LEA shall determine the content knowledge and language skills necessary for successful functioning in the regular classroom Then multiple instruments as well as teacher judgment may be used to evaluate English listening and speaking skills English literacy skills and content area knowledge The students shall not be maintained in alternative language programs longer than necessary based on program exit criteria but shall be monitored after exiting such programs for a minimum of six months and additional academic and English language support shall be provided if the students begin to have difficulty
(f)LEAs shall monitor the progress of limited English proficient students in English proficiency and in the BEP When a limited English proficient student is not making progress in school the LEA shall conduct an evaluation of the students program and make modification as needed
(g) Limited English proficient students shall participate in the statewide testing programs in accordance with 16 NCAC 6D 0301 (h) LEAs shall promote the involvement of parents of students of limited English proficiency in the educational
program of their children LEAs shall notify national origin minority group parents of school activities which are called to the attention of other parents and these notices shall be provided in the home language if feasible
(i)LEAs shall ensure that limited English proficient students are not assigned to or excluded from special education programs because of their limited English language proficiency Evaluation placement and notification to parents of students with special needs shall be conducted in accordance with the Individuals with Disabilities Education Act 20 USC sect 1401 et seq and its implementing regulations at 34 CFR Part 300
NC Title III Application 2011-2012 Appendices Page 10 of 28
APPENDIX IV (cont) (j) LEAs shall ensure that limited English proficient students are not categorically excluded from programs for
the academically gifted and other specialized programs or support services such as guidance and counseling due to limited English proficiency
(k)LEAs shall ensure that limited English proficient students are educated in the least segregative manner based on the educational needs of the student and these students shall be included in all aspects of the regular school program in which they can perform satisfactorily
(l)The department shall monitor the progress of LEAs in providing programs to all limited English proficient students using the same procedures and standards as provided in Title I - Helping Disadvantaged Children Meet High Standards 20 USC sect 6301 et seq
(m) The department shall make available a list to all LEAs of teachers licensed in English as a Second Language (ESL) ESL training and add-on ESL licensure for teachers currently licensed in areas other than ESL is an appropriate strategy to obtain qualified staff
(n) Each LEA may consider joint agreements with other LEAs to provide programs to limited English proficient students (o) Each LEA may coordinate services with those available at local community colleges in order to maximize
efficient delivery of services to limited English proficient students and their parents (p) The department shall administer the Teacher Education Program Approval process so as to ensure that all
participants have an opportunity to gain an understanding of and develop strategies for addressing the educational needs of limited English proficient students The Department shall work with IHEs to expand English as a Second Language teacher training programs
History Note Authority GS 115C-12(9)c NC Constitution Article IX Sec 5 20 USC sect1703 Eff June 1
1996
NC Title III Application 2011-2012 Appendices Page 11 of 28
APPENDIX V Selected OCR Guidance
Office of Civil Rights
Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency
httpwwwedgovprintaboutofficeslistocrdocslau1991html
UNITED STATES DEPARTMENT OF EDUCATION WASHINGTON DC 20202
MEMORANDUM
SEP 27 1991
TO OCR Senior Staff
FROM Michael L Williams Assistant Secretary for Civil Rights
SUBJECT Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)
This policy update is primarily designed for use in conducting Lau[1] compliance reviews -- that is compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools programs The policy update adheres to OCRs past determination that Title VI does not mandate any particular program of instruction for LEP students In determining whether the recipient is operating a program for LEP students that meets Title VI requirements OCR will consider whether (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the program succeeds after a legitimate trial in producing results indicating that students language barriers are actually being overcome The policy update also discusses some difficult issues that frequently arise in Lau investigations An appendix to the policy discusses the continuing validity of OCRs use of the Castaneda[2] standard to determine compliance with the Title VI regulation
This document should be read in conjunction with the December 3 1985 guidance document entitled The Office for Civil Rights Title VI Language Minority Compliance Procedures and the May 1970 memorandum to school districts entitled Identification of Discrimination and Denial of Services on the Basis of National origin 35 Fed Reg 11595 (May 1970 Memorandum) It does not supersede either document[3] These two documents are attached for your convenience
Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCRs Title VI Lau policy In Part I more specific standards are enunciated for staffing requirements exit criteria and program evaluation Policy issues related to special education programs giftedtalented programs and other special programs are also discussed Part II of the policy update describes OCRs policy with regard to segregation of LEP students
NC Title III Application 2011-2012 Appendices Page 12 of 28
APPENDIX V (cont) The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974
With the possible exception of Castaneda which provides a common sense analytical framework for analyzing a districts program for LEP students that has been adopted by OCR and Keyes v School Dist No 1 which
applied the Castaneda principles to the Denver Public Schools most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCRs practical legal and policy experience in the field In that regard the issues discussed herein and the policy decisions reached reflect a careful and thorough examination of Lau case investigations carried out by OCRs regional offices over the past few years comments from the regional offices on a draft version of the policy and lengthy discussions on the issues with some of OCRs most experienced investigators Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate
I Additional guidance for applying the May 1970 and December 1985 memoranda
The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI (1) the need for an alternative language program for LEP students and (2) the adequacy of the program chosen by the recipient Issues related to the adequacy of the program chosen by the recipient will be discussed first as they arise more often in Lau investigations Of course the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipients educational program
A Adequacy of Program
This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipients efforts to provide equal educational opportunities for LEP students
1 Soundness of educational approach
Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field or at least theories that are recognized as legitimate educational strategies 648 F 2d at 1009 Some approaches that fall under this category include transitional bilingual education bilingualbicultural education structured immersion developmental bilingual education and English as a Second Language (ESL) A district that is using any of these approaches has complied with the first requirement of Castaneda If a district is using a different approach it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy
2 Proper Implementation
Castaneda requires that the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school 648 F 2d at 1010 Some problematic implementation issues have included staffing requirements for programs exit criteria and access to programs such as giftedtalented programs These issues are discussed below
NC Title III Application 2011-2012 Appendices Page 13 of 28
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX I Language Instructional Program Types in North Carolina Public Schools March 2011
Name of Approach
Instructional Language(s)
Key Features Notes
Programs that utilize two languages for instruction Dual Language Developmental Bilingual Program (Additive Bilingualism)
English and studentrsquos heritage language
Designed to help non-English speakers learn English as well as maintain and improve their native or heritage language skills
Students become bilingual biliterate and bicultural in a way that honors their need to simultaneously identify and communicate with their heritage or home culture and with the mainstream culture they live and will work in
Dual Language Two-Way Immersion Program (Additive Bilingualism)
English and another language
Comprised of approximately 50 native English speakers and 50 native speakers of the target language Both groups of students become bilingual biliterate and bicultural
Content instruction is provided both in English and in the target language
Transitional Bilingual Education Program (Subtractive Bilingualism)
focus on studentrsquos primary (non-English) language
Presented in the ELLs native language for at least 2 or 3 years after which time ELLs receive all-English instruction
Primary purpose is to facilitate studentsrsquo transition to an all-English instructional program while receiving academic subject instruction in the native language to the extent necessary
Heritage Language Program
focus on studentrsquos primary (non-English) language
Typically targets non-native English speakers with weak literacy skills in first language
The goal is building literacy in two languages
English Language Instructional Programs for English [as a Second] Language Learners [ELLs] Extra content support in English and the native language may also occur
English as a Second Language [ESL]
English A program of techniques methodology and special curriculum designed to teach English reading writing listening and speaking skills to ELLs
ESL instruction is in English with little use of studentsrsquo native languages This may occur as a pull-out session or a scheduled class time
Content-based ESL English Uses instructional materials learning tasks and classroom techniques from academic content areas as the vehicle for developing language content cognitive and study skills
Instruction is in English with little use of studentsrsquo native languages This may occur as a pull-out session or a scheduled class time
Sheltered Instruction Sheltered Instruction Observation Protocol
English Adapts academic instruction in English to make it understandable to LEP students
Can be implemented by content and ESL teachers in English language arts mathematics science social studies and other subjects
Newcomer Services English
Separate relatively self-contained educational interventions to meet the academic and transitional needs of newly- arrived immigrants
Students usually attend these programs for a very limited time before they enter an ESL program Services may be provided at a special site or may be provided at the school site
ESL Co-Teaching
English Shared collaborative teacher planning time so that teachers that can implement strategies that integrate language acquisition literacy and academic content at the same time
Caution Co-Teaching is NOT supplying an ESL teacher who enters the class and assists individual students Requires professional development for both teachers so that grade level and developmentally appropriate teaching from both the ESL and content teacher occurs
Service Delivery Types1
Direct Appropriate consistent face-to-face service Consultative Service delivery varies as deemed necessary based on formalized contacts with teachers of ELLs and other
staff including (but not restricted to) instructional modifications state testing accommodations periodic face-to-face instruction or counseling
1 All ELLs must have an LEP Plan including proficiency level descriptions instructional modifications and state test accommodations
NC Title III Application 2011-2012 Appendices Page 2 of 28
APPENDIX II SAMPLE North Carolina Home Language Survey Form August 2008 httpeslncwiseowlorgresourcesdocuments to download a copy
Directions 1 Parentsguardians of all new students (including preschool and Kindergarten) complete this form at the time of enrollment and record all information requested Provide interpreting services whenever necessary 2 Ensure that all questions on the form are completed Determine which ESL Program staff will review the responses interview the parent as necessary andor observe the student to determine the home language If the parent lists more than one language other than English the reviewer must determine which one is the childrsquos home language for data collection purposes and document it on this form 3 If it is determined that a studentrsquos home language is other than English administer the English language proficiency test Follow your protocol to collect and document the studentrsquos scores 4 Place the original form in the studentrsquos cumulative folder
Student Information First Name Last Name
Country of Birth Date first enrolled in any US school (Private or Public but not PreK) Indicate if the student left the US for a school year(s)
Date of Birth
Current School School Enrollment Date Current Grade
Questions for ParentsGuardians Parent Response What is the first language the student learned to speak What language does the student speak most often What language is most often spoken in the home Notes
For Office Use Only Person Reviewing this Survey ____________________________
Determination
The studentrsquos home language Language
If the language is other than English the English language proficiency test should be administered
Administer the English Language Proficiency Test Circle Yes or No
NC Title III Application 2011-2012 Appendices Page 3 of 28
APPENDIX III Home Language Survey Process
North Carolina Procedures for the Identification of Limited English Proficient Students
The North Carolina State Board of Education policy GCS-K-000 (16 NCAC 6D0106) requires that a Home Language Survey (HLS) be administered to all students upon initial enrollment The HLS is used to help determine if the student is a language minority student (The Home Language Survey Process is shown at the end of this document as Appendix A) HLS ADMINISTRATION Upon initial enrollment in a local education agency (LEA) all students are guided through the Home Language Survey process and have a completed HLS placed on file The state has provided a sample HLS at httpeslncwiseowlorgresourcesdocuments which has suggestions for the type of questions to be asked such as
1 What is the first language the student learned to speak 2 What language does the student speak most often 3 What language is most often spoken in the home
If review of the survey shows no language other than English the student is not a language minority student The completed HLS is filed in the studentrsquos cumulative folder Responses to any of the questions on the HLS indicating languages other than English should prompt the school to investigate and determine the studentrsquos actual home language1 HLS INVESTIGATION The school district Limited English Proficiency (LEP) coordinatordesignee should interview the student and hisher parentguardian to clarify the home language of the student Some sample probing questions are
1 When the child was young and language was developing what language(s) waswere spoken to the child
2 How is the language (other than English) used in the home 3 Are there other student issues (eg significant health issues academic gaps grade retentions
special services etc) Studentrsquos Dominant Language is English If the process shows the studentrsquos dominant language is English then the student is not a language minority student The completed HLS is filed in the studentrsquos cumulative folder Studentrsquos Dominant Language is a Language Other Than English If the investigation reveals that the dominant home language is a language other than English that language is confirmed on the HLS The survey is filed in the studentrsquos cumulative folder and the student
1 Home language is the language normally used by the individual or normally used by the parents of the child or youth Trained school personnel must research this information to determine and document the studentrsquos actual home language at the time of entry into US schools
NC Title III Application 2011-2012 Appendices Page 4 of 28
APPENDIX III (cont) is scheduled for administration of the WIDA Access Placement Test (W-APT) trade according to one of the three procedures described below HLS Completed in Another LEA If an HLS was completed in another North Carolina public school prior to enrolling at the current school then staff should compare the responses on the two forms for consistency If inconsistencies are found the staff will investigate and determine the home language and eligibility of the student for ESL services as documented by the investigation Keep in mind that during any investigation the LEA retains the responsibility to ensure that the student has an equal opportunity to have hisher English language and academic needs met If the investigation documentation indicates the student is a language minority student and if no W-APT has been previously administered then the student is scheduled for W-APT administration according to one of the three procedures described below CONSIDERATIONS FOR W-APT ADMINISTRATION
1 IEP Exists (Other Student Issues Documented) If the student is identified as a language minority student and the investigation reveals that the student has an existing Individualized Education Program (IEP) then the IEP Team including ESL staff reviews the IEP The W-APT is administered with any testing accommodations documented in the studentrsquos current IEP The Composite Score is calculated with lowest score(s) from any inaccessible subtest(s) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then ESL staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) W-APT results are reported to the IEP Team If the student is not LEP then the IEP Team indicates this under the ldquoConsideration of Special Factorsrdquo in the IEP If the student is identified as LEP the IEP Team determines language needs as related to the IEP (eg collaboration training materials and native language support) The LEP identification and eligibility for testing accommodations are noted in both the IEP and LEP plandocumentation Once identified as limited English language proficient the student is required by state and federal law to be annually assessed on the state identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg Appropriate testing accommodations for the ACCESS administration are noted in both the IEP and LEP plandocumentation
2 Regular Procedure (No Other Student Issues Documented) If the student is identified as a language minority heshe is administered the state-identified English language proficiency screenertest to determine potential LEP identification According to State Board of Education policy GCS-A-011 to be identified as limited English proficient students must be assessed using the W-APT If a language minority student enrolls at the beginning of the school year he or she must be administered all four subtests (listening speaking reading and writing) of the W-APT and the parent must be notified within thirty (30) calendar days of enrollment of the studentrsquos eligibility for ESL services If a language minority student enrolls after the beginning of the school year he or she must be administered all four subtests (listening speaking reading and writing) of the W-APT and the parent
NC Title III Application 2011-2012 Appendices Page 5 of 28
APPENDIX III (cont) must be notified within 14 calendar days of enrollment (Note Kindergarten students enrolling at or during the first semester will only be administered the listening and speaking portion) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) If the student is identified as LEP based on performance on the W-APT then English as a Second Language (ESL) staff documents the identification and the appropriate language instructional program goals in the LEP plandocumentation The LEP plandocumentation will also indicate appropriate instructional and testing accommodations for which the student is eligible Once identified as Limited English Proficient the student is required by state and federal law to be annually assessed on the state-identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg
3 No IEP Exists and Other Student Issues Documented If the student is identified as a language minority student and the investigation reveals other student issues (eg a history of special services grade retention significant health issues etc) the W-APT is administered Any accessibility issues are documented in the studentrsquos cumulative folder along with the results The Composite Score is calculated with lowest score(s) from any inaccessible subtest(s) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then ESL staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) If the student is not identified as LEP based on the W-APT results staff will record this in the studentrsquos cumulative folder If the student is identified as LEP a Student Support Team including ESL staff reviews information and makes recommendations concerning appropriate interventions The Student Support Team documents the identification and the eligibility for appropriate testing accommodations The LEP plandocumentation will also indicate the appropriate language instructional program This team will monitor the studentrsquos progress If the student is subsequently referred and identified as eligible for special education under the IDEA the IEP Team including ESL staff will determine the language needs as related to the studentrsquos IEP and documented in the IEP and the LEP plandocumentation Once identified as limited English language proficient the student is required by state and federal law to be annually assessed on the state identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg If the student is referred and identified as eligible for special education under the IDEA then appropriate testing accommodations for the ACCESS administration are noted in the IEP and LEP Plandocumentation
NC Title III Application 2011-2012 Appendices Page 6 of 28
APPENDIX III (cont) Appendix A
NC Title III Application 2011-2012 Appendices Page 7 of 28
APPENDIX III (cont) Appendix B
North Carolina LEP Identification Criteria
W-APT Identification Criteria for Students with a Home Language other than English
Grade Domains W-APT Score Identifies Student as LEP
W-APT Score Indicating Student is NOT LEP
Kindergarten 1st Semester
Speaking
amp Listening
Less than 27 27 or Higher
Kindergarten 2nd Semester
All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 1st Semester All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 2nd Semester All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
Grade 2 -Grade 12 1st and 2nd semester
All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
NC Title III Application 2011-2012 Appendices Page 8 of 28
APPENDIX IV GCS-K-000
NORTH CAROLINA STATE BOARD OF EDUCATION Policy Manual
Policy Identification Priority High Student Performance Category Second Languages Policy ID Number GCS-K-000
Policy Title 16 NCAC 6D0106 Policy establishing guidelines for Limited English Proficient Programs Current Policy Date 06011996
Other Historical Information Previous board dates 09071995
Statutory Reference
Administrative Procedures Act (APA) Reference Number and Category 16 NCAC 6D 0106
0106 LIMITED ENGLISH PROFICIENCY PROGRAMS (a)Each superintendent or his delegate shall (1) identify resources available to serve limited English proficient students (2) coordinate programs and services to these students and their parents in the local school
administrative unit (3) report to the SBE information concerning the identification placement and educational progress of
these students and (4) report funding needs for the provision of services to these students to the SBE (b) LEAs shall report annually to the SBE information including but not limited to the number of students whose primary home language is other than English the number of limited English proficient students identified and receiving services the nature of the services the number of limited English proficient students receiving special education services and services for the academically gifted and data required to be reported to the U S Department of Education (c) A home language survey shall be administered to every student at the time of enrollment and maintained in
the students permanent record LEAs shall then identify and assess every limited English proficient student who needs assistance in order to have access to the units instructional programs Each LEA which identifies limited English proficient students who need assistance shall adopt an effective method of determining the students current level of English proficiency in order to determine what types of assistance are needed The method used may be a combination of the following unless some other method can be effectively substituted
(1) teacher observations (2) teacher interview (3) achievement tests
NC Title III Application 2011-2012 Appendices Page 9 of 28
APPENDIX IV (cont) (4) review of student records (5) parent information (6) proficiency tests (7) English as a second language teacher referral (8) student course grades (9) teacher referral or recommendation (10) criterion-referenced tests (11) grade retention or deficiency report (12) informal assessment or screening (13) portfolio-based assessment and (14) alternative assessments such as cloze and dictation (d) LEAs shall adopt a program or programs for limited English proficient students who need assistance which
have a reasonable chance of allowing students to progress in school The program may be one of the following unless some other method or process can be effectively substituted
(1) English as a second language (ESL) (2) bilingual education (3) programs which provide neither instruction in the native language nor direct instruction in ESL but
which adapt instruction to meet the needs of these students Program entry criteria shall be developed which take into account the students educational background English language proficiency native language proficiency and content area knowledge LEAs shall conduct a program evaluation annually
(e) LEAs shall adopt appropriate evaluative standards for measuring the progress of limited English proficient students in school In order to determine when students no longer need assistance the LEA shall determine the content knowledge and language skills necessary for successful functioning in the regular classroom Then multiple instruments as well as teacher judgment may be used to evaluate English listening and speaking skills English literacy skills and content area knowledge The students shall not be maintained in alternative language programs longer than necessary based on program exit criteria but shall be monitored after exiting such programs for a minimum of six months and additional academic and English language support shall be provided if the students begin to have difficulty
(f)LEAs shall monitor the progress of limited English proficient students in English proficiency and in the BEP When a limited English proficient student is not making progress in school the LEA shall conduct an evaluation of the students program and make modification as needed
(g) Limited English proficient students shall participate in the statewide testing programs in accordance with 16 NCAC 6D 0301 (h) LEAs shall promote the involvement of parents of students of limited English proficiency in the educational
program of their children LEAs shall notify national origin minority group parents of school activities which are called to the attention of other parents and these notices shall be provided in the home language if feasible
(i)LEAs shall ensure that limited English proficient students are not assigned to or excluded from special education programs because of their limited English language proficiency Evaluation placement and notification to parents of students with special needs shall be conducted in accordance with the Individuals with Disabilities Education Act 20 USC sect 1401 et seq and its implementing regulations at 34 CFR Part 300
NC Title III Application 2011-2012 Appendices Page 10 of 28
APPENDIX IV (cont) (j) LEAs shall ensure that limited English proficient students are not categorically excluded from programs for
the academically gifted and other specialized programs or support services such as guidance and counseling due to limited English proficiency
(k)LEAs shall ensure that limited English proficient students are educated in the least segregative manner based on the educational needs of the student and these students shall be included in all aspects of the regular school program in which they can perform satisfactorily
(l)The department shall monitor the progress of LEAs in providing programs to all limited English proficient students using the same procedures and standards as provided in Title I - Helping Disadvantaged Children Meet High Standards 20 USC sect 6301 et seq
(m) The department shall make available a list to all LEAs of teachers licensed in English as a Second Language (ESL) ESL training and add-on ESL licensure for teachers currently licensed in areas other than ESL is an appropriate strategy to obtain qualified staff
(n) Each LEA may consider joint agreements with other LEAs to provide programs to limited English proficient students (o) Each LEA may coordinate services with those available at local community colleges in order to maximize
efficient delivery of services to limited English proficient students and their parents (p) The department shall administer the Teacher Education Program Approval process so as to ensure that all
participants have an opportunity to gain an understanding of and develop strategies for addressing the educational needs of limited English proficient students The Department shall work with IHEs to expand English as a Second Language teacher training programs
History Note Authority GS 115C-12(9)c NC Constitution Article IX Sec 5 20 USC sect1703 Eff June 1
1996
NC Title III Application 2011-2012 Appendices Page 11 of 28
APPENDIX V Selected OCR Guidance
Office of Civil Rights
Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency
httpwwwedgovprintaboutofficeslistocrdocslau1991html
UNITED STATES DEPARTMENT OF EDUCATION WASHINGTON DC 20202
MEMORANDUM
SEP 27 1991
TO OCR Senior Staff
FROM Michael L Williams Assistant Secretary for Civil Rights
SUBJECT Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)
This policy update is primarily designed for use in conducting Lau[1] compliance reviews -- that is compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools programs The policy update adheres to OCRs past determination that Title VI does not mandate any particular program of instruction for LEP students In determining whether the recipient is operating a program for LEP students that meets Title VI requirements OCR will consider whether (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the program succeeds after a legitimate trial in producing results indicating that students language barriers are actually being overcome The policy update also discusses some difficult issues that frequently arise in Lau investigations An appendix to the policy discusses the continuing validity of OCRs use of the Castaneda[2] standard to determine compliance with the Title VI regulation
This document should be read in conjunction with the December 3 1985 guidance document entitled The Office for Civil Rights Title VI Language Minority Compliance Procedures and the May 1970 memorandum to school districts entitled Identification of Discrimination and Denial of Services on the Basis of National origin 35 Fed Reg 11595 (May 1970 Memorandum) It does not supersede either document[3] These two documents are attached for your convenience
Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCRs Title VI Lau policy In Part I more specific standards are enunciated for staffing requirements exit criteria and program evaluation Policy issues related to special education programs giftedtalented programs and other special programs are also discussed Part II of the policy update describes OCRs policy with regard to segregation of LEP students
NC Title III Application 2011-2012 Appendices Page 12 of 28
APPENDIX V (cont) The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974
With the possible exception of Castaneda which provides a common sense analytical framework for analyzing a districts program for LEP students that has been adopted by OCR and Keyes v School Dist No 1 which
applied the Castaneda principles to the Denver Public Schools most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCRs practical legal and policy experience in the field In that regard the issues discussed herein and the policy decisions reached reflect a careful and thorough examination of Lau case investigations carried out by OCRs regional offices over the past few years comments from the regional offices on a draft version of the policy and lengthy discussions on the issues with some of OCRs most experienced investigators Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate
I Additional guidance for applying the May 1970 and December 1985 memoranda
The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI (1) the need for an alternative language program for LEP students and (2) the adequacy of the program chosen by the recipient Issues related to the adequacy of the program chosen by the recipient will be discussed first as they arise more often in Lau investigations Of course the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipients educational program
A Adequacy of Program
This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipients efforts to provide equal educational opportunities for LEP students
1 Soundness of educational approach
Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field or at least theories that are recognized as legitimate educational strategies 648 F 2d at 1009 Some approaches that fall under this category include transitional bilingual education bilingualbicultural education structured immersion developmental bilingual education and English as a Second Language (ESL) A district that is using any of these approaches has complied with the first requirement of Castaneda If a district is using a different approach it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy
2 Proper Implementation
Castaneda requires that the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school 648 F 2d at 1010 Some problematic implementation issues have included staffing requirements for programs exit criteria and access to programs such as giftedtalented programs These issues are discussed below
NC Title III Application 2011-2012 Appendices Page 13 of 28
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX II SAMPLE North Carolina Home Language Survey Form August 2008 httpeslncwiseowlorgresourcesdocuments to download a copy
Directions 1 Parentsguardians of all new students (including preschool and Kindergarten) complete this form at the time of enrollment and record all information requested Provide interpreting services whenever necessary 2 Ensure that all questions on the form are completed Determine which ESL Program staff will review the responses interview the parent as necessary andor observe the student to determine the home language If the parent lists more than one language other than English the reviewer must determine which one is the childrsquos home language for data collection purposes and document it on this form 3 If it is determined that a studentrsquos home language is other than English administer the English language proficiency test Follow your protocol to collect and document the studentrsquos scores 4 Place the original form in the studentrsquos cumulative folder
Student Information First Name Last Name
Country of Birth Date first enrolled in any US school (Private or Public but not PreK) Indicate if the student left the US for a school year(s)
Date of Birth
Current School School Enrollment Date Current Grade
Questions for ParentsGuardians Parent Response What is the first language the student learned to speak What language does the student speak most often What language is most often spoken in the home Notes
For Office Use Only Person Reviewing this Survey ____________________________
Determination
The studentrsquos home language Language
If the language is other than English the English language proficiency test should be administered
Administer the English Language Proficiency Test Circle Yes or No
NC Title III Application 2011-2012 Appendices Page 3 of 28
APPENDIX III Home Language Survey Process
North Carolina Procedures for the Identification of Limited English Proficient Students
The North Carolina State Board of Education policy GCS-K-000 (16 NCAC 6D0106) requires that a Home Language Survey (HLS) be administered to all students upon initial enrollment The HLS is used to help determine if the student is a language minority student (The Home Language Survey Process is shown at the end of this document as Appendix A) HLS ADMINISTRATION Upon initial enrollment in a local education agency (LEA) all students are guided through the Home Language Survey process and have a completed HLS placed on file The state has provided a sample HLS at httpeslncwiseowlorgresourcesdocuments which has suggestions for the type of questions to be asked such as
1 What is the first language the student learned to speak 2 What language does the student speak most often 3 What language is most often spoken in the home
If review of the survey shows no language other than English the student is not a language minority student The completed HLS is filed in the studentrsquos cumulative folder Responses to any of the questions on the HLS indicating languages other than English should prompt the school to investigate and determine the studentrsquos actual home language1 HLS INVESTIGATION The school district Limited English Proficiency (LEP) coordinatordesignee should interview the student and hisher parentguardian to clarify the home language of the student Some sample probing questions are
1 When the child was young and language was developing what language(s) waswere spoken to the child
2 How is the language (other than English) used in the home 3 Are there other student issues (eg significant health issues academic gaps grade retentions
special services etc) Studentrsquos Dominant Language is English If the process shows the studentrsquos dominant language is English then the student is not a language minority student The completed HLS is filed in the studentrsquos cumulative folder Studentrsquos Dominant Language is a Language Other Than English If the investigation reveals that the dominant home language is a language other than English that language is confirmed on the HLS The survey is filed in the studentrsquos cumulative folder and the student
1 Home language is the language normally used by the individual or normally used by the parents of the child or youth Trained school personnel must research this information to determine and document the studentrsquos actual home language at the time of entry into US schools
NC Title III Application 2011-2012 Appendices Page 4 of 28
APPENDIX III (cont) is scheduled for administration of the WIDA Access Placement Test (W-APT) trade according to one of the three procedures described below HLS Completed in Another LEA If an HLS was completed in another North Carolina public school prior to enrolling at the current school then staff should compare the responses on the two forms for consistency If inconsistencies are found the staff will investigate and determine the home language and eligibility of the student for ESL services as documented by the investigation Keep in mind that during any investigation the LEA retains the responsibility to ensure that the student has an equal opportunity to have hisher English language and academic needs met If the investigation documentation indicates the student is a language minority student and if no W-APT has been previously administered then the student is scheduled for W-APT administration according to one of the three procedures described below CONSIDERATIONS FOR W-APT ADMINISTRATION
1 IEP Exists (Other Student Issues Documented) If the student is identified as a language minority student and the investigation reveals that the student has an existing Individualized Education Program (IEP) then the IEP Team including ESL staff reviews the IEP The W-APT is administered with any testing accommodations documented in the studentrsquos current IEP The Composite Score is calculated with lowest score(s) from any inaccessible subtest(s) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then ESL staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) W-APT results are reported to the IEP Team If the student is not LEP then the IEP Team indicates this under the ldquoConsideration of Special Factorsrdquo in the IEP If the student is identified as LEP the IEP Team determines language needs as related to the IEP (eg collaboration training materials and native language support) The LEP identification and eligibility for testing accommodations are noted in both the IEP and LEP plandocumentation Once identified as limited English language proficient the student is required by state and federal law to be annually assessed on the state identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg Appropriate testing accommodations for the ACCESS administration are noted in both the IEP and LEP plandocumentation
2 Regular Procedure (No Other Student Issues Documented) If the student is identified as a language minority heshe is administered the state-identified English language proficiency screenertest to determine potential LEP identification According to State Board of Education policy GCS-A-011 to be identified as limited English proficient students must be assessed using the W-APT If a language minority student enrolls at the beginning of the school year he or she must be administered all four subtests (listening speaking reading and writing) of the W-APT and the parent must be notified within thirty (30) calendar days of enrollment of the studentrsquos eligibility for ESL services If a language minority student enrolls after the beginning of the school year he or she must be administered all four subtests (listening speaking reading and writing) of the W-APT and the parent
NC Title III Application 2011-2012 Appendices Page 5 of 28
APPENDIX III (cont) must be notified within 14 calendar days of enrollment (Note Kindergarten students enrolling at or during the first semester will only be administered the listening and speaking portion) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) If the student is identified as LEP based on performance on the W-APT then English as a Second Language (ESL) staff documents the identification and the appropriate language instructional program goals in the LEP plandocumentation The LEP plandocumentation will also indicate appropriate instructional and testing accommodations for which the student is eligible Once identified as Limited English Proficient the student is required by state and federal law to be annually assessed on the state-identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg
3 No IEP Exists and Other Student Issues Documented If the student is identified as a language minority student and the investigation reveals other student issues (eg a history of special services grade retention significant health issues etc) the W-APT is administered Any accessibility issues are documented in the studentrsquos cumulative folder along with the results The Composite Score is calculated with lowest score(s) from any inaccessible subtest(s) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then ESL staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) If the student is not identified as LEP based on the W-APT results staff will record this in the studentrsquos cumulative folder If the student is identified as LEP a Student Support Team including ESL staff reviews information and makes recommendations concerning appropriate interventions The Student Support Team documents the identification and the eligibility for appropriate testing accommodations The LEP plandocumentation will also indicate the appropriate language instructional program This team will monitor the studentrsquos progress If the student is subsequently referred and identified as eligible for special education under the IDEA the IEP Team including ESL staff will determine the language needs as related to the studentrsquos IEP and documented in the IEP and the LEP plandocumentation Once identified as limited English language proficient the student is required by state and federal law to be annually assessed on the state identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg If the student is referred and identified as eligible for special education under the IDEA then appropriate testing accommodations for the ACCESS administration are noted in the IEP and LEP Plandocumentation
NC Title III Application 2011-2012 Appendices Page 6 of 28
APPENDIX III (cont) Appendix A
NC Title III Application 2011-2012 Appendices Page 7 of 28
APPENDIX III (cont) Appendix B
North Carolina LEP Identification Criteria
W-APT Identification Criteria for Students with a Home Language other than English
Grade Domains W-APT Score Identifies Student as LEP
W-APT Score Indicating Student is NOT LEP
Kindergarten 1st Semester
Speaking
amp Listening
Less than 27 27 or Higher
Kindergarten 2nd Semester
All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 1st Semester All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 2nd Semester All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
Grade 2 -Grade 12 1st and 2nd semester
All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
NC Title III Application 2011-2012 Appendices Page 8 of 28
APPENDIX IV GCS-K-000
NORTH CAROLINA STATE BOARD OF EDUCATION Policy Manual
Policy Identification Priority High Student Performance Category Second Languages Policy ID Number GCS-K-000
Policy Title 16 NCAC 6D0106 Policy establishing guidelines for Limited English Proficient Programs Current Policy Date 06011996
Other Historical Information Previous board dates 09071995
Statutory Reference
Administrative Procedures Act (APA) Reference Number and Category 16 NCAC 6D 0106
0106 LIMITED ENGLISH PROFICIENCY PROGRAMS (a)Each superintendent or his delegate shall (1) identify resources available to serve limited English proficient students (2) coordinate programs and services to these students and their parents in the local school
administrative unit (3) report to the SBE information concerning the identification placement and educational progress of
these students and (4) report funding needs for the provision of services to these students to the SBE (b) LEAs shall report annually to the SBE information including but not limited to the number of students whose primary home language is other than English the number of limited English proficient students identified and receiving services the nature of the services the number of limited English proficient students receiving special education services and services for the academically gifted and data required to be reported to the U S Department of Education (c) A home language survey shall be administered to every student at the time of enrollment and maintained in
the students permanent record LEAs shall then identify and assess every limited English proficient student who needs assistance in order to have access to the units instructional programs Each LEA which identifies limited English proficient students who need assistance shall adopt an effective method of determining the students current level of English proficiency in order to determine what types of assistance are needed The method used may be a combination of the following unless some other method can be effectively substituted
(1) teacher observations (2) teacher interview (3) achievement tests
NC Title III Application 2011-2012 Appendices Page 9 of 28
APPENDIX IV (cont) (4) review of student records (5) parent information (6) proficiency tests (7) English as a second language teacher referral (8) student course grades (9) teacher referral or recommendation (10) criterion-referenced tests (11) grade retention or deficiency report (12) informal assessment or screening (13) portfolio-based assessment and (14) alternative assessments such as cloze and dictation (d) LEAs shall adopt a program or programs for limited English proficient students who need assistance which
have a reasonable chance of allowing students to progress in school The program may be one of the following unless some other method or process can be effectively substituted
(1) English as a second language (ESL) (2) bilingual education (3) programs which provide neither instruction in the native language nor direct instruction in ESL but
which adapt instruction to meet the needs of these students Program entry criteria shall be developed which take into account the students educational background English language proficiency native language proficiency and content area knowledge LEAs shall conduct a program evaluation annually
(e) LEAs shall adopt appropriate evaluative standards for measuring the progress of limited English proficient students in school In order to determine when students no longer need assistance the LEA shall determine the content knowledge and language skills necessary for successful functioning in the regular classroom Then multiple instruments as well as teacher judgment may be used to evaluate English listening and speaking skills English literacy skills and content area knowledge The students shall not be maintained in alternative language programs longer than necessary based on program exit criteria but shall be monitored after exiting such programs for a minimum of six months and additional academic and English language support shall be provided if the students begin to have difficulty
(f)LEAs shall monitor the progress of limited English proficient students in English proficiency and in the BEP When a limited English proficient student is not making progress in school the LEA shall conduct an evaluation of the students program and make modification as needed
(g) Limited English proficient students shall participate in the statewide testing programs in accordance with 16 NCAC 6D 0301 (h) LEAs shall promote the involvement of parents of students of limited English proficiency in the educational
program of their children LEAs shall notify national origin minority group parents of school activities which are called to the attention of other parents and these notices shall be provided in the home language if feasible
(i)LEAs shall ensure that limited English proficient students are not assigned to or excluded from special education programs because of their limited English language proficiency Evaluation placement and notification to parents of students with special needs shall be conducted in accordance with the Individuals with Disabilities Education Act 20 USC sect 1401 et seq and its implementing regulations at 34 CFR Part 300
NC Title III Application 2011-2012 Appendices Page 10 of 28
APPENDIX IV (cont) (j) LEAs shall ensure that limited English proficient students are not categorically excluded from programs for
the academically gifted and other specialized programs or support services such as guidance and counseling due to limited English proficiency
(k)LEAs shall ensure that limited English proficient students are educated in the least segregative manner based on the educational needs of the student and these students shall be included in all aspects of the regular school program in which they can perform satisfactorily
(l)The department shall monitor the progress of LEAs in providing programs to all limited English proficient students using the same procedures and standards as provided in Title I - Helping Disadvantaged Children Meet High Standards 20 USC sect 6301 et seq
(m) The department shall make available a list to all LEAs of teachers licensed in English as a Second Language (ESL) ESL training and add-on ESL licensure for teachers currently licensed in areas other than ESL is an appropriate strategy to obtain qualified staff
(n) Each LEA may consider joint agreements with other LEAs to provide programs to limited English proficient students (o) Each LEA may coordinate services with those available at local community colleges in order to maximize
efficient delivery of services to limited English proficient students and their parents (p) The department shall administer the Teacher Education Program Approval process so as to ensure that all
participants have an opportunity to gain an understanding of and develop strategies for addressing the educational needs of limited English proficient students The Department shall work with IHEs to expand English as a Second Language teacher training programs
History Note Authority GS 115C-12(9)c NC Constitution Article IX Sec 5 20 USC sect1703 Eff June 1
1996
NC Title III Application 2011-2012 Appendices Page 11 of 28
APPENDIX V Selected OCR Guidance
Office of Civil Rights
Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency
httpwwwedgovprintaboutofficeslistocrdocslau1991html
UNITED STATES DEPARTMENT OF EDUCATION WASHINGTON DC 20202
MEMORANDUM
SEP 27 1991
TO OCR Senior Staff
FROM Michael L Williams Assistant Secretary for Civil Rights
SUBJECT Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)
This policy update is primarily designed for use in conducting Lau[1] compliance reviews -- that is compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools programs The policy update adheres to OCRs past determination that Title VI does not mandate any particular program of instruction for LEP students In determining whether the recipient is operating a program for LEP students that meets Title VI requirements OCR will consider whether (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the program succeeds after a legitimate trial in producing results indicating that students language barriers are actually being overcome The policy update also discusses some difficult issues that frequently arise in Lau investigations An appendix to the policy discusses the continuing validity of OCRs use of the Castaneda[2] standard to determine compliance with the Title VI regulation
This document should be read in conjunction with the December 3 1985 guidance document entitled The Office for Civil Rights Title VI Language Minority Compliance Procedures and the May 1970 memorandum to school districts entitled Identification of Discrimination and Denial of Services on the Basis of National origin 35 Fed Reg 11595 (May 1970 Memorandum) It does not supersede either document[3] These two documents are attached for your convenience
Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCRs Title VI Lau policy In Part I more specific standards are enunciated for staffing requirements exit criteria and program evaluation Policy issues related to special education programs giftedtalented programs and other special programs are also discussed Part II of the policy update describes OCRs policy with regard to segregation of LEP students
NC Title III Application 2011-2012 Appendices Page 12 of 28
APPENDIX V (cont) The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974
With the possible exception of Castaneda which provides a common sense analytical framework for analyzing a districts program for LEP students that has been adopted by OCR and Keyes v School Dist No 1 which
applied the Castaneda principles to the Denver Public Schools most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCRs practical legal and policy experience in the field In that regard the issues discussed herein and the policy decisions reached reflect a careful and thorough examination of Lau case investigations carried out by OCRs regional offices over the past few years comments from the regional offices on a draft version of the policy and lengthy discussions on the issues with some of OCRs most experienced investigators Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate
I Additional guidance for applying the May 1970 and December 1985 memoranda
The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI (1) the need for an alternative language program for LEP students and (2) the adequacy of the program chosen by the recipient Issues related to the adequacy of the program chosen by the recipient will be discussed first as they arise more often in Lau investigations Of course the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipients educational program
A Adequacy of Program
This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipients efforts to provide equal educational opportunities for LEP students
1 Soundness of educational approach
Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field or at least theories that are recognized as legitimate educational strategies 648 F 2d at 1009 Some approaches that fall under this category include transitional bilingual education bilingualbicultural education structured immersion developmental bilingual education and English as a Second Language (ESL) A district that is using any of these approaches has complied with the first requirement of Castaneda If a district is using a different approach it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy
2 Proper Implementation
Castaneda requires that the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school 648 F 2d at 1010 Some problematic implementation issues have included staffing requirements for programs exit criteria and access to programs such as giftedtalented programs These issues are discussed below
NC Title III Application 2011-2012 Appendices Page 13 of 28
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX III Home Language Survey Process
North Carolina Procedures for the Identification of Limited English Proficient Students
The North Carolina State Board of Education policy GCS-K-000 (16 NCAC 6D0106) requires that a Home Language Survey (HLS) be administered to all students upon initial enrollment The HLS is used to help determine if the student is a language minority student (The Home Language Survey Process is shown at the end of this document as Appendix A) HLS ADMINISTRATION Upon initial enrollment in a local education agency (LEA) all students are guided through the Home Language Survey process and have a completed HLS placed on file The state has provided a sample HLS at httpeslncwiseowlorgresourcesdocuments which has suggestions for the type of questions to be asked such as
1 What is the first language the student learned to speak 2 What language does the student speak most often 3 What language is most often spoken in the home
If review of the survey shows no language other than English the student is not a language minority student The completed HLS is filed in the studentrsquos cumulative folder Responses to any of the questions on the HLS indicating languages other than English should prompt the school to investigate and determine the studentrsquos actual home language1 HLS INVESTIGATION The school district Limited English Proficiency (LEP) coordinatordesignee should interview the student and hisher parentguardian to clarify the home language of the student Some sample probing questions are
1 When the child was young and language was developing what language(s) waswere spoken to the child
2 How is the language (other than English) used in the home 3 Are there other student issues (eg significant health issues academic gaps grade retentions
special services etc) Studentrsquos Dominant Language is English If the process shows the studentrsquos dominant language is English then the student is not a language minority student The completed HLS is filed in the studentrsquos cumulative folder Studentrsquos Dominant Language is a Language Other Than English If the investigation reveals that the dominant home language is a language other than English that language is confirmed on the HLS The survey is filed in the studentrsquos cumulative folder and the student
1 Home language is the language normally used by the individual or normally used by the parents of the child or youth Trained school personnel must research this information to determine and document the studentrsquos actual home language at the time of entry into US schools
NC Title III Application 2011-2012 Appendices Page 4 of 28
APPENDIX III (cont) is scheduled for administration of the WIDA Access Placement Test (W-APT) trade according to one of the three procedures described below HLS Completed in Another LEA If an HLS was completed in another North Carolina public school prior to enrolling at the current school then staff should compare the responses on the two forms for consistency If inconsistencies are found the staff will investigate and determine the home language and eligibility of the student for ESL services as documented by the investigation Keep in mind that during any investigation the LEA retains the responsibility to ensure that the student has an equal opportunity to have hisher English language and academic needs met If the investigation documentation indicates the student is a language minority student and if no W-APT has been previously administered then the student is scheduled for W-APT administration according to one of the three procedures described below CONSIDERATIONS FOR W-APT ADMINISTRATION
1 IEP Exists (Other Student Issues Documented) If the student is identified as a language minority student and the investigation reveals that the student has an existing Individualized Education Program (IEP) then the IEP Team including ESL staff reviews the IEP The W-APT is administered with any testing accommodations documented in the studentrsquos current IEP The Composite Score is calculated with lowest score(s) from any inaccessible subtest(s) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then ESL staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) W-APT results are reported to the IEP Team If the student is not LEP then the IEP Team indicates this under the ldquoConsideration of Special Factorsrdquo in the IEP If the student is identified as LEP the IEP Team determines language needs as related to the IEP (eg collaboration training materials and native language support) The LEP identification and eligibility for testing accommodations are noted in both the IEP and LEP plandocumentation Once identified as limited English language proficient the student is required by state and federal law to be annually assessed on the state identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg Appropriate testing accommodations for the ACCESS administration are noted in both the IEP and LEP plandocumentation
2 Regular Procedure (No Other Student Issues Documented) If the student is identified as a language minority heshe is administered the state-identified English language proficiency screenertest to determine potential LEP identification According to State Board of Education policy GCS-A-011 to be identified as limited English proficient students must be assessed using the W-APT If a language minority student enrolls at the beginning of the school year he or she must be administered all four subtests (listening speaking reading and writing) of the W-APT and the parent must be notified within thirty (30) calendar days of enrollment of the studentrsquos eligibility for ESL services If a language minority student enrolls after the beginning of the school year he or she must be administered all four subtests (listening speaking reading and writing) of the W-APT and the parent
NC Title III Application 2011-2012 Appendices Page 5 of 28
APPENDIX III (cont) must be notified within 14 calendar days of enrollment (Note Kindergarten students enrolling at or during the first semester will only be administered the listening and speaking portion) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) If the student is identified as LEP based on performance on the W-APT then English as a Second Language (ESL) staff documents the identification and the appropriate language instructional program goals in the LEP plandocumentation The LEP plandocumentation will also indicate appropriate instructional and testing accommodations for which the student is eligible Once identified as Limited English Proficient the student is required by state and federal law to be annually assessed on the state-identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg
3 No IEP Exists and Other Student Issues Documented If the student is identified as a language minority student and the investigation reveals other student issues (eg a history of special services grade retention significant health issues etc) the W-APT is administered Any accessibility issues are documented in the studentrsquos cumulative folder along with the results The Composite Score is calculated with lowest score(s) from any inaccessible subtest(s) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then ESL staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) If the student is not identified as LEP based on the W-APT results staff will record this in the studentrsquos cumulative folder If the student is identified as LEP a Student Support Team including ESL staff reviews information and makes recommendations concerning appropriate interventions The Student Support Team documents the identification and the eligibility for appropriate testing accommodations The LEP plandocumentation will also indicate the appropriate language instructional program This team will monitor the studentrsquos progress If the student is subsequently referred and identified as eligible for special education under the IDEA the IEP Team including ESL staff will determine the language needs as related to the studentrsquos IEP and documented in the IEP and the LEP plandocumentation Once identified as limited English language proficient the student is required by state and federal law to be annually assessed on the state identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg If the student is referred and identified as eligible for special education under the IDEA then appropriate testing accommodations for the ACCESS administration are noted in the IEP and LEP Plandocumentation
NC Title III Application 2011-2012 Appendices Page 6 of 28
APPENDIX III (cont) Appendix A
NC Title III Application 2011-2012 Appendices Page 7 of 28
APPENDIX III (cont) Appendix B
North Carolina LEP Identification Criteria
W-APT Identification Criteria for Students with a Home Language other than English
Grade Domains W-APT Score Identifies Student as LEP
W-APT Score Indicating Student is NOT LEP
Kindergarten 1st Semester
Speaking
amp Listening
Less than 27 27 or Higher
Kindergarten 2nd Semester
All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 1st Semester All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 2nd Semester All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
Grade 2 -Grade 12 1st and 2nd semester
All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
NC Title III Application 2011-2012 Appendices Page 8 of 28
APPENDIX IV GCS-K-000
NORTH CAROLINA STATE BOARD OF EDUCATION Policy Manual
Policy Identification Priority High Student Performance Category Second Languages Policy ID Number GCS-K-000
Policy Title 16 NCAC 6D0106 Policy establishing guidelines for Limited English Proficient Programs Current Policy Date 06011996
Other Historical Information Previous board dates 09071995
Statutory Reference
Administrative Procedures Act (APA) Reference Number and Category 16 NCAC 6D 0106
0106 LIMITED ENGLISH PROFICIENCY PROGRAMS (a)Each superintendent or his delegate shall (1) identify resources available to serve limited English proficient students (2) coordinate programs and services to these students and their parents in the local school
administrative unit (3) report to the SBE information concerning the identification placement and educational progress of
these students and (4) report funding needs for the provision of services to these students to the SBE (b) LEAs shall report annually to the SBE information including but not limited to the number of students whose primary home language is other than English the number of limited English proficient students identified and receiving services the nature of the services the number of limited English proficient students receiving special education services and services for the academically gifted and data required to be reported to the U S Department of Education (c) A home language survey shall be administered to every student at the time of enrollment and maintained in
the students permanent record LEAs shall then identify and assess every limited English proficient student who needs assistance in order to have access to the units instructional programs Each LEA which identifies limited English proficient students who need assistance shall adopt an effective method of determining the students current level of English proficiency in order to determine what types of assistance are needed The method used may be a combination of the following unless some other method can be effectively substituted
(1) teacher observations (2) teacher interview (3) achievement tests
NC Title III Application 2011-2012 Appendices Page 9 of 28
APPENDIX IV (cont) (4) review of student records (5) parent information (6) proficiency tests (7) English as a second language teacher referral (8) student course grades (9) teacher referral or recommendation (10) criterion-referenced tests (11) grade retention or deficiency report (12) informal assessment or screening (13) portfolio-based assessment and (14) alternative assessments such as cloze and dictation (d) LEAs shall adopt a program or programs for limited English proficient students who need assistance which
have a reasonable chance of allowing students to progress in school The program may be one of the following unless some other method or process can be effectively substituted
(1) English as a second language (ESL) (2) bilingual education (3) programs which provide neither instruction in the native language nor direct instruction in ESL but
which adapt instruction to meet the needs of these students Program entry criteria shall be developed which take into account the students educational background English language proficiency native language proficiency and content area knowledge LEAs shall conduct a program evaluation annually
(e) LEAs shall adopt appropriate evaluative standards for measuring the progress of limited English proficient students in school In order to determine when students no longer need assistance the LEA shall determine the content knowledge and language skills necessary for successful functioning in the regular classroom Then multiple instruments as well as teacher judgment may be used to evaluate English listening and speaking skills English literacy skills and content area knowledge The students shall not be maintained in alternative language programs longer than necessary based on program exit criteria but shall be monitored after exiting such programs for a minimum of six months and additional academic and English language support shall be provided if the students begin to have difficulty
(f)LEAs shall monitor the progress of limited English proficient students in English proficiency and in the BEP When a limited English proficient student is not making progress in school the LEA shall conduct an evaluation of the students program and make modification as needed
(g) Limited English proficient students shall participate in the statewide testing programs in accordance with 16 NCAC 6D 0301 (h) LEAs shall promote the involvement of parents of students of limited English proficiency in the educational
program of their children LEAs shall notify national origin minority group parents of school activities which are called to the attention of other parents and these notices shall be provided in the home language if feasible
(i)LEAs shall ensure that limited English proficient students are not assigned to or excluded from special education programs because of their limited English language proficiency Evaluation placement and notification to parents of students with special needs shall be conducted in accordance with the Individuals with Disabilities Education Act 20 USC sect 1401 et seq and its implementing regulations at 34 CFR Part 300
NC Title III Application 2011-2012 Appendices Page 10 of 28
APPENDIX IV (cont) (j) LEAs shall ensure that limited English proficient students are not categorically excluded from programs for
the academically gifted and other specialized programs or support services such as guidance and counseling due to limited English proficiency
(k)LEAs shall ensure that limited English proficient students are educated in the least segregative manner based on the educational needs of the student and these students shall be included in all aspects of the regular school program in which they can perform satisfactorily
(l)The department shall monitor the progress of LEAs in providing programs to all limited English proficient students using the same procedures and standards as provided in Title I - Helping Disadvantaged Children Meet High Standards 20 USC sect 6301 et seq
(m) The department shall make available a list to all LEAs of teachers licensed in English as a Second Language (ESL) ESL training and add-on ESL licensure for teachers currently licensed in areas other than ESL is an appropriate strategy to obtain qualified staff
(n) Each LEA may consider joint agreements with other LEAs to provide programs to limited English proficient students (o) Each LEA may coordinate services with those available at local community colleges in order to maximize
efficient delivery of services to limited English proficient students and their parents (p) The department shall administer the Teacher Education Program Approval process so as to ensure that all
participants have an opportunity to gain an understanding of and develop strategies for addressing the educational needs of limited English proficient students The Department shall work with IHEs to expand English as a Second Language teacher training programs
History Note Authority GS 115C-12(9)c NC Constitution Article IX Sec 5 20 USC sect1703 Eff June 1
1996
NC Title III Application 2011-2012 Appendices Page 11 of 28
APPENDIX V Selected OCR Guidance
Office of Civil Rights
Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency
httpwwwedgovprintaboutofficeslistocrdocslau1991html
UNITED STATES DEPARTMENT OF EDUCATION WASHINGTON DC 20202
MEMORANDUM
SEP 27 1991
TO OCR Senior Staff
FROM Michael L Williams Assistant Secretary for Civil Rights
SUBJECT Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)
This policy update is primarily designed for use in conducting Lau[1] compliance reviews -- that is compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools programs The policy update adheres to OCRs past determination that Title VI does not mandate any particular program of instruction for LEP students In determining whether the recipient is operating a program for LEP students that meets Title VI requirements OCR will consider whether (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the program succeeds after a legitimate trial in producing results indicating that students language barriers are actually being overcome The policy update also discusses some difficult issues that frequently arise in Lau investigations An appendix to the policy discusses the continuing validity of OCRs use of the Castaneda[2] standard to determine compliance with the Title VI regulation
This document should be read in conjunction with the December 3 1985 guidance document entitled The Office for Civil Rights Title VI Language Minority Compliance Procedures and the May 1970 memorandum to school districts entitled Identification of Discrimination and Denial of Services on the Basis of National origin 35 Fed Reg 11595 (May 1970 Memorandum) It does not supersede either document[3] These two documents are attached for your convenience
Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCRs Title VI Lau policy In Part I more specific standards are enunciated for staffing requirements exit criteria and program evaluation Policy issues related to special education programs giftedtalented programs and other special programs are also discussed Part II of the policy update describes OCRs policy with regard to segregation of LEP students
NC Title III Application 2011-2012 Appendices Page 12 of 28
APPENDIX V (cont) The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974
With the possible exception of Castaneda which provides a common sense analytical framework for analyzing a districts program for LEP students that has been adopted by OCR and Keyes v School Dist No 1 which
applied the Castaneda principles to the Denver Public Schools most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCRs practical legal and policy experience in the field In that regard the issues discussed herein and the policy decisions reached reflect a careful and thorough examination of Lau case investigations carried out by OCRs regional offices over the past few years comments from the regional offices on a draft version of the policy and lengthy discussions on the issues with some of OCRs most experienced investigators Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate
I Additional guidance for applying the May 1970 and December 1985 memoranda
The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI (1) the need for an alternative language program for LEP students and (2) the adequacy of the program chosen by the recipient Issues related to the adequacy of the program chosen by the recipient will be discussed first as they arise more often in Lau investigations Of course the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipients educational program
A Adequacy of Program
This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipients efforts to provide equal educational opportunities for LEP students
1 Soundness of educational approach
Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field or at least theories that are recognized as legitimate educational strategies 648 F 2d at 1009 Some approaches that fall under this category include transitional bilingual education bilingualbicultural education structured immersion developmental bilingual education and English as a Second Language (ESL) A district that is using any of these approaches has complied with the first requirement of Castaneda If a district is using a different approach it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy
2 Proper Implementation
Castaneda requires that the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school 648 F 2d at 1010 Some problematic implementation issues have included staffing requirements for programs exit criteria and access to programs such as giftedtalented programs These issues are discussed below
NC Title III Application 2011-2012 Appendices Page 13 of 28
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX III (cont) is scheduled for administration of the WIDA Access Placement Test (W-APT) trade according to one of the three procedures described below HLS Completed in Another LEA If an HLS was completed in another North Carolina public school prior to enrolling at the current school then staff should compare the responses on the two forms for consistency If inconsistencies are found the staff will investigate and determine the home language and eligibility of the student for ESL services as documented by the investigation Keep in mind that during any investigation the LEA retains the responsibility to ensure that the student has an equal opportunity to have hisher English language and academic needs met If the investigation documentation indicates the student is a language minority student and if no W-APT has been previously administered then the student is scheduled for W-APT administration according to one of the three procedures described below CONSIDERATIONS FOR W-APT ADMINISTRATION
1 IEP Exists (Other Student Issues Documented) If the student is identified as a language minority student and the investigation reveals that the student has an existing Individualized Education Program (IEP) then the IEP Team including ESL staff reviews the IEP The W-APT is administered with any testing accommodations documented in the studentrsquos current IEP The Composite Score is calculated with lowest score(s) from any inaccessible subtest(s) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then ESL staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) W-APT results are reported to the IEP Team If the student is not LEP then the IEP Team indicates this under the ldquoConsideration of Special Factorsrdquo in the IEP If the student is identified as LEP the IEP Team determines language needs as related to the IEP (eg collaboration training materials and native language support) The LEP identification and eligibility for testing accommodations are noted in both the IEP and LEP plandocumentation Once identified as limited English language proficient the student is required by state and federal law to be annually assessed on the state identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg Appropriate testing accommodations for the ACCESS administration are noted in both the IEP and LEP plandocumentation
2 Regular Procedure (No Other Student Issues Documented) If the student is identified as a language minority heshe is administered the state-identified English language proficiency screenertest to determine potential LEP identification According to State Board of Education policy GCS-A-011 to be identified as limited English proficient students must be assessed using the W-APT If a language minority student enrolls at the beginning of the school year he or she must be administered all four subtests (listening speaking reading and writing) of the W-APT and the parent must be notified within thirty (30) calendar days of enrollment of the studentrsquos eligibility for ESL services If a language minority student enrolls after the beginning of the school year he or she must be administered all four subtests (listening speaking reading and writing) of the W-APT and the parent
NC Title III Application 2011-2012 Appendices Page 5 of 28
APPENDIX III (cont) must be notified within 14 calendar days of enrollment (Note Kindergarten students enrolling at or during the first semester will only be administered the listening and speaking portion) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) If the student is identified as LEP based on performance on the W-APT then English as a Second Language (ESL) staff documents the identification and the appropriate language instructional program goals in the LEP plandocumentation The LEP plandocumentation will also indicate appropriate instructional and testing accommodations for which the student is eligible Once identified as Limited English Proficient the student is required by state and federal law to be annually assessed on the state-identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg
3 No IEP Exists and Other Student Issues Documented If the student is identified as a language minority student and the investigation reveals other student issues (eg a history of special services grade retention significant health issues etc) the W-APT is administered Any accessibility issues are documented in the studentrsquos cumulative folder along with the results The Composite Score is calculated with lowest score(s) from any inaccessible subtest(s) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then ESL staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) If the student is not identified as LEP based on the W-APT results staff will record this in the studentrsquos cumulative folder If the student is identified as LEP a Student Support Team including ESL staff reviews information and makes recommendations concerning appropriate interventions The Student Support Team documents the identification and the eligibility for appropriate testing accommodations The LEP plandocumentation will also indicate the appropriate language instructional program This team will monitor the studentrsquos progress If the student is subsequently referred and identified as eligible for special education under the IDEA the IEP Team including ESL staff will determine the language needs as related to the studentrsquos IEP and documented in the IEP and the LEP plandocumentation Once identified as limited English language proficient the student is required by state and federal law to be annually assessed on the state identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg If the student is referred and identified as eligible for special education under the IDEA then appropriate testing accommodations for the ACCESS administration are noted in the IEP and LEP Plandocumentation
NC Title III Application 2011-2012 Appendices Page 6 of 28
APPENDIX III (cont) Appendix A
NC Title III Application 2011-2012 Appendices Page 7 of 28
APPENDIX III (cont) Appendix B
North Carolina LEP Identification Criteria
W-APT Identification Criteria for Students with a Home Language other than English
Grade Domains W-APT Score Identifies Student as LEP
W-APT Score Indicating Student is NOT LEP
Kindergarten 1st Semester
Speaking
amp Listening
Less than 27 27 or Higher
Kindergarten 2nd Semester
All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 1st Semester All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 2nd Semester All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
Grade 2 -Grade 12 1st and 2nd semester
All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
NC Title III Application 2011-2012 Appendices Page 8 of 28
APPENDIX IV GCS-K-000
NORTH CAROLINA STATE BOARD OF EDUCATION Policy Manual
Policy Identification Priority High Student Performance Category Second Languages Policy ID Number GCS-K-000
Policy Title 16 NCAC 6D0106 Policy establishing guidelines for Limited English Proficient Programs Current Policy Date 06011996
Other Historical Information Previous board dates 09071995
Statutory Reference
Administrative Procedures Act (APA) Reference Number and Category 16 NCAC 6D 0106
0106 LIMITED ENGLISH PROFICIENCY PROGRAMS (a)Each superintendent or his delegate shall (1) identify resources available to serve limited English proficient students (2) coordinate programs and services to these students and their parents in the local school
administrative unit (3) report to the SBE information concerning the identification placement and educational progress of
these students and (4) report funding needs for the provision of services to these students to the SBE (b) LEAs shall report annually to the SBE information including but not limited to the number of students whose primary home language is other than English the number of limited English proficient students identified and receiving services the nature of the services the number of limited English proficient students receiving special education services and services for the academically gifted and data required to be reported to the U S Department of Education (c) A home language survey shall be administered to every student at the time of enrollment and maintained in
the students permanent record LEAs shall then identify and assess every limited English proficient student who needs assistance in order to have access to the units instructional programs Each LEA which identifies limited English proficient students who need assistance shall adopt an effective method of determining the students current level of English proficiency in order to determine what types of assistance are needed The method used may be a combination of the following unless some other method can be effectively substituted
(1) teacher observations (2) teacher interview (3) achievement tests
NC Title III Application 2011-2012 Appendices Page 9 of 28
APPENDIX IV (cont) (4) review of student records (5) parent information (6) proficiency tests (7) English as a second language teacher referral (8) student course grades (9) teacher referral or recommendation (10) criterion-referenced tests (11) grade retention or deficiency report (12) informal assessment or screening (13) portfolio-based assessment and (14) alternative assessments such as cloze and dictation (d) LEAs shall adopt a program or programs for limited English proficient students who need assistance which
have a reasonable chance of allowing students to progress in school The program may be one of the following unless some other method or process can be effectively substituted
(1) English as a second language (ESL) (2) bilingual education (3) programs which provide neither instruction in the native language nor direct instruction in ESL but
which adapt instruction to meet the needs of these students Program entry criteria shall be developed which take into account the students educational background English language proficiency native language proficiency and content area knowledge LEAs shall conduct a program evaluation annually
(e) LEAs shall adopt appropriate evaluative standards for measuring the progress of limited English proficient students in school In order to determine when students no longer need assistance the LEA shall determine the content knowledge and language skills necessary for successful functioning in the regular classroom Then multiple instruments as well as teacher judgment may be used to evaluate English listening and speaking skills English literacy skills and content area knowledge The students shall not be maintained in alternative language programs longer than necessary based on program exit criteria but shall be monitored after exiting such programs for a minimum of six months and additional academic and English language support shall be provided if the students begin to have difficulty
(f)LEAs shall monitor the progress of limited English proficient students in English proficiency and in the BEP When a limited English proficient student is not making progress in school the LEA shall conduct an evaluation of the students program and make modification as needed
(g) Limited English proficient students shall participate in the statewide testing programs in accordance with 16 NCAC 6D 0301 (h) LEAs shall promote the involvement of parents of students of limited English proficiency in the educational
program of their children LEAs shall notify national origin minority group parents of school activities which are called to the attention of other parents and these notices shall be provided in the home language if feasible
(i)LEAs shall ensure that limited English proficient students are not assigned to or excluded from special education programs because of their limited English language proficiency Evaluation placement and notification to parents of students with special needs shall be conducted in accordance with the Individuals with Disabilities Education Act 20 USC sect 1401 et seq and its implementing regulations at 34 CFR Part 300
NC Title III Application 2011-2012 Appendices Page 10 of 28
APPENDIX IV (cont) (j) LEAs shall ensure that limited English proficient students are not categorically excluded from programs for
the academically gifted and other specialized programs or support services such as guidance and counseling due to limited English proficiency
(k)LEAs shall ensure that limited English proficient students are educated in the least segregative manner based on the educational needs of the student and these students shall be included in all aspects of the regular school program in which they can perform satisfactorily
(l)The department shall monitor the progress of LEAs in providing programs to all limited English proficient students using the same procedures and standards as provided in Title I - Helping Disadvantaged Children Meet High Standards 20 USC sect 6301 et seq
(m) The department shall make available a list to all LEAs of teachers licensed in English as a Second Language (ESL) ESL training and add-on ESL licensure for teachers currently licensed in areas other than ESL is an appropriate strategy to obtain qualified staff
(n) Each LEA may consider joint agreements with other LEAs to provide programs to limited English proficient students (o) Each LEA may coordinate services with those available at local community colleges in order to maximize
efficient delivery of services to limited English proficient students and their parents (p) The department shall administer the Teacher Education Program Approval process so as to ensure that all
participants have an opportunity to gain an understanding of and develop strategies for addressing the educational needs of limited English proficient students The Department shall work with IHEs to expand English as a Second Language teacher training programs
History Note Authority GS 115C-12(9)c NC Constitution Article IX Sec 5 20 USC sect1703 Eff June 1
1996
NC Title III Application 2011-2012 Appendices Page 11 of 28
APPENDIX V Selected OCR Guidance
Office of Civil Rights
Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency
httpwwwedgovprintaboutofficeslistocrdocslau1991html
UNITED STATES DEPARTMENT OF EDUCATION WASHINGTON DC 20202
MEMORANDUM
SEP 27 1991
TO OCR Senior Staff
FROM Michael L Williams Assistant Secretary for Civil Rights
SUBJECT Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)
This policy update is primarily designed for use in conducting Lau[1] compliance reviews -- that is compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools programs The policy update adheres to OCRs past determination that Title VI does not mandate any particular program of instruction for LEP students In determining whether the recipient is operating a program for LEP students that meets Title VI requirements OCR will consider whether (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the program succeeds after a legitimate trial in producing results indicating that students language barriers are actually being overcome The policy update also discusses some difficult issues that frequently arise in Lau investigations An appendix to the policy discusses the continuing validity of OCRs use of the Castaneda[2] standard to determine compliance with the Title VI regulation
This document should be read in conjunction with the December 3 1985 guidance document entitled The Office for Civil Rights Title VI Language Minority Compliance Procedures and the May 1970 memorandum to school districts entitled Identification of Discrimination and Denial of Services on the Basis of National origin 35 Fed Reg 11595 (May 1970 Memorandum) It does not supersede either document[3] These two documents are attached for your convenience
Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCRs Title VI Lau policy In Part I more specific standards are enunciated for staffing requirements exit criteria and program evaluation Policy issues related to special education programs giftedtalented programs and other special programs are also discussed Part II of the policy update describes OCRs policy with regard to segregation of LEP students
NC Title III Application 2011-2012 Appendices Page 12 of 28
APPENDIX V (cont) The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974
With the possible exception of Castaneda which provides a common sense analytical framework for analyzing a districts program for LEP students that has been adopted by OCR and Keyes v School Dist No 1 which
applied the Castaneda principles to the Denver Public Schools most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCRs practical legal and policy experience in the field In that regard the issues discussed herein and the policy decisions reached reflect a careful and thorough examination of Lau case investigations carried out by OCRs regional offices over the past few years comments from the regional offices on a draft version of the policy and lengthy discussions on the issues with some of OCRs most experienced investigators Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate
I Additional guidance for applying the May 1970 and December 1985 memoranda
The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI (1) the need for an alternative language program for LEP students and (2) the adequacy of the program chosen by the recipient Issues related to the adequacy of the program chosen by the recipient will be discussed first as they arise more often in Lau investigations Of course the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipients educational program
A Adequacy of Program
This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipients efforts to provide equal educational opportunities for LEP students
1 Soundness of educational approach
Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field or at least theories that are recognized as legitimate educational strategies 648 F 2d at 1009 Some approaches that fall under this category include transitional bilingual education bilingualbicultural education structured immersion developmental bilingual education and English as a Second Language (ESL) A district that is using any of these approaches has complied with the first requirement of Castaneda If a district is using a different approach it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy
2 Proper Implementation
Castaneda requires that the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school 648 F 2d at 1010 Some problematic implementation issues have included staffing requirements for programs exit criteria and access to programs such as giftedtalented programs These issues are discussed below
NC Title III Application 2011-2012 Appendices Page 13 of 28
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX III (cont) must be notified within 14 calendar days of enrollment (Note Kindergarten students enrolling at or during the first semester will only be administered the listening and speaking portion) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) If the student is identified as LEP based on performance on the W-APT then English as a Second Language (ESL) staff documents the identification and the appropriate language instructional program goals in the LEP plandocumentation The LEP plandocumentation will also indicate appropriate instructional and testing accommodations for which the student is eligible Once identified as Limited English Proficient the student is required by state and federal law to be annually assessed on the state-identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg
3 No IEP Exists and Other Student Issues Documented If the student is identified as a language minority student and the investigation reveals other student issues (eg a history of special services grade retention significant health issues etc) the W-APT is administered Any accessibility issues are documented in the studentrsquos cumulative folder along with the results The Composite Score is calculated with lowest score(s) from any inaccessible subtest(s) If it is determined that the student was administered an English language proficiency test while enrolled in the previous school then ESL staff must obtain test results from the other school to determine the studentrsquos LEP status ESL staff is to confirm the studentrsquos LEP status in the state LEP Consolidated Federal Data Collection (CFDC) (See Appendix B for LEP identification cut scores) If the student is not identified as LEP based on the W-APT results staff will record this in the studentrsquos cumulative folder If the student is identified as LEP a Student Support Team including ESL staff reviews information and makes recommendations concerning appropriate interventions The Student Support Team documents the identification and the eligibility for appropriate testing accommodations The LEP plandocumentation will also indicate the appropriate language instructional program This team will monitor the studentrsquos progress If the student is subsequently referred and identified as eligible for special education under the IDEA the IEP Team including ESL staff will determine the language needs as related to the studentrsquos IEP and documented in the IEP and the LEP plandocumentation Once identified as limited English language proficient the student is required by state and federal law to be annually assessed on the state identified English language proficiency test until the student meets the exit criteria The test currently used by North Carolina for annual assessment is the Assessing Comprehension and Communication in English State-to-State for English Language Learners or the ACCESS for ELLs reg If the student is referred and identified as eligible for special education under the IDEA then appropriate testing accommodations for the ACCESS administration are noted in the IEP and LEP Plandocumentation
NC Title III Application 2011-2012 Appendices Page 6 of 28
APPENDIX III (cont) Appendix A
NC Title III Application 2011-2012 Appendices Page 7 of 28
APPENDIX III (cont) Appendix B
North Carolina LEP Identification Criteria
W-APT Identification Criteria for Students with a Home Language other than English
Grade Domains W-APT Score Identifies Student as LEP
W-APT Score Indicating Student is NOT LEP
Kindergarten 1st Semester
Speaking
amp Listening
Less than 27 27 or Higher
Kindergarten 2nd Semester
All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 1st Semester All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 2nd Semester All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
Grade 2 -Grade 12 1st and 2nd semester
All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
NC Title III Application 2011-2012 Appendices Page 8 of 28
APPENDIX IV GCS-K-000
NORTH CAROLINA STATE BOARD OF EDUCATION Policy Manual
Policy Identification Priority High Student Performance Category Second Languages Policy ID Number GCS-K-000
Policy Title 16 NCAC 6D0106 Policy establishing guidelines for Limited English Proficient Programs Current Policy Date 06011996
Other Historical Information Previous board dates 09071995
Statutory Reference
Administrative Procedures Act (APA) Reference Number and Category 16 NCAC 6D 0106
0106 LIMITED ENGLISH PROFICIENCY PROGRAMS (a)Each superintendent or his delegate shall (1) identify resources available to serve limited English proficient students (2) coordinate programs and services to these students and their parents in the local school
administrative unit (3) report to the SBE information concerning the identification placement and educational progress of
these students and (4) report funding needs for the provision of services to these students to the SBE (b) LEAs shall report annually to the SBE information including but not limited to the number of students whose primary home language is other than English the number of limited English proficient students identified and receiving services the nature of the services the number of limited English proficient students receiving special education services and services for the academically gifted and data required to be reported to the U S Department of Education (c) A home language survey shall be administered to every student at the time of enrollment and maintained in
the students permanent record LEAs shall then identify and assess every limited English proficient student who needs assistance in order to have access to the units instructional programs Each LEA which identifies limited English proficient students who need assistance shall adopt an effective method of determining the students current level of English proficiency in order to determine what types of assistance are needed The method used may be a combination of the following unless some other method can be effectively substituted
(1) teacher observations (2) teacher interview (3) achievement tests
NC Title III Application 2011-2012 Appendices Page 9 of 28
APPENDIX IV (cont) (4) review of student records (5) parent information (6) proficiency tests (7) English as a second language teacher referral (8) student course grades (9) teacher referral or recommendation (10) criterion-referenced tests (11) grade retention or deficiency report (12) informal assessment or screening (13) portfolio-based assessment and (14) alternative assessments such as cloze and dictation (d) LEAs shall adopt a program or programs for limited English proficient students who need assistance which
have a reasonable chance of allowing students to progress in school The program may be one of the following unless some other method or process can be effectively substituted
(1) English as a second language (ESL) (2) bilingual education (3) programs which provide neither instruction in the native language nor direct instruction in ESL but
which adapt instruction to meet the needs of these students Program entry criteria shall be developed which take into account the students educational background English language proficiency native language proficiency and content area knowledge LEAs shall conduct a program evaluation annually
(e) LEAs shall adopt appropriate evaluative standards for measuring the progress of limited English proficient students in school In order to determine when students no longer need assistance the LEA shall determine the content knowledge and language skills necessary for successful functioning in the regular classroom Then multiple instruments as well as teacher judgment may be used to evaluate English listening and speaking skills English literacy skills and content area knowledge The students shall not be maintained in alternative language programs longer than necessary based on program exit criteria but shall be monitored after exiting such programs for a minimum of six months and additional academic and English language support shall be provided if the students begin to have difficulty
(f)LEAs shall monitor the progress of limited English proficient students in English proficiency and in the BEP When a limited English proficient student is not making progress in school the LEA shall conduct an evaluation of the students program and make modification as needed
(g) Limited English proficient students shall participate in the statewide testing programs in accordance with 16 NCAC 6D 0301 (h) LEAs shall promote the involvement of parents of students of limited English proficiency in the educational
program of their children LEAs shall notify national origin minority group parents of school activities which are called to the attention of other parents and these notices shall be provided in the home language if feasible
(i)LEAs shall ensure that limited English proficient students are not assigned to or excluded from special education programs because of their limited English language proficiency Evaluation placement and notification to parents of students with special needs shall be conducted in accordance with the Individuals with Disabilities Education Act 20 USC sect 1401 et seq and its implementing regulations at 34 CFR Part 300
NC Title III Application 2011-2012 Appendices Page 10 of 28
APPENDIX IV (cont) (j) LEAs shall ensure that limited English proficient students are not categorically excluded from programs for
the academically gifted and other specialized programs or support services such as guidance and counseling due to limited English proficiency
(k)LEAs shall ensure that limited English proficient students are educated in the least segregative manner based on the educational needs of the student and these students shall be included in all aspects of the regular school program in which they can perform satisfactorily
(l)The department shall monitor the progress of LEAs in providing programs to all limited English proficient students using the same procedures and standards as provided in Title I - Helping Disadvantaged Children Meet High Standards 20 USC sect 6301 et seq
(m) The department shall make available a list to all LEAs of teachers licensed in English as a Second Language (ESL) ESL training and add-on ESL licensure for teachers currently licensed in areas other than ESL is an appropriate strategy to obtain qualified staff
(n) Each LEA may consider joint agreements with other LEAs to provide programs to limited English proficient students (o) Each LEA may coordinate services with those available at local community colleges in order to maximize
efficient delivery of services to limited English proficient students and their parents (p) The department shall administer the Teacher Education Program Approval process so as to ensure that all
participants have an opportunity to gain an understanding of and develop strategies for addressing the educational needs of limited English proficient students The Department shall work with IHEs to expand English as a Second Language teacher training programs
History Note Authority GS 115C-12(9)c NC Constitution Article IX Sec 5 20 USC sect1703 Eff June 1
1996
NC Title III Application 2011-2012 Appendices Page 11 of 28
APPENDIX V Selected OCR Guidance
Office of Civil Rights
Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency
httpwwwedgovprintaboutofficeslistocrdocslau1991html
UNITED STATES DEPARTMENT OF EDUCATION WASHINGTON DC 20202
MEMORANDUM
SEP 27 1991
TO OCR Senior Staff
FROM Michael L Williams Assistant Secretary for Civil Rights
SUBJECT Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)
This policy update is primarily designed for use in conducting Lau[1] compliance reviews -- that is compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools programs The policy update adheres to OCRs past determination that Title VI does not mandate any particular program of instruction for LEP students In determining whether the recipient is operating a program for LEP students that meets Title VI requirements OCR will consider whether (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the program succeeds after a legitimate trial in producing results indicating that students language barriers are actually being overcome The policy update also discusses some difficult issues that frequently arise in Lau investigations An appendix to the policy discusses the continuing validity of OCRs use of the Castaneda[2] standard to determine compliance with the Title VI regulation
This document should be read in conjunction with the December 3 1985 guidance document entitled The Office for Civil Rights Title VI Language Minority Compliance Procedures and the May 1970 memorandum to school districts entitled Identification of Discrimination and Denial of Services on the Basis of National origin 35 Fed Reg 11595 (May 1970 Memorandum) It does not supersede either document[3] These two documents are attached for your convenience
Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCRs Title VI Lau policy In Part I more specific standards are enunciated for staffing requirements exit criteria and program evaluation Policy issues related to special education programs giftedtalented programs and other special programs are also discussed Part II of the policy update describes OCRs policy with regard to segregation of LEP students
NC Title III Application 2011-2012 Appendices Page 12 of 28
APPENDIX V (cont) The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974
With the possible exception of Castaneda which provides a common sense analytical framework for analyzing a districts program for LEP students that has been adopted by OCR and Keyes v School Dist No 1 which
applied the Castaneda principles to the Denver Public Schools most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCRs practical legal and policy experience in the field In that regard the issues discussed herein and the policy decisions reached reflect a careful and thorough examination of Lau case investigations carried out by OCRs regional offices over the past few years comments from the regional offices on a draft version of the policy and lengthy discussions on the issues with some of OCRs most experienced investigators Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate
I Additional guidance for applying the May 1970 and December 1985 memoranda
The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI (1) the need for an alternative language program for LEP students and (2) the adequacy of the program chosen by the recipient Issues related to the adequacy of the program chosen by the recipient will be discussed first as they arise more often in Lau investigations Of course the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipients educational program
A Adequacy of Program
This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipients efforts to provide equal educational opportunities for LEP students
1 Soundness of educational approach
Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field or at least theories that are recognized as legitimate educational strategies 648 F 2d at 1009 Some approaches that fall under this category include transitional bilingual education bilingualbicultural education structured immersion developmental bilingual education and English as a Second Language (ESL) A district that is using any of these approaches has complied with the first requirement of Castaneda If a district is using a different approach it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy
2 Proper Implementation
Castaneda requires that the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school 648 F 2d at 1010 Some problematic implementation issues have included staffing requirements for programs exit criteria and access to programs such as giftedtalented programs These issues are discussed below
NC Title III Application 2011-2012 Appendices Page 13 of 28
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX III (cont) Appendix A
NC Title III Application 2011-2012 Appendices Page 7 of 28
APPENDIX III (cont) Appendix B
North Carolina LEP Identification Criteria
W-APT Identification Criteria for Students with a Home Language other than English
Grade Domains W-APT Score Identifies Student as LEP
W-APT Score Indicating Student is NOT LEP
Kindergarten 1st Semester
Speaking
amp Listening
Less than 27 27 or Higher
Kindergarten 2nd Semester
All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 1st Semester All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 2nd Semester All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
Grade 2 -Grade 12 1st and 2nd semester
All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
NC Title III Application 2011-2012 Appendices Page 8 of 28
APPENDIX IV GCS-K-000
NORTH CAROLINA STATE BOARD OF EDUCATION Policy Manual
Policy Identification Priority High Student Performance Category Second Languages Policy ID Number GCS-K-000
Policy Title 16 NCAC 6D0106 Policy establishing guidelines for Limited English Proficient Programs Current Policy Date 06011996
Other Historical Information Previous board dates 09071995
Statutory Reference
Administrative Procedures Act (APA) Reference Number and Category 16 NCAC 6D 0106
0106 LIMITED ENGLISH PROFICIENCY PROGRAMS (a)Each superintendent or his delegate shall (1) identify resources available to serve limited English proficient students (2) coordinate programs and services to these students and their parents in the local school
administrative unit (3) report to the SBE information concerning the identification placement and educational progress of
these students and (4) report funding needs for the provision of services to these students to the SBE (b) LEAs shall report annually to the SBE information including but not limited to the number of students whose primary home language is other than English the number of limited English proficient students identified and receiving services the nature of the services the number of limited English proficient students receiving special education services and services for the academically gifted and data required to be reported to the U S Department of Education (c) A home language survey shall be administered to every student at the time of enrollment and maintained in
the students permanent record LEAs shall then identify and assess every limited English proficient student who needs assistance in order to have access to the units instructional programs Each LEA which identifies limited English proficient students who need assistance shall adopt an effective method of determining the students current level of English proficiency in order to determine what types of assistance are needed The method used may be a combination of the following unless some other method can be effectively substituted
(1) teacher observations (2) teacher interview (3) achievement tests
NC Title III Application 2011-2012 Appendices Page 9 of 28
APPENDIX IV (cont) (4) review of student records (5) parent information (6) proficiency tests (7) English as a second language teacher referral (8) student course grades (9) teacher referral or recommendation (10) criterion-referenced tests (11) grade retention or deficiency report (12) informal assessment or screening (13) portfolio-based assessment and (14) alternative assessments such as cloze and dictation (d) LEAs shall adopt a program or programs for limited English proficient students who need assistance which
have a reasonable chance of allowing students to progress in school The program may be one of the following unless some other method or process can be effectively substituted
(1) English as a second language (ESL) (2) bilingual education (3) programs which provide neither instruction in the native language nor direct instruction in ESL but
which adapt instruction to meet the needs of these students Program entry criteria shall be developed which take into account the students educational background English language proficiency native language proficiency and content area knowledge LEAs shall conduct a program evaluation annually
(e) LEAs shall adopt appropriate evaluative standards for measuring the progress of limited English proficient students in school In order to determine when students no longer need assistance the LEA shall determine the content knowledge and language skills necessary for successful functioning in the regular classroom Then multiple instruments as well as teacher judgment may be used to evaluate English listening and speaking skills English literacy skills and content area knowledge The students shall not be maintained in alternative language programs longer than necessary based on program exit criteria but shall be monitored after exiting such programs for a minimum of six months and additional academic and English language support shall be provided if the students begin to have difficulty
(f)LEAs shall monitor the progress of limited English proficient students in English proficiency and in the BEP When a limited English proficient student is not making progress in school the LEA shall conduct an evaluation of the students program and make modification as needed
(g) Limited English proficient students shall participate in the statewide testing programs in accordance with 16 NCAC 6D 0301 (h) LEAs shall promote the involvement of parents of students of limited English proficiency in the educational
program of their children LEAs shall notify national origin minority group parents of school activities which are called to the attention of other parents and these notices shall be provided in the home language if feasible
(i)LEAs shall ensure that limited English proficient students are not assigned to or excluded from special education programs because of their limited English language proficiency Evaluation placement and notification to parents of students with special needs shall be conducted in accordance with the Individuals with Disabilities Education Act 20 USC sect 1401 et seq and its implementing regulations at 34 CFR Part 300
NC Title III Application 2011-2012 Appendices Page 10 of 28
APPENDIX IV (cont) (j) LEAs shall ensure that limited English proficient students are not categorically excluded from programs for
the academically gifted and other specialized programs or support services such as guidance and counseling due to limited English proficiency
(k)LEAs shall ensure that limited English proficient students are educated in the least segregative manner based on the educational needs of the student and these students shall be included in all aspects of the regular school program in which they can perform satisfactorily
(l)The department shall monitor the progress of LEAs in providing programs to all limited English proficient students using the same procedures and standards as provided in Title I - Helping Disadvantaged Children Meet High Standards 20 USC sect 6301 et seq
(m) The department shall make available a list to all LEAs of teachers licensed in English as a Second Language (ESL) ESL training and add-on ESL licensure for teachers currently licensed in areas other than ESL is an appropriate strategy to obtain qualified staff
(n) Each LEA may consider joint agreements with other LEAs to provide programs to limited English proficient students (o) Each LEA may coordinate services with those available at local community colleges in order to maximize
efficient delivery of services to limited English proficient students and their parents (p) The department shall administer the Teacher Education Program Approval process so as to ensure that all
participants have an opportunity to gain an understanding of and develop strategies for addressing the educational needs of limited English proficient students The Department shall work with IHEs to expand English as a Second Language teacher training programs
History Note Authority GS 115C-12(9)c NC Constitution Article IX Sec 5 20 USC sect1703 Eff June 1
1996
NC Title III Application 2011-2012 Appendices Page 11 of 28
APPENDIX V Selected OCR Guidance
Office of Civil Rights
Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency
httpwwwedgovprintaboutofficeslistocrdocslau1991html
UNITED STATES DEPARTMENT OF EDUCATION WASHINGTON DC 20202
MEMORANDUM
SEP 27 1991
TO OCR Senior Staff
FROM Michael L Williams Assistant Secretary for Civil Rights
SUBJECT Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)
This policy update is primarily designed for use in conducting Lau[1] compliance reviews -- that is compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools programs The policy update adheres to OCRs past determination that Title VI does not mandate any particular program of instruction for LEP students In determining whether the recipient is operating a program for LEP students that meets Title VI requirements OCR will consider whether (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the program succeeds after a legitimate trial in producing results indicating that students language barriers are actually being overcome The policy update also discusses some difficult issues that frequently arise in Lau investigations An appendix to the policy discusses the continuing validity of OCRs use of the Castaneda[2] standard to determine compliance with the Title VI regulation
This document should be read in conjunction with the December 3 1985 guidance document entitled The Office for Civil Rights Title VI Language Minority Compliance Procedures and the May 1970 memorandum to school districts entitled Identification of Discrimination and Denial of Services on the Basis of National origin 35 Fed Reg 11595 (May 1970 Memorandum) It does not supersede either document[3] These two documents are attached for your convenience
Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCRs Title VI Lau policy In Part I more specific standards are enunciated for staffing requirements exit criteria and program evaluation Policy issues related to special education programs giftedtalented programs and other special programs are also discussed Part II of the policy update describes OCRs policy with regard to segregation of LEP students
NC Title III Application 2011-2012 Appendices Page 12 of 28
APPENDIX V (cont) The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974
With the possible exception of Castaneda which provides a common sense analytical framework for analyzing a districts program for LEP students that has been adopted by OCR and Keyes v School Dist No 1 which
applied the Castaneda principles to the Denver Public Schools most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCRs practical legal and policy experience in the field In that regard the issues discussed herein and the policy decisions reached reflect a careful and thorough examination of Lau case investigations carried out by OCRs regional offices over the past few years comments from the regional offices on a draft version of the policy and lengthy discussions on the issues with some of OCRs most experienced investigators Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate
I Additional guidance for applying the May 1970 and December 1985 memoranda
The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI (1) the need for an alternative language program for LEP students and (2) the adequacy of the program chosen by the recipient Issues related to the adequacy of the program chosen by the recipient will be discussed first as they arise more often in Lau investigations Of course the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipients educational program
A Adequacy of Program
This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipients efforts to provide equal educational opportunities for LEP students
1 Soundness of educational approach
Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field or at least theories that are recognized as legitimate educational strategies 648 F 2d at 1009 Some approaches that fall under this category include transitional bilingual education bilingualbicultural education structured immersion developmental bilingual education and English as a Second Language (ESL) A district that is using any of these approaches has complied with the first requirement of Castaneda If a district is using a different approach it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy
2 Proper Implementation
Castaneda requires that the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school 648 F 2d at 1010 Some problematic implementation issues have included staffing requirements for programs exit criteria and access to programs such as giftedtalented programs These issues are discussed below
NC Title III Application 2011-2012 Appendices Page 13 of 28
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX III (cont) Appendix B
North Carolina LEP Identification Criteria
W-APT Identification Criteria for Students with a Home Language other than English
Grade Domains W-APT Score Identifies Student as LEP
W-APT Score Indicating Student is NOT LEP
Kindergarten 1st Semester
Speaking
amp Listening
Less than 27 27 or Higher
Kindergarten 2nd Semester
All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 1st Semester All Four Listening amp Speaking Less than 27 or
Reading less than 14 or Writing less than 17
Listening amp Speaking 27 or higher and
Reading 14 or higher and Writing 17 or higher
Grade 1 2nd Semester All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
Grade 2 -Grade 12 1st and 2nd semester
All Four Composite less than 50 or
Any domain less than 50
Composite 50 or higher and
No domain less than 50
NC Title III Application 2011-2012 Appendices Page 8 of 28
APPENDIX IV GCS-K-000
NORTH CAROLINA STATE BOARD OF EDUCATION Policy Manual
Policy Identification Priority High Student Performance Category Second Languages Policy ID Number GCS-K-000
Policy Title 16 NCAC 6D0106 Policy establishing guidelines for Limited English Proficient Programs Current Policy Date 06011996
Other Historical Information Previous board dates 09071995
Statutory Reference
Administrative Procedures Act (APA) Reference Number and Category 16 NCAC 6D 0106
0106 LIMITED ENGLISH PROFICIENCY PROGRAMS (a)Each superintendent or his delegate shall (1) identify resources available to serve limited English proficient students (2) coordinate programs and services to these students and their parents in the local school
administrative unit (3) report to the SBE information concerning the identification placement and educational progress of
these students and (4) report funding needs for the provision of services to these students to the SBE (b) LEAs shall report annually to the SBE information including but not limited to the number of students whose primary home language is other than English the number of limited English proficient students identified and receiving services the nature of the services the number of limited English proficient students receiving special education services and services for the academically gifted and data required to be reported to the U S Department of Education (c) A home language survey shall be administered to every student at the time of enrollment and maintained in
the students permanent record LEAs shall then identify and assess every limited English proficient student who needs assistance in order to have access to the units instructional programs Each LEA which identifies limited English proficient students who need assistance shall adopt an effective method of determining the students current level of English proficiency in order to determine what types of assistance are needed The method used may be a combination of the following unless some other method can be effectively substituted
(1) teacher observations (2) teacher interview (3) achievement tests
NC Title III Application 2011-2012 Appendices Page 9 of 28
APPENDIX IV (cont) (4) review of student records (5) parent information (6) proficiency tests (7) English as a second language teacher referral (8) student course grades (9) teacher referral or recommendation (10) criterion-referenced tests (11) grade retention or deficiency report (12) informal assessment or screening (13) portfolio-based assessment and (14) alternative assessments such as cloze and dictation (d) LEAs shall adopt a program or programs for limited English proficient students who need assistance which
have a reasonable chance of allowing students to progress in school The program may be one of the following unless some other method or process can be effectively substituted
(1) English as a second language (ESL) (2) bilingual education (3) programs which provide neither instruction in the native language nor direct instruction in ESL but
which adapt instruction to meet the needs of these students Program entry criteria shall be developed which take into account the students educational background English language proficiency native language proficiency and content area knowledge LEAs shall conduct a program evaluation annually
(e) LEAs shall adopt appropriate evaluative standards for measuring the progress of limited English proficient students in school In order to determine when students no longer need assistance the LEA shall determine the content knowledge and language skills necessary for successful functioning in the regular classroom Then multiple instruments as well as teacher judgment may be used to evaluate English listening and speaking skills English literacy skills and content area knowledge The students shall not be maintained in alternative language programs longer than necessary based on program exit criteria but shall be monitored after exiting such programs for a minimum of six months and additional academic and English language support shall be provided if the students begin to have difficulty
(f)LEAs shall monitor the progress of limited English proficient students in English proficiency and in the BEP When a limited English proficient student is not making progress in school the LEA shall conduct an evaluation of the students program and make modification as needed
(g) Limited English proficient students shall participate in the statewide testing programs in accordance with 16 NCAC 6D 0301 (h) LEAs shall promote the involvement of parents of students of limited English proficiency in the educational
program of their children LEAs shall notify national origin minority group parents of school activities which are called to the attention of other parents and these notices shall be provided in the home language if feasible
(i)LEAs shall ensure that limited English proficient students are not assigned to or excluded from special education programs because of their limited English language proficiency Evaluation placement and notification to parents of students with special needs shall be conducted in accordance with the Individuals with Disabilities Education Act 20 USC sect 1401 et seq and its implementing regulations at 34 CFR Part 300
NC Title III Application 2011-2012 Appendices Page 10 of 28
APPENDIX IV (cont) (j) LEAs shall ensure that limited English proficient students are not categorically excluded from programs for
the academically gifted and other specialized programs or support services such as guidance and counseling due to limited English proficiency
(k)LEAs shall ensure that limited English proficient students are educated in the least segregative manner based on the educational needs of the student and these students shall be included in all aspects of the regular school program in which they can perform satisfactorily
(l)The department shall monitor the progress of LEAs in providing programs to all limited English proficient students using the same procedures and standards as provided in Title I - Helping Disadvantaged Children Meet High Standards 20 USC sect 6301 et seq
(m) The department shall make available a list to all LEAs of teachers licensed in English as a Second Language (ESL) ESL training and add-on ESL licensure for teachers currently licensed in areas other than ESL is an appropriate strategy to obtain qualified staff
(n) Each LEA may consider joint agreements with other LEAs to provide programs to limited English proficient students (o) Each LEA may coordinate services with those available at local community colleges in order to maximize
efficient delivery of services to limited English proficient students and their parents (p) The department shall administer the Teacher Education Program Approval process so as to ensure that all
participants have an opportunity to gain an understanding of and develop strategies for addressing the educational needs of limited English proficient students The Department shall work with IHEs to expand English as a Second Language teacher training programs
History Note Authority GS 115C-12(9)c NC Constitution Article IX Sec 5 20 USC sect1703 Eff June 1
1996
NC Title III Application 2011-2012 Appendices Page 11 of 28
APPENDIX V Selected OCR Guidance
Office of Civil Rights
Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency
httpwwwedgovprintaboutofficeslistocrdocslau1991html
UNITED STATES DEPARTMENT OF EDUCATION WASHINGTON DC 20202
MEMORANDUM
SEP 27 1991
TO OCR Senior Staff
FROM Michael L Williams Assistant Secretary for Civil Rights
SUBJECT Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)
This policy update is primarily designed for use in conducting Lau[1] compliance reviews -- that is compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools programs The policy update adheres to OCRs past determination that Title VI does not mandate any particular program of instruction for LEP students In determining whether the recipient is operating a program for LEP students that meets Title VI requirements OCR will consider whether (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the program succeeds after a legitimate trial in producing results indicating that students language barriers are actually being overcome The policy update also discusses some difficult issues that frequently arise in Lau investigations An appendix to the policy discusses the continuing validity of OCRs use of the Castaneda[2] standard to determine compliance with the Title VI regulation
This document should be read in conjunction with the December 3 1985 guidance document entitled The Office for Civil Rights Title VI Language Minority Compliance Procedures and the May 1970 memorandum to school districts entitled Identification of Discrimination and Denial of Services on the Basis of National origin 35 Fed Reg 11595 (May 1970 Memorandum) It does not supersede either document[3] These two documents are attached for your convenience
Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCRs Title VI Lau policy In Part I more specific standards are enunciated for staffing requirements exit criteria and program evaluation Policy issues related to special education programs giftedtalented programs and other special programs are also discussed Part II of the policy update describes OCRs policy with regard to segregation of LEP students
NC Title III Application 2011-2012 Appendices Page 12 of 28
APPENDIX V (cont) The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974
With the possible exception of Castaneda which provides a common sense analytical framework for analyzing a districts program for LEP students that has been adopted by OCR and Keyes v School Dist No 1 which
applied the Castaneda principles to the Denver Public Schools most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCRs practical legal and policy experience in the field In that regard the issues discussed herein and the policy decisions reached reflect a careful and thorough examination of Lau case investigations carried out by OCRs regional offices over the past few years comments from the regional offices on a draft version of the policy and lengthy discussions on the issues with some of OCRs most experienced investigators Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate
I Additional guidance for applying the May 1970 and December 1985 memoranda
The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI (1) the need for an alternative language program for LEP students and (2) the adequacy of the program chosen by the recipient Issues related to the adequacy of the program chosen by the recipient will be discussed first as they arise more often in Lau investigations Of course the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipients educational program
A Adequacy of Program
This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipients efforts to provide equal educational opportunities for LEP students
1 Soundness of educational approach
Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field or at least theories that are recognized as legitimate educational strategies 648 F 2d at 1009 Some approaches that fall under this category include transitional bilingual education bilingualbicultural education structured immersion developmental bilingual education and English as a Second Language (ESL) A district that is using any of these approaches has complied with the first requirement of Castaneda If a district is using a different approach it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy
2 Proper Implementation
Castaneda requires that the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school 648 F 2d at 1010 Some problematic implementation issues have included staffing requirements for programs exit criteria and access to programs such as giftedtalented programs These issues are discussed below
NC Title III Application 2011-2012 Appendices Page 13 of 28
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX IV GCS-K-000
NORTH CAROLINA STATE BOARD OF EDUCATION Policy Manual
Policy Identification Priority High Student Performance Category Second Languages Policy ID Number GCS-K-000
Policy Title 16 NCAC 6D0106 Policy establishing guidelines for Limited English Proficient Programs Current Policy Date 06011996
Other Historical Information Previous board dates 09071995
Statutory Reference
Administrative Procedures Act (APA) Reference Number and Category 16 NCAC 6D 0106
0106 LIMITED ENGLISH PROFICIENCY PROGRAMS (a)Each superintendent or his delegate shall (1) identify resources available to serve limited English proficient students (2) coordinate programs and services to these students and their parents in the local school
administrative unit (3) report to the SBE information concerning the identification placement and educational progress of
these students and (4) report funding needs for the provision of services to these students to the SBE (b) LEAs shall report annually to the SBE information including but not limited to the number of students whose primary home language is other than English the number of limited English proficient students identified and receiving services the nature of the services the number of limited English proficient students receiving special education services and services for the academically gifted and data required to be reported to the U S Department of Education (c) A home language survey shall be administered to every student at the time of enrollment and maintained in
the students permanent record LEAs shall then identify and assess every limited English proficient student who needs assistance in order to have access to the units instructional programs Each LEA which identifies limited English proficient students who need assistance shall adopt an effective method of determining the students current level of English proficiency in order to determine what types of assistance are needed The method used may be a combination of the following unless some other method can be effectively substituted
(1) teacher observations (2) teacher interview (3) achievement tests
NC Title III Application 2011-2012 Appendices Page 9 of 28
APPENDIX IV (cont) (4) review of student records (5) parent information (6) proficiency tests (7) English as a second language teacher referral (8) student course grades (9) teacher referral or recommendation (10) criterion-referenced tests (11) grade retention or deficiency report (12) informal assessment or screening (13) portfolio-based assessment and (14) alternative assessments such as cloze and dictation (d) LEAs shall adopt a program or programs for limited English proficient students who need assistance which
have a reasonable chance of allowing students to progress in school The program may be one of the following unless some other method or process can be effectively substituted
(1) English as a second language (ESL) (2) bilingual education (3) programs which provide neither instruction in the native language nor direct instruction in ESL but
which adapt instruction to meet the needs of these students Program entry criteria shall be developed which take into account the students educational background English language proficiency native language proficiency and content area knowledge LEAs shall conduct a program evaluation annually
(e) LEAs shall adopt appropriate evaluative standards for measuring the progress of limited English proficient students in school In order to determine when students no longer need assistance the LEA shall determine the content knowledge and language skills necessary for successful functioning in the regular classroom Then multiple instruments as well as teacher judgment may be used to evaluate English listening and speaking skills English literacy skills and content area knowledge The students shall not be maintained in alternative language programs longer than necessary based on program exit criteria but shall be monitored after exiting such programs for a minimum of six months and additional academic and English language support shall be provided if the students begin to have difficulty
(f)LEAs shall monitor the progress of limited English proficient students in English proficiency and in the BEP When a limited English proficient student is not making progress in school the LEA shall conduct an evaluation of the students program and make modification as needed
(g) Limited English proficient students shall participate in the statewide testing programs in accordance with 16 NCAC 6D 0301 (h) LEAs shall promote the involvement of parents of students of limited English proficiency in the educational
program of their children LEAs shall notify national origin minority group parents of school activities which are called to the attention of other parents and these notices shall be provided in the home language if feasible
(i)LEAs shall ensure that limited English proficient students are not assigned to or excluded from special education programs because of their limited English language proficiency Evaluation placement and notification to parents of students with special needs shall be conducted in accordance with the Individuals with Disabilities Education Act 20 USC sect 1401 et seq and its implementing regulations at 34 CFR Part 300
NC Title III Application 2011-2012 Appendices Page 10 of 28
APPENDIX IV (cont) (j) LEAs shall ensure that limited English proficient students are not categorically excluded from programs for
the academically gifted and other specialized programs or support services such as guidance and counseling due to limited English proficiency
(k)LEAs shall ensure that limited English proficient students are educated in the least segregative manner based on the educational needs of the student and these students shall be included in all aspects of the regular school program in which they can perform satisfactorily
(l)The department shall monitor the progress of LEAs in providing programs to all limited English proficient students using the same procedures and standards as provided in Title I - Helping Disadvantaged Children Meet High Standards 20 USC sect 6301 et seq
(m) The department shall make available a list to all LEAs of teachers licensed in English as a Second Language (ESL) ESL training and add-on ESL licensure for teachers currently licensed in areas other than ESL is an appropriate strategy to obtain qualified staff
(n) Each LEA may consider joint agreements with other LEAs to provide programs to limited English proficient students (o) Each LEA may coordinate services with those available at local community colleges in order to maximize
efficient delivery of services to limited English proficient students and their parents (p) The department shall administer the Teacher Education Program Approval process so as to ensure that all
participants have an opportunity to gain an understanding of and develop strategies for addressing the educational needs of limited English proficient students The Department shall work with IHEs to expand English as a Second Language teacher training programs
History Note Authority GS 115C-12(9)c NC Constitution Article IX Sec 5 20 USC sect1703 Eff June 1
1996
NC Title III Application 2011-2012 Appendices Page 11 of 28
APPENDIX V Selected OCR Guidance
Office of Civil Rights
Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency
httpwwwedgovprintaboutofficeslistocrdocslau1991html
UNITED STATES DEPARTMENT OF EDUCATION WASHINGTON DC 20202
MEMORANDUM
SEP 27 1991
TO OCR Senior Staff
FROM Michael L Williams Assistant Secretary for Civil Rights
SUBJECT Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)
This policy update is primarily designed for use in conducting Lau[1] compliance reviews -- that is compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools programs The policy update adheres to OCRs past determination that Title VI does not mandate any particular program of instruction for LEP students In determining whether the recipient is operating a program for LEP students that meets Title VI requirements OCR will consider whether (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the program succeeds after a legitimate trial in producing results indicating that students language barriers are actually being overcome The policy update also discusses some difficult issues that frequently arise in Lau investigations An appendix to the policy discusses the continuing validity of OCRs use of the Castaneda[2] standard to determine compliance with the Title VI regulation
This document should be read in conjunction with the December 3 1985 guidance document entitled The Office for Civil Rights Title VI Language Minority Compliance Procedures and the May 1970 memorandum to school districts entitled Identification of Discrimination and Denial of Services on the Basis of National origin 35 Fed Reg 11595 (May 1970 Memorandum) It does not supersede either document[3] These two documents are attached for your convenience
Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCRs Title VI Lau policy In Part I more specific standards are enunciated for staffing requirements exit criteria and program evaluation Policy issues related to special education programs giftedtalented programs and other special programs are also discussed Part II of the policy update describes OCRs policy with regard to segregation of LEP students
NC Title III Application 2011-2012 Appendices Page 12 of 28
APPENDIX V (cont) The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974
With the possible exception of Castaneda which provides a common sense analytical framework for analyzing a districts program for LEP students that has been adopted by OCR and Keyes v School Dist No 1 which
applied the Castaneda principles to the Denver Public Schools most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCRs practical legal and policy experience in the field In that regard the issues discussed herein and the policy decisions reached reflect a careful and thorough examination of Lau case investigations carried out by OCRs regional offices over the past few years comments from the regional offices on a draft version of the policy and lengthy discussions on the issues with some of OCRs most experienced investigators Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate
I Additional guidance for applying the May 1970 and December 1985 memoranda
The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI (1) the need for an alternative language program for LEP students and (2) the adequacy of the program chosen by the recipient Issues related to the adequacy of the program chosen by the recipient will be discussed first as they arise more often in Lau investigations Of course the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipients educational program
A Adequacy of Program
This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipients efforts to provide equal educational opportunities for LEP students
1 Soundness of educational approach
Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field or at least theories that are recognized as legitimate educational strategies 648 F 2d at 1009 Some approaches that fall under this category include transitional bilingual education bilingualbicultural education structured immersion developmental bilingual education and English as a Second Language (ESL) A district that is using any of these approaches has complied with the first requirement of Castaneda If a district is using a different approach it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy
2 Proper Implementation
Castaneda requires that the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school 648 F 2d at 1010 Some problematic implementation issues have included staffing requirements for programs exit criteria and access to programs such as giftedtalented programs These issues are discussed below
NC Title III Application 2011-2012 Appendices Page 13 of 28
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX IV (cont) (4) review of student records (5) parent information (6) proficiency tests (7) English as a second language teacher referral (8) student course grades (9) teacher referral or recommendation (10) criterion-referenced tests (11) grade retention or deficiency report (12) informal assessment or screening (13) portfolio-based assessment and (14) alternative assessments such as cloze and dictation (d) LEAs shall adopt a program or programs for limited English proficient students who need assistance which
have a reasonable chance of allowing students to progress in school The program may be one of the following unless some other method or process can be effectively substituted
(1) English as a second language (ESL) (2) bilingual education (3) programs which provide neither instruction in the native language nor direct instruction in ESL but
which adapt instruction to meet the needs of these students Program entry criteria shall be developed which take into account the students educational background English language proficiency native language proficiency and content area knowledge LEAs shall conduct a program evaluation annually
(e) LEAs shall adopt appropriate evaluative standards for measuring the progress of limited English proficient students in school In order to determine when students no longer need assistance the LEA shall determine the content knowledge and language skills necessary for successful functioning in the regular classroom Then multiple instruments as well as teacher judgment may be used to evaluate English listening and speaking skills English literacy skills and content area knowledge The students shall not be maintained in alternative language programs longer than necessary based on program exit criteria but shall be monitored after exiting such programs for a minimum of six months and additional academic and English language support shall be provided if the students begin to have difficulty
(f)LEAs shall monitor the progress of limited English proficient students in English proficiency and in the BEP When a limited English proficient student is not making progress in school the LEA shall conduct an evaluation of the students program and make modification as needed
(g) Limited English proficient students shall participate in the statewide testing programs in accordance with 16 NCAC 6D 0301 (h) LEAs shall promote the involvement of parents of students of limited English proficiency in the educational
program of their children LEAs shall notify national origin minority group parents of school activities which are called to the attention of other parents and these notices shall be provided in the home language if feasible
(i)LEAs shall ensure that limited English proficient students are not assigned to or excluded from special education programs because of their limited English language proficiency Evaluation placement and notification to parents of students with special needs shall be conducted in accordance with the Individuals with Disabilities Education Act 20 USC sect 1401 et seq and its implementing regulations at 34 CFR Part 300
NC Title III Application 2011-2012 Appendices Page 10 of 28
APPENDIX IV (cont) (j) LEAs shall ensure that limited English proficient students are not categorically excluded from programs for
the academically gifted and other specialized programs or support services such as guidance and counseling due to limited English proficiency
(k)LEAs shall ensure that limited English proficient students are educated in the least segregative manner based on the educational needs of the student and these students shall be included in all aspects of the regular school program in which they can perform satisfactorily
(l)The department shall monitor the progress of LEAs in providing programs to all limited English proficient students using the same procedures and standards as provided in Title I - Helping Disadvantaged Children Meet High Standards 20 USC sect 6301 et seq
(m) The department shall make available a list to all LEAs of teachers licensed in English as a Second Language (ESL) ESL training and add-on ESL licensure for teachers currently licensed in areas other than ESL is an appropriate strategy to obtain qualified staff
(n) Each LEA may consider joint agreements with other LEAs to provide programs to limited English proficient students (o) Each LEA may coordinate services with those available at local community colleges in order to maximize
efficient delivery of services to limited English proficient students and their parents (p) The department shall administer the Teacher Education Program Approval process so as to ensure that all
participants have an opportunity to gain an understanding of and develop strategies for addressing the educational needs of limited English proficient students The Department shall work with IHEs to expand English as a Second Language teacher training programs
History Note Authority GS 115C-12(9)c NC Constitution Article IX Sec 5 20 USC sect1703 Eff June 1
1996
NC Title III Application 2011-2012 Appendices Page 11 of 28
APPENDIX V Selected OCR Guidance
Office of Civil Rights
Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency
httpwwwedgovprintaboutofficeslistocrdocslau1991html
UNITED STATES DEPARTMENT OF EDUCATION WASHINGTON DC 20202
MEMORANDUM
SEP 27 1991
TO OCR Senior Staff
FROM Michael L Williams Assistant Secretary for Civil Rights
SUBJECT Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)
This policy update is primarily designed for use in conducting Lau[1] compliance reviews -- that is compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools programs The policy update adheres to OCRs past determination that Title VI does not mandate any particular program of instruction for LEP students In determining whether the recipient is operating a program for LEP students that meets Title VI requirements OCR will consider whether (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the program succeeds after a legitimate trial in producing results indicating that students language barriers are actually being overcome The policy update also discusses some difficult issues that frequently arise in Lau investigations An appendix to the policy discusses the continuing validity of OCRs use of the Castaneda[2] standard to determine compliance with the Title VI regulation
This document should be read in conjunction with the December 3 1985 guidance document entitled The Office for Civil Rights Title VI Language Minority Compliance Procedures and the May 1970 memorandum to school districts entitled Identification of Discrimination and Denial of Services on the Basis of National origin 35 Fed Reg 11595 (May 1970 Memorandum) It does not supersede either document[3] These two documents are attached for your convenience
Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCRs Title VI Lau policy In Part I more specific standards are enunciated for staffing requirements exit criteria and program evaluation Policy issues related to special education programs giftedtalented programs and other special programs are also discussed Part II of the policy update describes OCRs policy with regard to segregation of LEP students
NC Title III Application 2011-2012 Appendices Page 12 of 28
APPENDIX V (cont) The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974
With the possible exception of Castaneda which provides a common sense analytical framework for analyzing a districts program for LEP students that has been adopted by OCR and Keyes v School Dist No 1 which
applied the Castaneda principles to the Denver Public Schools most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCRs practical legal and policy experience in the field In that regard the issues discussed herein and the policy decisions reached reflect a careful and thorough examination of Lau case investigations carried out by OCRs regional offices over the past few years comments from the regional offices on a draft version of the policy and lengthy discussions on the issues with some of OCRs most experienced investigators Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate
I Additional guidance for applying the May 1970 and December 1985 memoranda
The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI (1) the need for an alternative language program for LEP students and (2) the adequacy of the program chosen by the recipient Issues related to the adequacy of the program chosen by the recipient will be discussed first as they arise more often in Lau investigations Of course the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipients educational program
A Adequacy of Program
This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipients efforts to provide equal educational opportunities for LEP students
1 Soundness of educational approach
Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field or at least theories that are recognized as legitimate educational strategies 648 F 2d at 1009 Some approaches that fall under this category include transitional bilingual education bilingualbicultural education structured immersion developmental bilingual education and English as a Second Language (ESL) A district that is using any of these approaches has complied with the first requirement of Castaneda If a district is using a different approach it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy
2 Proper Implementation
Castaneda requires that the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school 648 F 2d at 1010 Some problematic implementation issues have included staffing requirements for programs exit criteria and access to programs such as giftedtalented programs These issues are discussed below
NC Title III Application 2011-2012 Appendices Page 13 of 28
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX IV (cont) (j) LEAs shall ensure that limited English proficient students are not categorically excluded from programs for
the academically gifted and other specialized programs or support services such as guidance and counseling due to limited English proficiency
(k)LEAs shall ensure that limited English proficient students are educated in the least segregative manner based on the educational needs of the student and these students shall be included in all aspects of the regular school program in which they can perform satisfactorily
(l)The department shall monitor the progress of LEAs in providing programs to all limited English proficient students using the same procedures and standards as provided in Title I - Helping Disadvantaged Children Meet High Standards 20 USC sect 6301 et seq
(m) The department shall make available a list to all LEAs of teachers licensed in English as a Second Language (ESL) ESL training and add-on ESL licensure for teachers currently licensed in areas other than ESL is an appropriate strategy to obtain qualified staff
(n) Each LEA may consider joint agreements with other LEAs to provide programs to limited English proficient students (o) Each LEA may coordinate services with those available at local community colleges in order to maximize
efficient delivery of services to limited English proficient students and their parents (p) The department shall administer the Teacher Education Program Approval process so as to ensure that all
participants have an opportunity to gain an understanding of and develop strategies for addressing the educational needs of limited English proficient students The Department shall work with IHEs to expand English as a Second Language teacher training programs
History Note Authority GS 115C-12(9)c NC Constitution Article IX Sec 5 20 USC sect1703 Eff June 1
1996
NC Title III Application 2011-2012 Appendices Page 11 of 28
APPENDIX V Selected OCR Guidance
Office of Civil Rights
Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency
httpwwwedgovprintaboutofficeslistocrdocslau1991html
UNITED STATES DEPARTMENT OF EDUCATION WASHINGTON DC 20202
MEMORANDUM
SEP 27 1991
TO OCR Senior Staff
FROM Michael L Williams Assistant Secretary for Civil Rights
SUBJECT Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)
This policy update is primarily designed for use in conducting Lau[1] compliance reviews -- that is compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools programs The policy update adheres to OCRs past determination that Title VI does not mandate any particular program of instruction for LEP students In determining whether the recipient is operating a program for LEP students that meets Title VI requirements OCR will consider whether (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the program succeeds after a legitimate trial in producing results indicating that students language barriers are actually being overcome The policy update also discusses some difficult issues that frequently arise in Lau investigations An appendix to the policy discusses the continuing validity of OCRs use of the Castaneda[2] standard to determine compliance with the Title VI regulation
This document should be read in conjunction with the December 3 1985 guidance document entitled The Office for Civil Rights Title VI Language Minority Compliance Procedures and the May 1970 memorandum to school districts entitled Identification of Discrimination and Denial of Services on the Basis of National origin 35 Fed Reg 11595 (May 1970 Memorandum) It does not supersede either document[3] These two documents are attached for your convenience
Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCRs Title VI Lau policy In Part I more specific standards are enunciated for staffing requirements exit criteria and program evaluation Policy issues related to special education programs giftedtalented programs and other special programs are also discussed Part II of the policy update describes OCRs policy with regard to segregation of LEP students
NC Title III Application 2011-2012 Appendices Page 12 of 28
APPENDIX V (cont) The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974
With the possible exception of Castaneda which provides a common sense analytical framework for analyzing a districts program for LEP students that has been adopted by OCR and Keyes v School Dist No 1 which
applied the Castaneda principles to the Denver Public Schools most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCRs practical legal and policy experience in the field In that regard the issues discussed herein and the policy decisions reached reflect a careful and thorough examination of Lau case investigations carried out by OCRs regional offices over the past few years comments from the regional offices on a draft version of the policy and lengthy discussions on the issues with some of OCRs most experienced investigators Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate
I Additional guidance for applying the May 1970 and December 1985 memoranda
The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI (1) the need for an alternative language program for LEP students and (2) the adequacy of the program chosen by the recipient Issues related to the adequacy of the program chosen by the recipient will be discussed first as they arise more often in Lau investigations Of course the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipients educational program
A Adequacy of Program
This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipients efforts to provide equal educational opportunities for LEP students
1 Soundness of educational approach
Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field or at least theories that are recognized as legitimate educational strategies 648 F 2d at 1009 Some approaches that fall under this category include transitional bilingual education bilingualbicultural education structured immersion developmental bilingual education and English as a Second Language (ESL) A district that is using any of these approaches has complied with the first requirement of Castaneda If a district is using a different approach it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy
2 Proper Implementation
Castaneda requires that the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school 648 F 2d at 1010 Some problematic implementation issues have included staffing requirements for programs exit criteria and access to programs such as giftedtalented programs These issues are discussed below
NC Title III Application 2011-2012 Appendices Page 13 of 28
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX V Selected OCR Guidance
Office of Civil Rights
Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency
httpwwwedgovprintaboutofficeslistocrdocslau1991html
UNITED STATES DEPARTMENT OF EDUCATION WASHINGTON DC 20202
MEMORANDUM
SEP 27 1991
TO OCR Senior Staff
FROM Michael L Williams Assistant Secretary for Civil Rights
SUBJECT Policy Update on Schools Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)
This policy update is primarily designed for use in conducting Lau[1] compliance reviews -- that is compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools programs The policy update adheres to OCRs past determination that Title VI does not mandate any particular program of instruction for LEP students In determining whether the recipient is operating a program for LEP students that meets Title VI requirements OCR will consider whether (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the program succeeds after a legitimate trial in producing results indicating that students language barriers are actually being overcome The policy update also discusses some difficult issues that frequently arise in Lau investigations An appendix to the policy discusses the continuing validity of OCRs use of the Castaneda[2] standard to determine compliance with the Title VI regulation
This document should be read in conjunction with the December 3 1985 guidance document entitled The Office for Civil Rights Title VI Language Minority Compliance Procedures and the May 1970 memorandum to school districts entitled Identification of Discrimination and Denial of Services on the Basis of National origin 35 Fed Reg 11595 (May 1970 Memorandum) It does not supersede either document[3] These two documents are attached for your convenience
Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCRs Title VI Lau policy In Part I more specific standards are enunciated for staffing requirements exit criteria and program evaluation Policy issues related to special education programs giftedtalented programs and other special programs are also discussed Part II of the policy update describes OCRs policy with regard to segregation of LEP students
NC Title III Application 2011-2012 Appendices Page 12 of 28
APPENDIX V (cont) The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974
With the possible exception of Castaneda which provides a common sense analytical framework for analyzing a districts program for LEP students that has been adopted by OCR and Keyes v School Dist No 1 which
applied the Castaneda principles to the Denver Public Schools most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCRs practical legal and policy experience in the field In that regard the issues discussed herein and the policy decisions reached reflect a careful and thorough examination of Lau case investigations carried out by OCRs regional offices over the past few years comments from the regional offices on a draft version of the policy and lengthy discussions on the issues with some of OCRs most experienced investigators Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate
I Additional guidance for applying the May 1970 and December 1985 memoranda
The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI (1) the need for an alternative language program for LEP students and (2) the adequacy of the program chosen by the recipient Issues related to the adequacy of the program chosen by the recipient will be discussed first as they arise more often in Lau investigations Of course the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipients educational program
A Adequacy of Program
This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipients efforts to provide equal educational opportunities for LEP students
1 Soundness of educational approach
Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field or at least theories that are recognized as legitimate educational strategies 648 F 2d at 1009 Some approaches that fall under this category include transitional bilingual education bilingualbicultural education structured immersion developmental bilingual education and English as a Second Language (ESL) A district that is using any of these approaches has complied with the first requirement of Castaneda If a district is using a different approach it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy
2 Proper Implementation
Castaneda requires that the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school 648 F 2d at 1010 Some problematic implementation issues have included staffing requirements for programs exit criteria and access to programs such as giftedtalented programs These issues are discussed below
NC Title III Application 2011-2012 Appendices Page 13 of 28
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX V (cont) The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974
With the possible exception of Castaneda which provides a common sense analytical framework for analyzing a districts program for LEP students that has been adopted by OCR and Keyes v School Dist No 1 which
applied the Castaneda principles to the Denver Public Schools most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCRs practical legal and policy experience in the field In that regard the issues discussed herein and the policy decisions reached reflect a careful and thorough examination of Lau case investigations carried out by OCRs regional offices over the past few years comments from the regional offices on a draft version of the policy and lengthy discussions on the issues with some of OCRs most experienced investigators Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate
I Additional guidance for applying the May 1970 and December 1985 memoranda
The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI (1) the need for an alternative language program for LEP students and (2) the adequacy of the program chosen by the recipient Issues related to the adequacy of the program chosen by the recipient will be discussed first as they arise more often in Lau investigations Of course the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipients educational program
A Adequacy of Program
This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipients efforts to provide equal educational opportunities for LEP students
1 Soundness of educational approach
Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field or at least theories that are recognized as legitimate educational strategies 648 F 2d at 1009 Some approaches that fall under this category include transitional bilingual education bilingualbicultural education structured immersion developmental bilingual education and English as a Second Language (ESL) A district that is using any of these approaches has complied with the first requirement of Castaneda If a district is using a different approach it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy
2 Proper Implementation
Castaneda requires that the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school 648 F 2d at 1010 Some problematic implementation issues have included staffing requirements for programs exit criteria and access to programs such as giftedtalented programs These issues are discussed below
NC Title III Application 2011-2012 Appendices Page 13 of 28
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX V (cont)
Staffing requirements
Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students When formal qualifications have been established and when a district generally requires its teachers in other subjects to meet formal requirements a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications See Castaneda 648 F 2d at 1013 A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications See 34 CFR sect 1003(b)(ii)[4]
Whether the districts teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program Some states have no requirements beyond requiring that a teacher generally be certified and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the districts chosen educational program[5] Discussed below are some minimum qualifications for teachers in alternative language programs
If a recipient selects a bilingual program for its LEP students at a minimum teachers of bilingual classes should be able to speak read and write both languages and should have received adequate instruction in the methods of bilingual education In addition the recipient should be able to show that it has determined that its bilingual teachers have these skills See Keyes 576 F Supp at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages) cf Castaneda 648 F 2d at 1013 (A bilingual education program however sound in theory is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children if the teachers charged with the day-to-day responsibility for educating these children are termed qualified despite the fact that they operate in the classroom under their own unremedied language disability) In addition bilingual teachers should be fully qualified to teach their subject
If a recipient uses a method other than bilingual education (such as ESL or structured immersion) the recipient should have ascertained that teachers who use those methods have been adequately trained in them This training can take the form of in-service training formal college coursework or a combination of the two In addition as with bilingual teachers a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students In making this determination the recipient should use validated evaluative instruments -- that is tests that have been shown to accurately measure the skills in question The recipient should also have the teachers classroom performance evaluated by someone familiar with the method being used
ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills Compare Teresa P 724 F Supp at 709 (finding that LEP students can be taught English effectively by monolingual teachers) with Keyes 576 F Supp at 1517 (The record shows that in the secondary schools there are designated ESL teachers who have no second language capability There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools)
To the extent that the recipients chosen educational theory requires native language support and if the program relies on bilingual aides to provide such support the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking reading and writing both languages[6] In addition the bilingual aides should be working under the direct supervision of certificated classroom teachers Students should not be getting instruction from aides rather than teachers 34 CFR sect 1003(b)(1)(ii) see Castaneda 648 F2d at 1013 (The use of Spanish speaking aides may be an appropriate interim measure but such aides cannot take the place of qualified bilingual teachers)
NC Title III Application 2011-2012 Appendices Page 14 of 28
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX V (cont) Recipients frequently assert that their teachers are unqualified because qualified teachers are not available If a recipient has shown that it has unsuccessfully tried to hire qualified teachers it must provide adequate training to teachers already on staff to comply with the Title VI regulation See Castaneda 648 F 2d at 1013 Such training must take place as soon as possible For example recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students This requirement is not in itself sufficient to meet the recipients obligations under the Title VI regulation To ensure that LEP students have access to the recipients programs while teachers are completing their formal training the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom as well as any assistance from bilingual aides that may be necessary to carry out the recipients interim program
Exit Criteria for Language Minority LEP Students
Once students have been placed in an alternative language program they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include (1) whether they are able to keep up with their non-LEP peers in the regular educational program (2) whether they are able to participate successfully in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers
Generally a recipient will have wide latitude in determining criteria for exiting students from an alternative language program but there are a few basic standards that should be met First exit criteria should be based on objective standards such as standardized test scores and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom Second students should not be exited from the LEP program unless they can read write and comprehend English well enough to participate meaningfully in the recipients program Exit criteria that simply test a students oral language skills are inadequate Keyes 576 F Supp at 1518 (noting importance of testing reading and writing skills as well as oral language skills) Finally alternative programs cannot be dead end tracks to segregate national origin minority students
Many districts design their LEP programs to temporarily emphasize English over other subjects While schools with such programs may discontinue special instruction in English once LEP students become English-proficient schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English Castaneda 648 F 2d at 1011
Special Education Programs
OCRs overall policy on this issue as initially announced in the May 1970 memorandum is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs Although OCR staff are very familiar with Section 504 requirements additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful A separate policy update will be prepared on those issues
Pending completion of that policy update Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs or where special education programs provided
NC Title III Application 2011-2012 Appendices Page 15 of 28
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX V (cont)
for LEP students do not address their inability to speak or understand English In addition compliance reviews should find out whether recipients have policies of no double services that is refusing to
provide both alternative language services and Special education to students who need them Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues Alternatively the region could schedule a compliance review of the special education program at a later date In small to medium-sized school districts regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review
GiftedTalented Programs and Other Specialized Programs
The exclusion of LEP students from specialized programs such as giftedtalented programs may have the effect of excluding students from a recipients programs on the basis of national origin in violation of 34 CFR sect 1003(b)(2) unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program
LEP students cannot be categorically excluded from giftedtalented or other specialized programs If a recipient has a process for locating and identifying giftedtalented students it must also locate and identify giftedtalented LEP students who could benefit from the program
In determining whether a recipient has improperly excluded LEP students from its giftedtalented or other specialized programs OCR will carefully examine the recipients explanation for the lack of participation by LEP students OCR will also consider whether the recipient has conveyed these reasons to students and parents
Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include (1) that time for the program would unduly hinder hisher participation in an alternative language program and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation
Unless the particular giftedtalented program or program component requires proficiency in English language skills for meaningful participation the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency To the extent feasible tests used to place students in specialized programs should not be of a type that the students limited proficiency in English will prevent himher from qualifying for a program for which they would otherwise be qualified
3 Program Evaluation
In return for allowing schools flexibility in choosing and implementing an alternative language program Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial As a practical matter recipients cannot comply with this requirement without periodically evaluating their programs If a recipient does not periodically evaluate or modify its programs as appropriate it is in violation of the Title VI regulation unless its program is successful Cf Keyes 576 F Supp at 1518 (The defendants program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy)
NC Title III Application 2011-2012 Appendices Page 16 of 28
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX V (cont)
Generally success is measured in terms of whether the program is achieving the particular goals the recipient has established for the program If the recipient has established no particular goals the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipients programs
B Need for a formal program
Recipients should have procedures in place for identifying and assessing LEP students As the December 1985 memorandum stated if language minority students in need of an alternative language program are not being served the recipient is in violation of Title VI
The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients schools In districts with few LEP students at a minimum school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services and of their obligation to seek any assistance necessary to comply with this requirement Schools with a relatively large number of LEP students would be expected to have in place a more formal program
Title VI does not require an alternative program if without such a program LEP students have equal and meaningful access to the districts programs It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access If a recipient contends that its LEP students have meaningful access to the districts programs despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda some factors to consider in evaluating this claim are (1) whether LEP students are performing as well as their non-LEP peers in the district unless some other comparison seems more appropriate[7] (2) whether LEP students are successfully participating in essentially all aspects of the schools curriculum without the use of simplified English materials and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers Cf Keyes 576 F Supp at 1519 (high dropout rates and use of levelled English materials indicate that district is not providing equal educational opportunity for LEP students) If LEP students have equal access to the districts programs under the above standards the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard If application of the above standards shows that LEP students do not have equal access to the districts programs and the district has no alternative language program the district is in violation of Title VI If the district is implementing an alternative program it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI
II Segregation of LEP students
Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day Castaneda states that this segregation is permissible because the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation 648 F 2d at 998
OCRs inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals In other words OCR will not examine whether ESL transitional bilingual education developmental bilingual education bilingualbicultural education structured immersion or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students Instead OCR will examine whether the degree of segregation in the program is necessary to achieve the programs educational goals
NC Title III Application 2011-2012 Appendices Page 17 of 28
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX V (cont)
The following practices could violate the anti-segregation provisions of the Title VI regulation (1) segregating LEP students for both academic and nonacademic subjects such as recess physical education art and music [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the districts goals for the program
Use of the Castaneda standard to determine compliance with Title VI In determining whether a recipients program for LEP students complies with Title VI of the Civil Rights Act of 1964 OCR has used the standard set forth in Castaneda v Pickard 648 F 2d 989 (5th Cir 1981) Under this standard a program for LEP students is acceptable if (1) [the] school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or at least deemed a legitimate experimental strategy (2) the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school and (3) the schools program succeeds after a legitimate trial in producing results indicating that the language barriers confronting students are actually being overcome Id at 1009-10 The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA) PL No 93-380 codified at 20 USC sectsect 1701-1720 rather than on Title VI or its implementing regulation (20 CFR Part 100) The relevant portion of the EEOA (20 USC sect 1703(f)) is very similar to OCRs May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974[9] In Lau v Nichols 414 US 563 94 SCt 786 (1974) the Supreme Court upheld OCRs authority to establish the policies set forth in the May 1970 memorandum
For Attachments and additional notes in the Appendix httpwwwedgovprintaboutofficeslistocrdocslau1991html
NC Title III Application 2011-2012 Appendices Page 18 of 28
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX VI SAMPLE Budget Form
This format is not required
[Rows are BOLD to indicate Title III examples]
Please include all funding sources
Specify Title III PRC [104 andor 111] State ESL [054] or Other Fund source
Optional Funding Source School Staff LEPs Purpose PRC Object Role
All Schools 1 5270 Other 144 Interpreter ABC Elem 05 60 5270 Other 121 ESL Teacher By Golly Great Elem 05 70 5270 Other 121 ESL Teacher Creative High 1 75 5270 54 121 ESL Teacher Doggone Good Elem 1 100 5270 54 121 ESL Teacher Ever Super Middle 1 100 5270 54 121 ESL Teacher Free Willy Elem 1 ldquo 5270 54 121 ESL Teacher Free Willy Elem 2 NA 5270 54 144 ESL Teacher Assistants Creative High 05 NA 5270 104 135 SIOP Coach Ever Super Middle 05 NA 5270 104 144 Title III Parent Liaison Free Willy Elem 05 150 5270 104 144 Title III Parent Liaison Super Summer School 4 TBD 5350 104 121 Summer ESL Teachers All Elementary 1 NA 5270 104 121 ESL Lead Teacher
Example Proposed Materials amp Training Budget Item Purpose PRC Object Supplemental Purpose
Science Textbook for ELLs 5270 104 413 Additional content support for studentsTraining 5270 104 197 SIOP Trainer for schools
See Appendices VII amp VIII for special provisions for each allotment
NC Title III Application 2011-2012 Appendices Page 19 of 28
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX VII PRC 104 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION
PROGRAM REPORT CODE 104
UNIFORM CHART OF ACCOUNTS CODE XXXX-104-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To help ensure that children who are Limited English Proficient (LEP) including immigrant children and youth attain English proficiency develop high levels of academic attainment in English and meet the same State academic content and student achievement standards of non-LEP children and to assist LEAscharter schools in building their capacity to establish implement and sustain language instructional educational programs and programs of English language development for LEP children ELIGIBILITY LEAscharter schools having a sufficient number of Limited English Proficient students are eligible for funding Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAscharter schools LEP students including immigrant students and youth SPECIAL PROVISIONS 1 Any LEAcharter school earning less than $10000 based on the formula must enter a consortium with other LEAscharter schools For any new consortia created as of 2006 No more than five LEAs are allowed in one consortium Contact program administrators for the state consortium guidelines as well as consortium guidance from the Office of English Language Acquisition at the US Dept of Education 2 If an eligible LEAcharter school is a member of a consortium receiving an award under PRC 104 the LEAcharter schoolrsquos PRC 104 award shall be allotted to the fiscal agent for the consortium and the sum total of awarded funds shall be used to benefit all of the members of the consortium 3 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a timely project application is submitted each year 4 Program Administrators will notify the School Allotments Section of any LEAcharter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Funds must be used to supplement and not supplant existing resources
NC Title III Application 2011-2012 Appendices Page 20 of 28
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX VII (cont) 6 Administration expenditures are limited to 2 of total expenditures 7 One-day or short-term workshops and conferences are not permitted unless the activity is a part of an established comprehensive professional development program for an individual teacher 8 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February 9 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 67-68
NC Title III Application 2011-2012 Appendices Page 21 of 28
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX VIII PRC 111 Federal Allotment Formula
TITLE III - LANGUAGE ACQUISITION (SIGNIFICANT INCREASE)
PROGRAM REPORT CODE 111 UNIFORM CHART OF ACCOUNTS CODE XXXX-111-XXX CFDA 84365A TYPE Dollars TERM Up to 27 months PURPOSE To provide funds for enhanced instructional opportunities for immigrant children and youth designed to assist them in achieving in elementary and secondary schools including activities designed to assist parents in becoming active participants in the education of their children and activities designed to support personnel to provide services to immigrant children and youth Also provides funds for additional basic instructional services that are directly attributable to the presence of immigrant children and youth ELIGIBILITY LEAscharter schools LEAscharter schools having a significant increase in the percentage of immigrant students enrolled as compared to the average of the two preceding fiscal years Application must be approved prior to the LEAcharter school receiving the allotment Applications are due in May of each year FORMULA Funds are allocated on the basis of an annual headcount of the LEAcharter schools immigrant students SPECIAL PROVISIONS 1 If an eligible LEAcharter school is a member of a consortium receiving an award under (PRC 104) and also receives an award under Title IIIndash Significant Increase (PRC 111) the significant increase funds shall be allotted to the specific LEA The LEA recipient may choose to expend PRC 111 funds only for their LEA OR to combine their awarded funds to benefit all the members of the consortium The LEA andor consortium Title III Application(s) must reflect how the funds will be expended 2 Each project can be awarded funds for a period of time beginning July 1st and ending September 30th the following year The Tydings Amendment can extend the grant period to 27 months by allowing unexpended funds as of September 30th to carry over Funds are potentially available to LEAscharter schools for 27 months provided a project is submitted each year 3 LEA must be able to show how PRC 111 funding provides enhanced instructional opportunities for immigrant children and youth 4 Program Administrators will notify the School Allotments Section of any LEA charter school that does not have an approved budget by October 31st After this notification funds carried forward will be reduced from the LEArsquos charter schoolrsquos budget 5 Reallocation of funds Funding for current year projects not allocated will be redistributed to eligible units based on the current formula or program needs as determined by grant requirements by February
NC Title III Application 2011-2012 Appendices Page 22 of 28
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX VIII (cont) 6 Any un-allotted funds created from previous years will be used to cover allowable expenditures for current year projects until the previous years funds have been used 7 Funds must be used to supplement not supplant existing resources Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf pp 69-70
NC Title III Application 2011-2012 Appendices Page 23 of 28
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX IX PRC 054 State Allotment Formula
LIMITED ENGLISH PROFICIENCY
PROGRAM REPORT CODE 054 UNIFORM CHART OF ACCOUNTS CODE XXXX-054-XXX STATUTORY REFERENCE HB 1473 Section 79 (a) TYPE Dollars TERM July 1 through June 30 PURPOSE To provide additional funding to LEAscharter schools with students who have limited proficiency in English ELIGIBILITY Eligible LEAscharter schools must have at least 20 students with limited English proficiency (based on a 3-year weighted average headcount) or at least 2 12 of the ADM of the LEAcharter school Funding is provided for up to 106 of ADM FORMULA Calculate 3-Year Average Headcount Most current years available weighted twice (50) Two previous years weighted once (25) Base Allocation Each eligible LEAcharter school receives the minimum of 1 teacher assistant position 1 50 of the funds (after calculating the base) will be distributed based on the concentration of limited English proficient students within the LEA 2 50 of the funds (after calculating the base) will be distributed based on the weighted 3-year average headcount SPECIAL PROVISIONS 1 The funds shall be used to supplement local current expense funds and shall not supplant local current expense funds 2 Funds allotted for Limited English Proficiency must be expended only for classroom teachers teacher assistants tutors textbooks classroom materials instructional supplies equipment transportation costs and staff development needed to serve limited English proficient students 3 Funds may be transferred with no restrictions for FY 2009-2010 and FY 2010-2011 only by submitting an ABC Transfer Form Source Allotment Policy Manual FY 2010-11 httpdpistatencusdocsfbsallotmentsgeneral2010-11policymanualpdf p40
NC Title III Application 2011-2012 Appendices Page 24 of 28
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX X Supplement Not Supplant Final Letter 10-2-08_2 The Office of Elementary and Secondary Education and the Office of English Language Acquisition are issuing this guidance to provide States with information on several funding issues including ldquosupplement not supplantrdquo requirements under Title III of the ESEA This guidance represents the Departmentrsquos current thinking on these issues It does not create or confer any rights for or on any other person Furthermore this guidance does not impose any requirements beyond those required under applicable law and regulations If you are interested in commenting on this guidance please email the Department at oelaedgov or write to us at the following address US Department of Education Office of English Language Acquisition Lyndon Baines Johnson Building 400 Maryland Avenue SW Room 5C-132 Washington DC 20202-6510
Supplement Not Supplant Provision of Title III of the ESEA
Section 3115(g) of Title III of the ESEA (hereafter ldquoTitle IIIrdquo) provides as follows
SUPPLEMENT NOT SUPPLANT -- Federal funds made available under this subpart shall be used so as to supplement the level of Federal State and local public funds that in the absence of such availability would have been expended for programs for limited English proficient children and immigrant children and youth and in no case to supplant such Federal State and local public funds
In practice the prohibition against supplanting under Title III means that recipients may not use those funds to pay for services that in the absence of Title III funds would be necessary to be provided by other Federal or State or local funds 1 While the Department recognizes that to date some States may have interpreted the provision above as not applying to funds the State is able to retain for State-level activities under section 3111(b)(2) it is the Departmentrsquos interpretation of the law that the supplement not supplant provision of Title III applies to both funds retained for State activities ndash including the professional development planning and evaluation technical assistance and providing recognition activities described in section 3111(b)(2) ndash and Title III funds expended by subgrantees OMB Circular A-133 which offers general guidance on the application of supplement not supplant provisions explains that generally a supplanting violation is presumed when an institution uses Federal funds to provide services that it is required to make available under other Federal State or local laws See the 2008 Circular Andash133 Compliance Supplement which in accordance with 73 Fed Reg 32059 (June 5 2008) is available at the following Internet address httpwwwwhitehousegovombcircularsa133_compliance08eddoc
Supplanting and Provision of Language Instruction Educational Programs
States districts and schools are required to provide core language instruction educational programs and services for limited English proficient (LEP) students This requirement is established based on Title VI of the Civil Rights Act of 1964 and its implementing regulations as interpreted by the Supreme Court of the United States (including the Supreme Courtrsquos ruling in Lau v Nichols) and based on other significant case law (including Castaneda v Pickard) the Equal Educational Opportunities Act of 1974 and other Federal State and local laws Therefore the use of State or subgrantee Title III funds to provide core language instruction educational programs including providing for the salaries of teachers who provide those core services for 1 Title I Part A of the ESEA (hereafter ldquoTitle Irdquo) also includes a similar ldquosupplement not supplantrdquo provision in section 1120A(b) The ldquosupplement not supplantrdquo provision in Title I prohibits the supplanting of non-Federal funds A significant distinction between the ldquosupplement not supplantrdquo provision in Title III and the ldquosupplement not supplantrdquo provision in Title I is that the Title III provision prohibits supplanting of Federal as well as State and local funds whereas the Title I provision prohibits only the supplanting of State and local funds
NC Title III Application 2011-2012 Appendices Page 25 of 28
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX X (cont) LEP students would violate the supplement not supplant provision in section 3115(g) of the Act as such services are required to be provided by States and districts regardless of the availability of Federal Title III funds
Reducing State and Local Funding on the Basis of the Amount of Title III Funds A Local Educational Agency (LEA) is Eligible to Receive
The Department has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for LEP students based on the amount of Title III funds its LEAs receive Such statutes and policies violate Federal law Section 9522 of the ESEA specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children Furthermore any reduction in the amount of State funds an LEA receives to implement language instruction educational programs based on the receipt of Federal funds for its LEP population under Title III violates the non-supplanting provision of Title III Likewise any efforts by an LEA or school to reduce State and local funds expended to implement language instruction educational programs serving LEP students based on the receipt of Federal Title III grant funds also violates the non-supplanting provision of Title III In the absence of these Federal funds LEAs would still be required to provide language instruction educational services and would need to expend funds to serve LEP students For example the Department has encountered numerous Title III subgrantees that for budgetary reasons use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers Typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs not the Federal Government As a general rule the use of Title III funds to pay for services to LEP students that were paid for in prior years with State local or other Federal funds also raises a presumption of a violation of the Title III non-supplanting requirement An LEA may be able to rebut this presumption however if it can demonstrate through contemporaneous documentation that it would not have continued to provide those services for LEP students with State local or other Federal funds because for example of budgetary constraints or competing educational priorities
Use of Title III Funds to Develop ELP Assessments A number of States have asked the Department to provide more specific information on the allowable uses of Title III funds to pay for the costs of developing ELP assessments which are required under both section 1111(b)(7) of Title I and section 3113(b)(2) of Title III of the ESEA This section of this letter addresses this particular issue Generally a State or an LEA that is a Title III subgrantee cannot ndash without violating the non-supplanting requirement set out in section 3115(g) ndash use Title III funds to pay for the costs of developing annual ELP 2 State and local education agencies (SEAs and LEAs) have raised a few questions regarding supplanting issues under consolidated funding arrangements or within Title I schoolwide programs Under section 1114 of the ESEA an LEA that fully consolidates Title III funds with other State local and Federal funds as part of a schoolwide program does not in expending Title III funds have to meet most of the statutory requirements of that program including the non-supplanting requirement set out in section 3115(g) of the ESEA Each school however must identify the specific programs being consolidated and the amount each program contributes to the consolidation and maintain records that demonstrate that the schoolwide program addresses the intent and purposes of each of the Federal programs whose funds are being consolidated to support the schoolwide program In addition while section 3115(g) would not apply to a schoolwide program that consolidates Title III funds with other Federal funds section 1114(a)(2)(B) establishes a specific non-supplanting requirement for schoolwide programs Under that provision each school operating a schoolwide program must receive all the State and local funds it would otherwise receive to operate its educational program in the absence of Title I Part A or other Federal education funds ldquoincluding funds needed to provide services that are required by law forhellipchildren with limited English proficiencyrdquo The Department has recently issued non-regulatory guidance on Title I fiscal issues including on the consolidation of funds in Title I schoolwide programs This guidance which updates and modifies prior guidance on schoolwide programs issued by the Department can be found on the Internet at the following address httpwwwedgovprogramstitleipartafiscalguiddoc
NC Title III Application 2011-2012 Appendices Page 26 of 28
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
APPENDIX X (cont) assessments This is because section 1111(b)(7) requires States and LEAs to
provide for an annual assessment of English proficiency (measuring studentsrsquo oral language reading and writing skills in English) of all students with limited English proficiency in the schools served by the State educational agency
Because Title I requires States to administer annual ELP assessments in general it would be a violation of Title III supplement not supplant requirements to use Title III funds to develop such assessments This is because in the absence of Title III funds States would still be required to develop and administer an annual ELP assessment under Title I Note that the supplement not supplant provision applies to all funds made available under subpart A of Title III including funds the State retains for State-level activities under section 3111(b)(2) The Department recognizes that some States may have to date interpreted the supplement not supplant provision of Title III as not applying to State-level activities as section 3111(b)(2)(C)(iii) allows States to reserve funds to help subgrantees with such activities as ldquoidentifying or developing and implementing measures of English proficiencyrdquo However because of the Title III prohibition against supplanting other Federal funds there are only limited circumstances under which Title III funds reserved under section 3111(b)(2) may be used for costs related to ELP assessments Under Title III State educational agencies (SEAs) are required under section 3113(b)(2) to develop ELP standards The ELP assessments administered to determine whether Title III subgrantees are meeting Annual Measurable Achievement Objectives (AMAOs) under Title III must be aligned with the Statersquos ELP standards Because the alignment of the ELP assessment with ELP standards is not a requirement that an ELP assessment would otherwise have to meet under Title I a State may use Title III State Activity funds it receives under section 3111(b)(2) to either
(1) pay for the costs of developing an ELP assessment separate from the ELP assessment required under Title I that is aligned to the Statersquos ELP standards or
(2) pay for the costs of enhancing an existing ELP assessment required under Title I in order to align it with the Statersquos ELP standards required under Title III
If as is typically the case a single ELP assessment is used in a State to meet both the requirements of Title I and Title III only the costs that were incurred specifically to meet Title III requirements not otherwise required under Title I may be paid for with Title III funds
Use of Title III Funds to Administer ELP Assessments
Several States and LEAs have requested information from the Department about whether Title III State Activity funds andor LEA subgrant funds may pay for the costs associated with administration of a Statersquos annual ELP assessment Specifically States and LEAs have asked whether Title III funds may be used to pay for substitute teachers during test administration for the scoring or reporting of ELP assessment results for training incentives related to administering the ELP assessment or for materials or equipment related to the administration of annual ELP assessments In general the cost of administering such assessments may not be paid with Title III funds including funds reserved by the State for State-level activities because Title I already requires States to administer an annual ELP assessment to all LEP students
NC Title III Application 2011-2012 Appendices Page 27 of 28
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
NC Title III Application 2011-2012 Appendices Page 28 of 28
APPENDIX X (cont) In the case where a separate ELP assessment is administered for the purposes of Title III only the costs associated with administering such an assessment may be paid with Title III funds but only to the extent that those costs are over and above what would be required to administer the ELP assessment required to be administered to all LEP students in the State under Title I Therefore in general Title III State and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring State ELP assessments administered to LEP students as these activities are all related to the administration of a Statersquos annual ELP assessment required under Title I However in cases in which a State has a separate or particular assessment for Title III purposes only or prepares separate reports of student school or LEA performance for Title III purposes only Title III funds may be used for activities over and above what would have been in place absent the Title III requirements
Use of Title I and other Federal Funds for State ELP Assessments
There are funds available from Title I and other Federal programs to help States develop and administer their ELP assessments For example there is specific statutory authority for an SEA to use Title I State administrative funds either alone or consolidated with other ESEA administrative funds to develop State ELP assessments This authority is found in section 9201(f) of the ESEA which states ldquoIn order to develop challenging State academic standards and assessments a State educational agency may consolidate the amounts described in subsection (a) [consolidation of State administrative funds under any ESEA program or other program designated by the Secretary] for those purposes under Title Irdquo Because section 1111(b)(7) of Title I requires annual ELP assessments the Department believes that section 9201(f) authorizes the use of State administrative funds for this purpose In addition section 6111 of the ESEA which provides additional funds to States for assessments and related activities specifically permits a State to use those funds ldquoto pay the costs of the development of the additional State assessmentshelliprequired by section 1111(b)rdquo which includes annual ELP assessments Further section 6111(2) specifically permits the use of 6111 funds to administer the assessments required by section 1111(b) but only after development of the assessments is complete Finally the Department has awarded competitive enhanced assessment grant funds under section 6112 to consortia of States to develop ELP assessments in compliance with Title III
Screening and Placement Assessments for LEP Students
While most of the discussion above focuses on the annual ELP assessments States are required to develop and administer to track the progress of LEP studentsrsquo attainment of English language skills it should also be noted that States and LEAs are responsible for identifying LEP students who may need language education services regardless of their receipt of Federal funds Many States and LEAs have developed language assessments used for the purposes of screening students for language proficiency and placing students into core language instruction educational programs The development and administration of such screening or placement assessments may not be paid for out of Title III or Title I Federal funds This is because States and LEAs would be required to identify and make placement decisions for LEP students even without Federal funding Thus it would violate both the Title I and Title III ldquosupplement not supplantrdquo provisions to use such Federal funds for the development or administration of LEP screening or placement assessments
