An IDEA for improving English language learners' access to education.

AuthorArcherd, Erin
PositionIntroduction through II. The Promise of the IDEA C. Maybe Lawsuits Are Not the Answer: How the IDEA Can Help 1. The IDEA's Dispute Resolution Procedures, p. 351-378

Abstract

English Language Learners (ELLs) and language-minority families have few promising options for receiving tailored educational services under federal law. Civil Rights era statutes like the Equal Education Opportunities Act (EEOA) designed to protect and promote ELLs' right to an education have led to few actual changes in children's education, and fewer still within reasonable time frames. For the subset of ELLs with disabilities, the Individuals with Disabilities Education Act (IDEA) holds out the promise of more direct and immediate improvements in their education. The Introduction of this Article presents the problem through a hypothetical student, Faith, and her family. Part I examines the demographics of ELLs and students with special needs in public schools in the United States. Part II discusses the EEOA's shortcomings and the promise of the IDEA'S dispute resolution procedures for language-minority families. Part III examines how major metropolitan areas in California, New York, and Texas have been applying the IDEA, particularly with regard to ELLs and their families. Finally, Part IV gleans lessons from these urban districts' practices and identifies several areas of particular concern for language-minority families, advocates, and school administrators hoping to structure their special education dispute resolution programs in the most effective way.

Table of Contents Introduction I. English Language Learners and Special Education A. Definitions and Demographics 1. English Language Learners 2. Students with Disabilities B. Separating Language Learning and Learning Disability II. The Promise of the IDEA A. The IDEA Provides a Unique Framework Among Federal Education Laws B. The EEOA and NCLB Fall Short at Improving ELL Education C. Maybe Lawsuits Are Not the Answer: How the IDEA Can Help 1. The IDEA'S Dispute Resolution Procedures 2. The Benefits of Special Education Dispute Resolution III. The Use of IDEA Dispute Resolution in Urban Schools A. Procedural Safeguard Notices B. Translations and Interpreters C. Dispute Resolution Procedures 1. Mediation 2. Other Dispute Resolution Methods D. Parent Groups and Outreach E. Specific Services for ELLs in Special Education IV. Applying the IDEA to English Language Learners A. Lessons Learned B. A Tale of Two Populations: Somali and Latino C. Biases, Beliefs, and the Role of Dispute Resolution Providers Conclusion Introduction

Faith (1) is a seven-year-old who loves building Legos with her older brothers and baking cookies with her mom. Her family just moved to a new city in a new state, and Faith's new teacher sent home a piece of paper called a "home language survey." (2) Some time after returning the home language survey, Faith's parents learn that she has been placed for several hours a day in a class for students who do not speak English, and they are puzzled. Even though they do not speak English at home, Faith was not in a class for English Language Learners at her old school, although she did have a special person who helped her with what her former school called a "reading disorder." Faith does not complain about her new classes. She loves being able to speak her native language with other students in the class who also speak it, but she says the math is a lot easier than at her old school.

Faith's parents worry that this separate class is going to put her even further behind in school. After her mother makes several phone calls to the school, someone at Faith's new school answers the phone who speaks her native language. Once Faith's mother explains their concerns, the staff member tells her mother that the school will evaluate Faith for a disability. A couple of months later, Faith's parents are invited to a meeting at which they receive a written report, in English, saying that Faith is not eligible for special education services and that she will be kept in her current educational placement. (3) Although someone had explained the evaluation report to them in their native language at Faith's eligibility meeting, they still don't understand why Faith cannot have a teacher to help her like she did at her prior school and why she has to be in separate classes so much of the day, missing out on more advanced math. One day, when Faith's mother vents her anger and confusion at work, a co- worker tells her that he faced a similar situation with his son. He offers to help Faith's parents file a "due process claim" with the state education agency, alleging a violation of their rights under the Individuals with Disabilities Education Act (IDEA) and asking for a hearing about whether Faith qualifies for special education and related services. (4) A few days after filing, they receive a notice to attend a "resolution meeting." (5)

Faith's parents have several options as to what legal route they might take here. (6) If they believe that the school's programs for English Language Learners (ELLs) are inadequate, they could bring a federal lawsuit under the Equal Education Opportunities Act (EEOA) alleging that the school has failed to take appropriate action to overcome students' language barriers. (7) Or, they could go forward with their special education due process claim and seek through that process to obtain an "individualized education program" (IEP) that adequately addresses their daughter's educational needs. (8) Though at first glance, one might think that the EEOA provides the more promising route for Faith and her parents--after all, their main concern here is with the quality of the ELL education that Faith is currently receiving--this Article argues that for Faith and other students who may have special education needs, the IDEA provides a significantly better chance of actually improving their situation.

The IDEA is the best option because it recognizes that litigation is not the only way to resolve disputes between parents and schools. Instead, it provides for alternative dispute resolution mechanisms such as mediation and facilitated meetings, and it gives schools flexibility in how they structure these programs. (9) These mechanisms offer the kinds of informal, expedited processes that will allow language-minority parents to improve their children's education in realistic time frames--months rather than years.

Yet there are many reasons language-minority parents might be wary of turning to the IDEA and engaging in dispute resolution directly with schools. Parents with limited or no English skills may not fully understand their options, despite the legal safeguards in place. They may be reluctant to challenge the school system directly, or they may believe that this language barrier cannot be overcome. They may fear that school officials will be biased against them or retaliate against their child, making matters even worse. Further, parents may worry that even if they succeed, their child will only face the stigma of being a special education student. These fears all exist in the shadow of the very real challenges of properly evaluating and determining services for ELLs with disabilities. Yet despite these legitimate concerns, the IDEA'S...

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