I often hear from teachers who say their school has no ESL program and who ask me questions about providing services to ELLs in their classrooms.

For example, I was recently in a school with at least 100 ELLs and was told the ELLs received one period of ESL a week. I always assumed it was a national mandate through the Every Student Succeeds Act (ESSA) that our ELLs must be provided services. How can ELLs have equal access to education (which is a law) if there are no ESL programs or a certified teacher to provide services?

— Judie Haynes, veteran ELL educator (New Jersey)

Title III of ESSA does require local education agencies (LEAs) that receive Title III funding to use that money to offer language instruction educational programs to meet the needs of ELLs. However, Title III offers almost no guidance on what such services and support should look like, or how much of any service ELLs should receive or from what kind of teacher. In fact, section 3128 of ESSA explicitly forbids the U.S. Department of Education from mandating or precluding any particular curricular or pedagogical approach (although the Department can and does share research-based best practices, such as the English Learner Tool Kit).

The federal rules that are more relevant are Office of Civil Rights’ (OCR) policies on how LEAs can meet their civil rights obligations. Following the 1974 U.S. Supreme Court ruling in Lau v. Nichols that ELLs have the right to a meaningful education, the 1981 ruling in Castañeda v. Pickard established a three-pronged test used by OCR and federal courts to determine if schools are appropriately addressing the needs of ELLs. According to this standard, instructional approaches must be (1) based on sound theory, (2) implemented with sufficient resources and in such a way as to be effective, and (3) able to demonstrate that students are overcoming language barriers.

The Castañeda standard has been criticized for being a relatively weak protection because there are no empirical guidelines to determine what is appropriate in a given context and courts are reluctant to substitute their judgment for that of professional educators. Nevertheless, OCR and U.S. Department of Justice investigations into civil rights violations have played a major role in helping school districts—including in major cities like Boston, Denver, and San Francisco—develop comprehensive plans that include policies on ELL instructional approaches, identification and assessment, language access for parents, and so on.

Another way we can gauge what services students should receive is if they live in a state that has detailed requirements for how ELL services are to be offered. In New York State, for example, state regulations require schools to offer bilingual education if they enroll 20 or more ELLs in the same grade who speak the same language. Those regulations also spell out a minimum number of class periods of English as a new language instruction for beginning, intermediate, and advanced ELLs, and that those classes must be taught by certified ESOL teachers.

However, many states have no regulations whatsoever about ELL staffing or program delivery. Others take a middle ground by offering suggested (but not required) programs of study for ELLs or setting a required number of ESL teachers based on the number of enrolled ELL students.

It can be tricky to see at a glance whether ELLs are receiving appropriate services because schools have been shifting away from thinking of pull-out ESL as the preferred method of ELL instruction. Increasingly, ELL instructional programs include sheltered content classes, co-teaching, and ESL teachers consulting with and mentoring general education teachers to provide appropriate scaffolding and enrichment. Although there is no one right program that is appropriate in all cases, schools should be able to justify that their approach is intentional, adequately resourced, and effective.

— Dr. Julie Sugarman, Migration Policy Institute

Resources: 

Migration Policy Institute

U.S. Department of Education