Judge: State must help all English learners

Credit: ACLU of Southern California

Mark Rosenbaum, chief counsel of the ACLU of Southern California, says LA Unified should be spending more on high needs children

A judge has ruled that the state is ultimately responsible for seeing that school districts provide services to all English language learners not receiving the help they need to become proficient in English.

Los Angeles County Superior Court Judge James Chalfant ruled Tuesday in the lawsuit that the ACLU of Southern California and the Asian Pacific American Legal Center brought against the state Department of Education, the State Board of Education and state Superintendent of Public Instruction Tom Torlakson. The lawsuit, filed last year, claimed that the state failed in its legal obligation to ensure that all English learners get the language instruction to which they were legally entitled. The half-dozen unnamed English language learners in the lawsuit were among the 20,318 students whom school districts acknowledged in a 2010-11 annual survey were not being served.

Those students constituted less than 2 percent of the state’s 1.4 million English language learners. The failure of the state to act on their behalf violated a 30-year-old federal law as well as the state Constitutional guarantee that all students are entitled to an equal opportunity for an education, Chalfant ruled.

“A state cannot abdicate its supervisory responsibilities by ignoring credible evidence of persistent or significant district noncompliance,” Chalfant wrote in his 45-page ruling. “If districts fail to provide services (to English language learners) and the state has notice of this failure, the state has a duty … to take reasonable action.” Chalfant ordered the state to present a plan that will ensure services are effectively provided.

“It’s unfortunate that we had to go to court to get state officials to pay attention when children are receiving no services whatsoever,” said Mark Rosenbaum, chief counsel for the ACLU. “This ruling said English learners count.”

The state issued no response to the ruling and has not indicated whether it intends to appeal the decision.

“It’s unfortunate that we had to go to court to get state officials to pay attention when children are receiving no services whatsoever,” said Mark Rosenbaum, chief counsel for the ACLU. “This ruling said English learners count.”

In his ruling, Chalfant referred to a brief that the federal government submitted on behalf of the ACLU agreeing that the state had not met its legal responsibility. “California’s (English language learner) students cannot afford to wait any longer,” wrote acting U.S. Attorney General Jocelyn Samuels.

The lawsuit was filed in April 2013, before the state Legislature passed the Local Control Funding Formula, shifting most authority over spending decisions from the state to local districts. The law provides additional money for English language learners and requires that districts provide extra services to those students and be held accountable for the results.

The new funding and accountability system wasn’t at issue in the lawsuit. Chalfant’s ruling, however, could serve as a reminder that, in the end, the state remains responsible for meeting children’s basic educational rights.

The state also receives federal Title III money for English language learners ­– about $105 per student ­– and is responsible for monitoring the use of the money and for enforcing the federal Equal Education Opportunities Act.

It did that through an annual Language Census and onsite evaluations of about 60 districts per year (about 6 percent of districts overall, with larger districts reviewed more frequently). The self-reported survey asked districts to categorize the type of services it provided English language learners. There was also a box to indicate no services were provided. That’s where the 20,300 figure, checked by 251 districts, was derived.

The state argued that the annual survey was designed as a planning document, not for monitoring purposes, because it was prone to data entry errors and other problems. As proof, the Department of Education sent a letter to districts after the lawsuit was filed, giving districts a chance to verify the data and correct mistakes. Some did. The Grossmont Union High School District, for example, said mis-categorization was why 1,389 students were identified as not getting English language services.

Rosenbaum called the department’s letter an effort “to try to twist the arm” of districts to redo the data they already had certified.

Chalfant called the state’s argument a “red herring,” because the state failed to follow up with the 60 percent of districts that didn’t respond to its letter or to document whether the answers were accurate. And it ignored evidence that some students weren’t getting help. “The state failed to show that the reports are so unreliable that they lack credible weight,” Chalfant wrote.

The state Department of Education discontinued the annual language survey after 2010-11 but continued to collect data on districts’ English language services through the new statewide student data system, CALPADS. But last year, the state no longer sought information about students receiving no services, Chalfant noted.

The only action the state took was to modify the reporting requirements in 2013 “so that it will be impossible for districts to make such admissions in the future,” Chalfant wrote.

“After we filed the lawsuit, the state shot the messenger,” Rosenbaum said.

Filed under: Federal Education Policy, High-Needs Students, State Education Policy

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14 Responses to “Judge: State must help all English learners”

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  1. Don on Aug 17, 2014 at 11:00 pm08/17/2014 11:00 pm

    • 000

    “Dennis Kelly, president of the United Educators of San Francisco, also suggested that the system ensure an adequate supply of substitutes and to look at training teachers during the summer months rather than pulling teachers out of class. It’s an expensive proposition, he acknowledged, but one that should be considered.”


    S.F. teachers miss more school than students on average

    Jill Tucker

    Published 7:28 pm, Sunday, August 17, 2014

  2. Gary Ravani on Aug 17, 2014 at 8:21 pm08/17/2014 8:21 pm

    • 000

    As referenced in another article on this site, bilingual education may well be making a much needed return in the state. That will bring much needed assistance to ELL students in the content areas. This will also depend on ramping up training and credential programs for bilingual teachers.

    As usual with judges, this ruling is a matter of “dancing with the stars” around the peripheries of the real problems in CA. The highest poverty rates in the nation with struggling social services. Students need support outside of school so they can do well inside of school.

    The we have CA at the bottom of the nation in terms of dollars spent for K-12 education per student. There is a legal definition for “adequacy of education funding” with precedents set in many other states. CA does not come close to meeting the standards for school funding adequacy. So how’s that for a standard not being met? Any judges willing to say the state is not being held accountable?

    These issues impact nearly all students in CA and ELL students in particular. Lack of economic and social support at home and in communities and then schools unable to provide the supports of reasonable class sizes, nurses, councilors, and librarians because of lack of funding.

    These would be difficult legal decision to make. Not just that ELL students are not being served, but that the schools are not provided capacity by the state to adequately serve the students. (And let’s not go to LCFF which is about how we divvy up inadequate funding not about providing adequate funding,)

    Are there any bold legal action advocates and bold judges who can tackle the reality of problems in CA’s schools? Or will it just be considered enough to scapegoat the teachers who have to struggle within the resource starved education system? To this point we have a strong hint. And it’s not a pretty picture.


    • a 2yr local board member on Aug 19, 2014 at 10:53 am08/19/2014 10:53 am

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      Gary – we have a Bold Governor and a Bold Legislature. They have passed the LCFF. Funding Formula is at least 20% more per “target” student, and that is ELL and ED. It can be (for example in a district with 95% “unduplicated”) 33% more for a district with this large a percentage of EL, ED students.
      That is enough for some major “Summer Matters” paid summer academic programs, after-school academic tutoring, longer school days/smaller student loads, longer school years/larger adjusted teacher salaries. Or just “more PD”. Your choice of mix – if the ‘your’ is the type of Local Control envisioned by Dr. Kirst, Gov. Brown and the Legislative leaders.
      I’m sort of just glad the process is evolving in the Supplementary Grant $ and the Concentration Grant $ amounts. I don’t think the educational system could have absorbed it all-at-once.

  3. Vanessa Calderon on Aug 17, 2014 at 11:06 am08/17/2014 11:06 am

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    More mandated professional development is required, content area teachers don’t have the skills to teach “language” and if we want our ELs to succeed everyone teacher most teach language along with content. Also, ELs with more academic needs should placed with skilled teachers, not just mixed in the mainstream.


    • Gary Ravani on Aug 17, 2014 at 8:45 pm08/17/2014 8:45 pm

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      Quality professional development, like “quality” anything else, has costs attached and in CA the term “cost” in education circles is a conversation stopper. This why Gates has such an undue influence on education. The dollars that flow from his foundation are, literally, the biggest chunk of change available to do much beyond day to day business.

      CA funded up to 8 professional development days some years ago and then, as in other positive programs (e.g., PAR and National certification) the funding was diverted or cut altogether.

      As far as I am aware most teachers in CA are now in one way or another certified to teach ELL. New teachers get the training in their teacher preparation programs. This does not mean further professional development is not needed. But, once again, CA is going to have to money where its mouth is. And, in CA, that is a very difficult thing to accomplish. The Governor, in concert with the unions, did get Prop 30 passed that stemmed the cuts. But, it was very difficult.

      • Don on Aug 17, 2014 at 10:06 pm08/17/2014 10:06 pm

        • 000

        Professional development days usually means fewer instructional days for students with their regular teachers. but students shouldn’t have to pay the price for teacher development. It’s one step forward and one step back. More PD is an absolute necessity for something like CCSS. But a couple of days of PD will have very little effect on providing the services needed for English Language Development which requires far more in the way of focused bilingual instruction skills, not just a day or two of EL seminars or even CELDT certification. Union and statutory reform to increase the work year by 2 or 3 weeks would allow teachers the time to receive increased PD in the summer and would still afford them a vacation far longer than that of most everyone else. Their salaries would increase, students would have more quality instructional time and PD would be increased. Of course that will never happen because the money is there for it and teacher unions wouldn’t stand for a longer work year. And they say what benefits teachers benefits students. Balderdash!

        • Don on Aug 17, 2014 at 10:33 pm08/17/2014 10:33 pm

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          correction: “because the money isn’t there”

        • el on Aug 18, 2014 at 9:58 am08/18/2014 9:58 am

          • 000

          The 8 days of professional development were paid days in addition to the 180 student attendance days. Districts and their unions have the option to continue to negotiate these days into the contract, but of course when money was extremely tight, this was often an area that was cut.

          • Gary Ravani on Aug 18, 2014 at 9:51 pm08/18/2014 9:51 pm

            • 000

            It has been some years, El, but I do not believe that those days are available under any circumstances. At least as far as the state funding them. Budget cuts. I do recall that you are right that they were outside the regular instructional year and I do not recall any districts/unions not taking advantage of the opportunity.

          • el on Aug 19, 2014 at 8:28 am08/19/2014 8:28 am

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            Gary, at least some districts elected to keep some of those days and still have them, at their own direct expense.

            But, in the name of “keeping cuts away from the classroom” this was certainly a juicy target. Like many such cuts, it still probably hurt the kids.

  4. Jack in CA on Aug 14, 2014 at 9:04 am08/14/2014 9:04 am

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    Mary, “blaming the victim” comments do very little to advance dialogue. English language learners have been a long neglected group of students in California schools. Unfortunately, it takes a court ruling to move us forward. However, if that is what it takes to hold California schools accountable for providing ALL students the instructional services required to assure an equitable school experience, then so be it. California school boards and their superintendents have a long established history of responding to compliance orders than to do the right thing on behalf of students in the first place.


    • a 2yr local board member on Aug 19, 2014 at 10:20 am08/19/2014 10:20 am

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      I would have to agree with this. The status quo is very strongly protected by the institution of the CSBA in-my-opinion.

  5. Mary on Aug 14, 2014 at 8:09 am08/14/2014 8:09 am

    • 000

    Perhaps services WERE offered but just not used by the students. How much faith can you have in data from a survey taken by a student lacking in English language skills?


    • John Fensterwald on Aug 14, 2014 at 8:27 am08/14/2014 8:27 am

      • 000

      The survey was filled out by districts, not students, Mary.

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