Federal regulations threaten Civil Rights of Latinos

Do the U. S. Department of Education (USDOE) recently proposed regulations threaten the civil rights of English Learner (EL) students? The new regulation (34 C.F.R. §299.19 (c) (3)) would eliminate the use of state content assessment results and other evidence of actual classroom performance in English Learner (EL) program exit decisions, violate the rights of thousands of Hispanic, Chinese, Haitian, and other language minority parents to have meaningful input into the education of their children, silence the voice of teachers into program exit decisions, and disrupt the rules and procedures in place in most of the nation’s schools and districts and in all of Florida’s. These changes would result in harm to ELs since premature termination of language and academic support would increase their risk of school failure and negatively impact their life chances.

Entry and exit criteria determine who becomes eligible for the benefits of program participation, how students become eligible, and for how long they remain eligible.  If students are reclassified on the basis of one sole score on an English Proficiency (ELP) test and are thrust into mainstream classes before they are ready, the challenges they face in meeting achievement standards are magnified. To meet our legal and moral obligations as educators, we must provide English Language Learners opportunities to learn the English language, to learn the subject matter required for grade to grade promotion and graduation, and to acquire the academic language needed for success in school, higher education, and life.  To accomplish these goals, parents and educators must consider factors in addition to the results of an (ELP) assessment (a test of language skills that does not assess content knowledge and is administered only to ELs) when making high-stakes placement decisions.

Psychometric Standards

The proposed regulation ignores the need for multiple measures upon which to base decisions that will have major impact on a student, the practice recommended in Standard 12.10 of the Standards for Educational and Psychological Testing (American Education Research Association, 2014). For years the federal courts have given weight to these standards in deciding how the use of tests should be judged in the context of protecting civil rights. A prior version of the standards (American Psychological Association, 1966) was used by the Supreme Court in discrimination cases back to at least 1975 (Albemarle Paper Co. v. Moody).

Civil Rights Compliance

The proposed regulation goes against the letter and spirit of the Every Student Succeeds Act of 2015 (ESSA) Titles I and III and other federal statutes and court decisions by ignoring one of their major goals for Els: grade level achievement in the content areas.

The proposed regulation is not consistent with the emphasis on academic as well as linguistic development presented in the statements of purpose in key sections of ESSA (2015), excerpts copied below, or with court decisions such as Castañeda v. Pickard or with the Equal Education Opportunity Act of 1974.

ESSA Title I

SEC. 1001. STATEMENT OF PURPOSE. The purpose of this title is to provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.


SEC. 3102. PURPOSES. ‘‘The purposes of this part are— (1) to help ensure that English learners, including immigrant children and youth, attain English proficiency and develop high levels of academic achievement in English; 2) to assist all English learners, including immigrant children and youth, to achieve at high levels in academic subjects so that all English learners can meet the same challenging State academic standards that all children are expected to meet (ESSA, 2015).

There are two sets of requirements, linguistic and academic. To meet civil rights requirements for ELs we need measures for both. ELPs measure language, not academic achievement. State assessments measure content knowledge. To measure progress towards both goals we need information from both types of assessments along with other data and parent and teacher input to inform EL placement decisions.

The WIDA consortium includes thirty-eight states and territories that share common English language proficiency standards and a common ELP assessment, ACCESS for ELs (ACCESS). In total, WIDA member states assess over 1.5 million English learners annually. Comments on the proposed regulation submitted by Dr. Timothy J. Boals, Executive Director, WIDA and WIDA Board National Policy Subcommittee Co-chair, illustrate the impediment to civil rights compliance approval of the proposed regulation would impose.

It is our opinion that effective language instruction and assessment programs stress the need for educators to make informed decisions and consider factors in addition to the results of the ELP assessment when making high-stakes placement decisions. Especially, when such decisions have significant implications for an ELs’ future academic success. In order to ensure compliance with the Office for Civil Rights’ (OCR) three-part test based on Castañeda v. Pickard, 648F. 2d 989 (5th Cir. 1981), whereby school districts must ensure that the bilingual programs or practices it uses are: (1) based on sound educational theory, (2) implemented effectively with resources, and (3) the program must be proven effective in overcoming language barriers (Boals, July 29, 2016, p.5).

The Council of Great City Schools (CGCS) points out an additional obstacle to compliance with civil rights mandates. Approval of the proposed regulation to eliminate additional reclassification exit criteria could lead to an overemphasis on ELP scores. The focus on this proficiency metric would narrow the curriculum available to ELs by discouraging attention to instruction in the content areas required by state and federal law and lead to elimination of dual language programs (Casserly,  2016).

The CGCS highlights the need to evaluate ELs’ ability to apply their English language skills to meet academic requirements prior to their reclassification. “ In fact, the proposed regulations also preclude using any academic content assessments in the process of determining whether an EL should be exited from English Learner status – discounting any practical demonstration of a student’s ability to handle core curricular content in English (Casserly, 2016, p. 4).

The use of results from content tests meets this “proof of the pudding” standard and is a safeguard against the placement and classification errors that would result from use of one sole measure, the ELP, in making program exit determinations. The most direct way to be sure ELs can meet the state’s requirements on state assessments is to include their scores on those content examinations, along with their ELP scores and parent and teacher input, among the multiple measures that contribute to exit decisions. Including both achievement test and ELP results responds to mandates for language instruction and for instruction leading to success in school and life. Both areas must be considered.  At the same time, we must be mindful as well of the effects of misplacements on ELs’ school ratings and teacher evaluations.

Access to the Curriculum

Florida’s experience leads to the conclusion that the use of content assessments and parent and teacher collaboration as part of the exit process does not deny ELs access to the curriculum. Florida ensured the participation of ELs in core classes twenty-five years ago when the principle that all teachers of ELs in all subjects must be prepared to provide them understandable instruction was incorporated in state board of education rules. In Florida, ESOL curriculum addresses the same goals as the English Language Arts curriculum and ESOL students receive instruction in the core subjects.

Florida ELs are not denied at opportunity to successfully achieve. On the contrary, their ability to meet challenging state academic standards is demonstrated by the 8.1 point increase in EL graduation rates over the five year period from 2010-11 to 2014-15. (Solochek, Oct. 17, 2016).  Passing the Florida Standards Assessment (FSA) (which assesses standards designed to prepare students for success in college and career) is a graduation requirement.

Nevertheless, there is no doubt that the temporary condition of being an English Learner is a barrier to academic progress in classrooms where the language of instruction is English.  In Florida, the EL graduation rate is some 25 to 30 points lower than that for the state’s highest scoring demographic subgroup. However, changing the methods for reclassification to accelerate elimination of the classification as EL does not in and of itself change the condition or guarantee Former ELs’ success in or even entry into higher level courses.  What it does do is inflict upon ELs the consequences of precipitate removal of support services for those who still need them.

Should problems of access to the curriculum arise, enforcement of existing civil rights laws is a remedy that avoids the harm to ELs that the proposed regulation would inflict.

Parent and Teacher Input

While ESSA (2015) includes in multiple sections of the law requirements for parent involvement, engagement, outreach, and notification, the proposed regulation would eliminate involvement and communications from parents on high stakes program exit decisions. This could jeopardize the future of the more than a quarter million EL students in Florida. But the issue is not unique to any one state. For example, in Texas, with 773,732 EL students, reclassification decisions are made by parents and teachers coming together in teams to review all aspects of an EL student’s progress. So too in California, reclassification of students relies on parental input together with that of teachers as they review the data for their 1,521,772 EL students (see Florida Department of State, n.d.; Linquanti, Cook, Bailey, and MacDonald, 2016; State Procedures, 2011; Texas Education Agency, 2016-17).  The rights of EL’s parents to have meaningful input into their children’s education would be swept aside by the new U.S. Department rule. The parents of more than 2.5 million ELs in FL, TX, and CA alone (Migration Policy Institute, 2015) stand to lose their rights to take part in critical decision about their children’s education under this draft regulation.

Local and State Control

The flexibility introduced in ESSA to bolster local and state control of education is diminished by executive overreach in §299.19 (c) (3).

There is disparity between proposed regulation §299.19 (c)(3) and what Congress meant to require and prohibit, and between that proposed regulation and what is widely followed local practice and what is widely followed local practice in jurisdictions operating under federal civil rights orders and plans.

While the importance cannot be overstated of avoiding the legal complexities that would ensue were a federal regulation to conflict with federal court orders, §299.19 would also create havoc in other areas of the country. For example, in Arkansas, “no ELL exits a program without passing the state exams, achieving a strong fluency score on well-established ESOL proficiency assessments, making good grades in content classes (notably Science and Social Studies), or having the support of their teachers” (E. Dwyer, personal communication, Oct. 21, 2016; Kerr, August 4, 2015).

Section 3113 (b) (2) of ESSA (2015) states only that   ’’…the [state] agency will establish and implement…standardized, statewide entrance and exit procedures…”.  Congress said nothing about banning content tests, nothing about limiting parent or teacher input. What it did say is that it wants standardized procedures throughout a state and annual assessment of English language proficiency.

Moreover, the proposed regulatory language that goes beyond statutory requirements is not needed to ensure that the intent of Congress is met. In Florida, for example, we have a standardized procedure required in every district and every school. The standardized procedure considers both content and ELP assessment results and five additional sets of data, as well as parent and teacher input. State law authorizes the state board of education to specify in rule the elements in the state’s standardized procedures (English Language Instruction, n.d. ; Florida Department of State, n.d.).

While Congress was silent on matters included in the proposed regulation, it was clear and specific on actions by the U.S. Secretary of Education that are prohibited.  Forbidden actions include promulgation of any rule or regulation that would be in excess of statutory authority granted to the U.S. Secretary of Education, adding or deleting one or more specific elements of the state measurements, and establishing specific academic assessments or assessment items that states or local agencies must use to meet the requirements of ESSA or otherwise use to measure student achievement or student growth.

The discussion so far has described how §299.19 (c) (3) clashes with state law in states such as Florida with standardized procedures codified in state rule and flouts statutory limitations on its rule making authority. However, there is an even more remarkable deviation between the proposed regulation and statute to be considered: §6846, ESSA (Legal Authority Under State Law, Dec. 10, 2015).

Legal Authority Under State Law

Nothing in this part shall be construed to negate or supersede State law, or the legal authority under State law of any State agency, State entity, or State public official, over programs that are under the jurisdiction of the State agency, entity, or official.

Congress never intended for ESSA to force districts or states to violate their state laws on the education of ELs. Nevertheless, that is exactly what §299.19 (c) (3) would do.

The proposed regulation would apply to all Els in all grades in all districts in all states. The draft rule is far reaching but without roots in the statute, as the proposed regulation goes well beyond the stated will of the Congress.  Yet there has been inadequate consideration by policy makers and the public of its implications for:

  1. a) local and state control, disruption of current practice, and executive overreach,
  2. b) parent and teacher input,
  3. c) compliance with state and federal civil rights requirements,
  4. d) the social and economic consequences for ELs who would face increased risk of failure if prematurely ejected from language and academic support programs, and
  5. f) the increased costs to cash strapped school districts needlessly obliged to deliver remedial services to an artificially created group of academically delayed students.

Current Practice

Linquanti, et al. (2016) report that “29 states and the District of Columbia rely solely on the state ELP assessment for reclassifying ELs (p. 89)”. The remaining 42% of the states use various combinations of additional criteria, such as content test results, teacher and parent input, and course grades.

When consideration shifts to the number of schools and districts affected, the disruptive effect of the regulation becomes even more apparent. According to the Council of Great City Schools 2016 ELL Identification and Exit Survey (Casserly, 2016, p. 2):

  • In more than half of the responding urban districts, the Bilingual/ESL Teacher (70 percent of responding districts), the Classroom Teacher (63 percent), and parents (53 percent) participate in the collaborative process to determine whether or not to exit an EL from EL status.
  • Over one-third of the districts listed a number of additional individuals who are involved in the exiting process: Bilingual/ESOL staff (48 percent), principal (45 percent), and Language Proficiency Assessment Committees (40 percent).

Moreover, a reliance on a single-measure–the ELPA score—disavows the second obligation under Lau, which is to ensure that ELs have equal access to content instruction, and goes against practices in a majority of districts designed to ensure ELs are academically successful in the content areas. The Council’s 2016 ELL Survey also found that:

  • 59 percent of district do not use the ELPA as the single determinant for exiting ELs, and
  • 73 percent of districts also consider performance on state content assessments in making the determination whether to exit a student from the EL subgroup.

Up-ending the decisions to use content assessments and other additional criteria as part of exit procedure decisions would radically undermine what states and districts are now doing, the role of teachers, and the role of parents.

Risk of Failure for Els when Exit Decisions on Based Solely on their ELP scores

A study published this month by WestEd Regional Education Laboratory researchers illustrates the danger of program exit based solely on results from ELP tests. The study followed two cohorts of ELs in Arizona and Nevada (one cohort of 3rd grade students and one of 6th grade students) over three years. The recently reclassified middle school students had difficulty passing state math and language arts exams. “This study provides evidence that many English-learner students may not yet be ready for full academic success within two years of reclassification and placement in mainstream English-only classes”, Haas, Tran and Huang conclude (2016, p.14).

The study found that grade 3 ELs in both states could score below the proficient level on an ELP and still have a 50/50 chance or better of passing the English language arts content test at least once in the two years following the English language proficiency assessment.  However, to have a 50/50 chance of better of passing the English language arts content test, Arizona grade 6 English learner students needed a scale score of at least 15 points above the proficiency threshold. Nevada grade 6 English learner students needed a scale score of at least 41 points above the proficiency threshold (Haas, et al., 2016).

The authors draw the following implications from their study pertinent to this discussion of the proposed regulation to limit exit criteria to one sole score on an ELP test.

So even though those grade 6 English learner students had scored high enough to test out of the English language development support program, their performance on subsequent content tests indicates that most continued to struggle with the higher demands of English language arts and math for the next two years (Hass, et al., 2016, p.12).

As grade level increases, a growing gap seems to develop between the English proficiency level needed to score well on the English language proficiency assessments and the academic literacy needed to pass the English language arts and math content tests at least once in the two years following the English language proficiency assessment (Hass, et al., 2016, p.13).

… decisions about placement in English-only classrooms or about providing additional support for students in English-only classrooms might depend on more than just English language proficiency assessment scores, and might include the characteristics of students in additional English learner subgroups that will enable more focused diagnostics (Hass, et al., 2016, p.14).

The stated USDOE rationale for the proposed rule (Fed. Reg. May 31, 2016) rests on a series of things that “may” happen to hypothetical students whereas we know from Tables A-3 and A-4 (Haas, 2016) of the recent WestEd study what “did” happen to students who were prematurely exited from their EL programs. Many failed.

Suggested Actions for Advocates

Share your opinions about 34 C.F.R. §299.19 (c) (3) with the members of your congressional delegation as soon as possible. You may want to use or adapt the following suggested message and request.

Sample Letter

Dear Senator:

Florida’s quarter million English Learners (Els) and the nation’s five million ELs need your help.

The U. S. Department of Education has proposed regulation 34 C.F.R. §299.19 (c) (3). This regulation would eliminate the use of state content assessment data in EL program exit decisions, violate the rights of thousands of Hispanic, Chinese, Haitian, and other language minority parents to have meaningful input into the education of their children, silence the voice of teachers into program exit decisions, and disrupt the rules and procedures in place in over 70% of the nation’s schools and districts and in all of Florida’s school districts.

These changes would in turn result in harm to ELs since premature termination of language support would increase their risk of failure.

The proposed regulation goes beyond the stated will of the Congress and is a glaring example of executive overreach.

Requested Action

Please use every means at your disposal to persuade the U.S. Department of Education and the Office of Management and Budget to postpone action on Proposed Regulation 34 C.F.R. § 299.19(c)(3) until such time as a new administration can review its implications for:

  1. a) local and state control, disruption of current practice, and executive overreach,
  2. b) parent and teacher input,
  3. c) compliance with state and federal civil rights requirements,
  4. d) the social and economic consequences for ELs who would face increased risk of failure if prematurely ejected from language and academic support programs, and
  5. f) the increased costs to cash strapped school districts needlessly obliged to deliver remedial services to an artificially created group of academically delayed students.


Thank you for your ongoing interest in the welfare of English Learners.



Links to the Senators’ Web Sites

Copy and paste your message in the email form in the Contact section of the senators’ web sites.

All Senators: http://www.senate.gov/senators/contact/

Members of Senate Health, Education, Labor, and Pensions Committee: https://www.help.senate.gov/about/members

Members of House Education and Workforce Committee: http://edworkforce.house.gov/committee/subcommitteesjurisdictions.htm


In conclusion, It’s possible to have both standardized statewide procedures and commonsense exit criteria. The statutory requirement in ESSA for standardized statewide entrance and exit procedures can be met without creating the threat to student success, local control, and parent and teacher input that approval of §299.19(c )(3) would entail. We don’t need rules whose effect will be to hustle students, ready or not, out of existing programs.

Rosa Castro Feinberg, Ph. D. rcf2012@att.net

Associate Professor (Retired), College of Education, Florida International University; National Origin Desegregation Assistance (Lau) Center Director and Research Professor, University of Miami; Teacher, Gadsden, Leon, and Dade Counties: ESOL, Spanish, Debate, Language Arts. Chair, Government and Media Relations Committee, LULAC Florida

Dr. Rosa Castro Feinberg has been a teacher (English, Spanish FL, Spanish-S, ESOL, and Debate); the Director of Title VII funded teacher training programs and Director of the University of Miami National Origin Desegregation Assistance Center (the LAU Center) providing training and technical assistance on educational equity for language minority students to school districts and state education agencies in a 14 state area; a consultant for Ministries’ of Education in Guatemala, Honduras, the Dominican Republic, and Spain; a school board member (the first Hispana to be elected county-wide in Dade County); and a faculty member in the Department of Foundations: Urban, Multicultural, and International Education, College of Education, at Florida International University.


Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). Retrieved from https://scholar.google.com/scholar_case?case=8752726713628473911&q=Albemarle+Paper+Co.+v.+Moody&hl=en&as_sdt=40006&as_vis=1

American Educational Research Association, American Psychological Association, & National Council on Measurement in Education (AERA/APA/NCME). (2014). The standards for educational and psychological testing. Washington DC: Author.

American Psychological Association (1966). Standards for educational and psychological tests and manuals. Washington DC: Author.

Boals, T. J. (July 29, 2016). Comments on NPRM, Docket ID: ED-2016-OESE-0032. Retrieved from https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&s=299.19(c)(3)&D=ED-2016-OESE-0032

Casserly, M.  (July 28, 2016). Comments on NPRM for ESEA, as amended by ESSA – Accountability and State Plans. Council of the Great City Schools. Comments on ELL Issues Docket ID ED-2016-OESE-0032; RIN 1810-AB27, 2,3.

English language instruction for limited English proficient students (n.d.). 1003.56. The 2016 Florida Statutes. Retrieved from http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=esol&URL=1000-1099/1003/Sections/1003.56.html

ESSA. Every Student Succeeds Act of 2015, Pub. L. No. 114-95 § 114 Stat. 1177 (2015-2016). Retrieved from https://www.gpo.gov/fdsys/pkg/BILLS-114s1177enr/pdf/BILLS-114s1177enr.pdf

Federal Register. 81 §299.19, 34586 (proposed May 31, 2016). Retrieved from https://www.gpo.gov/fdsys/pkg/FR-2016-05-31/pdf/2016-12451.pdf

Florida Department of State (n.d.).  Florida Administrative Code and Florida Administrative Register. Author. Retrieved from https://www.flrules.org/

Haas, E., Tran, L., & Huang, M. (2016). English learner students’ readiness for academic success: The predictive potential of English language proficiency assessment scores in Arizona and Nevada (REL 2017–172). Washington, DC: U.S. Department of Education, Institute of Education Sciences, National Center for Education Evaluation and Regional Assistance, Regional Educational Laboratory West. Retrieved from http://ies.ed.gov/pubsearch/pubsinfo.asp?pubid=REL2017172

Kerr, T. (August 4, 2015 ). ELL Updates 2015-16. Arkansas Association of Educational Administrators (AAEA) Conference, Little Rock, Arkansas. August 3, 2015 to August 5, 2015. Retrieved from http://www.arkansased.gov/public/userfiles/Learning_Services/English%20Language%20Learners/EL_Updates_Summer_AAEA_Conference_2015-16.pdf

Legal authority under State law. §6846.  Every Student Succeeds Act of 2015, Pub. L. No. 114-95 § 114 Stat. 1177 20 USC (Dec.10, 2015).

Linquanti, R., Cook, H. G., Bailey, A. L., & MacDonald, R. (2016). Moving toward a more common definition of English Learner: Collected guidance for states and multi-state assessment consortia. Washington DC: Council of Chief State School Officers.

Migration Policy Institute, National Center on Immigrant Integration Policy, Ell Information Center. 2015 States and districts with the highest number and share of English language learners. Fact sheet series, No. 5. Retrieved from  http://www.migrationpolicy.org/research/states-and-districts-highest-number-and-share-english-language-learners

Solochek, J.S. (Oct. 17, 2016). Florida makes gains in high school graduation rate. Tampa Bay Times Gradebook. Retrieved from http://www.tampabay.com/blogs/gradebook/florida-makes-gains-in-high-school-graduation-rate/2298448

State procedures for identifying and classifying English language learners. In National Research Council. (2011). Allocating Federal Funds for State Programs for English Language Learners. Panel to Review Alternative Data Sources for the Limited-English Proficiency Allocation Formula under Title III, Part A, Elementary and Secondary Education Act. Committee on National Statistics and Board on Testing and Assessment. Division of Behavioral and Social Sciences and Education. Washington, DC: The National Academies Press. Retrieved from https://www.nap.edu/read/13090/chapter/6

Texas Education Agency, Curriculum Division (2016-2017), Language Proficiency Assessment Committee (LPAC) Framework Manual. Author. Retrieved from http://programs.esc20.net/users/files/LPAC/2016-2017/Framework/05LPAC_Manual_Resources_2016-2017.pdf

34 C.F.R. § 299.19(c)(3); ED Proposed Rules, 81 Fed. Reg. 34621 (proposed May 31, 2016). Retrieved from https://www.gpo.gov/fdsys/pkg/FR-2016-05-31/pdf/2016-12451.pdf



  • Jose L. Rodriguez

    My opinion…This is a waste of time. The US has NO official language. Why stress proficiency in English? Spanish is the second most used language in the US. Why not emphasize proficiency in Spanish for non-English speaking students? Or any other language for that matter.


  • I’m not sure I agree with you For anyone

    Sent from my iPhone



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