Serving English Language
Learners with ESEA
Title III, Part A Funds
Presumption of “Supplanting”
An auditor will presume that the SEA or LEA
violated the SNS requirement when the SEA or LEA
uses Title III funds to provide…
1. Services that the SEA or LEA was required to make
available under other federal, state, or local law;
2. Services that the SEA or LEA provided with other
federal, state, or local funds in the prior year; or
3. The same services to Title III students as it provided
to non-Title III students with non-Title III funds.
Source: See OMB Circular A-133 Compliance Supplement
Title VI, Civil Rights Act of 1964
Resources
Key Federal Court Cases:
 Lau v. Nichols, 414 U.S. 563 (1974)
 Castaneda v. Pickard, 648 F.2d 989 (5th Cir., 1981)
Key OCR Guidance:
 5/25/70 Memorandum
http://www.ed.gov/about/offices/list/ocr/docs/lau1970.html
 12/3/85 Memorandum (Reissued 4/6/90)
http://www.ed.gov/about/offices/list/ocr/docs/lau1990_and_1985.html
 9/27/91 OCR Policy
http://www.ed.gov/about/offices/list/ocr/docs/lau1991.html
 2/17/11 DOJ Memorandum
http://www.justice.gov/crt/lep/AG_021711_EO_13166_Memo_to_Agencie
s_with_Supplement.pdf
USE OF TITLE III, PART A FUNDS
•
•
•
•
Purpose
Allocations
Activities
SNS Guidance
Purposes of Title III
(§ 3101)
• To ensure that Limited English Proficient (LEP)
and immigrant students:
– Attain English proficiency
– Develop high levels of academic attainment in
English
– Meet the same challenging State academic
content and student achievement standards as all
students
Definition: Limited Eng. Proficient (LEP)
(§
9101)
1. Age 3-21;
2. Enrolled/preparing to enroll in elementary or
secondary school;
3. Not born in US or whose native language is not
English; and
4. Has difficulty in speaking, reading, writing or
understanding English sufficiently so that it can deny
student the:
1.
2.
3.
Ability to meet proficient level on state assessments,
Ability to achieve in classroom where language of instruction is English;
or
Opportunity to participate fully in society.
Title III Equitable Services
After timely and meaningful consultation with
appropriate private school officials, LEAs
receiving Title III funds must provide
educational services to LEP children and
educational personnel in private schools that
are located in the geographic area served by
the LEA.
(§ 9501)
Title IX Equitable Services Guidance (March 2009):
www2.ed.gov/policy/elsec/guid/equitableserguidance.doc
Title III & LEP Students in Private Schools
• To ensure timely and meaningful consultation, the
LEA must consult with private school officials on
issues such as:
–
–
–
–
How LEP students’ needs will be identified
What services will be offered
How, where, and by whom the services will be provided
How the services will be assessed and how the results of the
assessment will be used to improve those services
– The size and scope of services
– Amount of funds available for services
– How and when the LEA will make decisions about the delivery of
services
LEA-Required Activities
§3115(c)
 High quality language instruction educational
programs that demonstrate effectiveness by:
 Increasing English proficiency
 Student academic achievement in the core academic
subjects
 High-quality professional development
 Improve instruction and assessment
 Enhance the ability of teachers to understand and use
curricula, assessment measures, and instruction
strategies
 Demonstrate effectiveness of professional
development
 Provide activities of sufficient intensity and duration
LEA-Permissive Activities
§3115(d)
To achieve Title III purposes by…
1.Upgrading program objectives and effective
instruction strategies;
2.Improving the instruction program for LEP children
by identifying, acquiring, and upgrading curricula,
instruction materials, educational software, and
assessment procedures;
3.Providing—
 Tutorials and academic or vocational education for LEP
children; and
 Intensified instruction.
LEA-Permissive Activities (cont.)
§3115(d)
4. Developing and implementing elementary school or
secondary school language instruction education
programs that are coordinated with other relevant
programs and services;
5. Improving the English proficiency and academic
achievement of LEP children;
6. Providing community participation programs, family
literary services, and parent outreach and training
activities to LEP children and their families—
 To improve English language skills of LEP children; and
 To assist parents in helping their children improve their
academic achievement and becoming active participants in
the education of their children.
LEA-Permissive Activities (cont.)
§3115(d)
7. Improving the instruction of LEP children by
providing for—
 The acquisition or development of educational
technology or instructional materials;
 Access to, and participation in, electronic networks for
materials, training, and communication; and
 Incorporation of the resources described above into
curricula and programs, such as those funded under
Title III-Part A.
8. Carrying other activities that are consistent with the
purposes of this section.
Title III SNS Provision, §3115(g)
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 LEP children
and immigrant children and youth and in no case to
supplant such Federal, State, and local public funds.
INTENT: To ensure services provided with Tier III funds are in addition
to, and do not replace or supplant, services that students would
otherwise receive.
USDE Supplanting Interpretation
Title III funds unallowable for:
 Developing and/or administering Title I ELP assessment
NOTE: State may use Title III State Activities funds for:
 Developing an ELP assessment separate from ELP assessment
required under Title I, or
 Enhancing an existing ELP assessment required under Title I in order
to align it with the State’s ELP standards under Title III.
 Developing and/or administering screening or placement
assessments
 Providing “core language instruction educational programs
and services” for LEP students
Any determination about supplanting is VERY fact
specific.
QUESTIONS TO ASK RE: WHETHER TITLE
III FUNDS CAN BE USED WITHOUT
VIOLATING THE SNS REQUIREMENT
From USDE Title III SNS Webinar:
1. What is the instructional program/service
provided to all students?
2. What does the LEA do to meet Lau requirements?
3. What services is the LEA required by other
Federal, State, and local laws or regulations to
provide?
4. Was the program/service previously provided
with State, local, and Federal funds?
Based on the answers to the above questions, would the proposed funds be
used to provide an instructional program/service that is in addition to or
supplemental to an instructional program/service that would otherwise be
provided to LEP students in the absence of a Title III grant?
RESOURCES
2011-2012 SASA Monitoring Protocol
http://www2.ed.gov/admins/lead/account/monitoring/indicators1112.pdf
Final Interpretations
http://edocket.access.gpo.gov/2008/pdf/E8-24702.pdf
Office of Civil Rights ELL Resources
http://www.ed.gov/about/offices/list/ocr/ellresources.html
Office of English Language Acquisition (OELA)
http://www.ed.gov/about/offices/list/oela/index.html
National Clearinghouse for English Language Acquisition and
Language Instruction Educational Programs
http://www.ncela.us
ED Guidance on Title III SNS
USDE Title III SNS Webinar, Dec. 2008
http://www.ncela.us/webinars/event/6/
 Follow-up to questions raised at the LEP Partnership Meeting
SASA Monitoring Findings
 2008-2009:
http://www2.ed.gov/admins/lead/account/monitoring/reports09/index.html
 2009-2010:
http://www2.ed.gov/admins/lead/account/monitoring/reports10/index.html
 2010-2011:
http://www2.ed.gov/admins/lead/account/monitoring/reports11/index.html
 2011-2012 :
http://www2.ed.gov/admins/lead/account/monitoring/reports12/index.html
 2012-2013:
http://www2.ed.gov/admins/lead/account/monitoring/reports13/index.html