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Developing Programs for English Language Learners: Legal Background

Resource Materials for Planning and Self-Assessments

Legal Background

School districts in many parts of the country are experiencing a substantial increase in the enrollment of national-origin-minority students who cannot speak, read, or write English well enough to participate meaningfully in educational programs without appropriate support services. In the absence of specific steps to address the language-related limitations experienced by such students, these students are at risk of losing the educational opportunities provided to students generally.

The Office for Civil Rights (OCR) is responsible for enforcing Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin. In Lau v. Nichols, the U.S. Supreme Court affirmed the Department of Education's May 25, 1970, Memorandum, that directed school districts to take steps to help ELL students overcome language barriers and to ensure that they can participate meaningfully in the districts' educational programs.

Department of Education policies regarding ELL children are reflected in three OCR policy documents. The May 1970 memorandum to school districts entitled "Identification of Discrimination and Denial of Services on the Basis of National Origin" clarifies OCR policy under Title VI on the responsibility of school districts to provide equal educational opportunity to language minority students. The December 3, 1985, guidance document entitled "The Office for Civil Rights' Title VI Language Minority Compliance Procedures" outlines the procedures OCR follows in applying the May 1970 memorandum and the Lau legal standard on a case-by-case basis. The September 27, 1991, memorandum entitled "Policy Update on Schools' Obligations Toward National Origin Minority Students with Limited-English Proficiency (LEP)" is a policy update to be read in conjunction with the May 1970 and December 1985 memoranda. It provides additional guidance for applying the May 1970 and December 1985 memoranda in the context of staffing, transition and/or exit criteria, and program evaluation, as well as to special education programs, gifted and talented, and other special programs.

OCR does not require or advocate a particular program of instruction for ELL students and nothing in federal law requires one form of instruction over another. Under federal law, programs to educate children with limited proficiency in English must be: (1) based on a sound educational theory; (2) adequately supported so that the program has a realistic chance of success; and (3) periodically evaluated and revised, if necessary. These three fundamental principles of federal law are discussed below.

Last Modified: 01/16/2020