K12 Legal News: How a recent ruling impacts special ed for English learners

Frank Ferreri
Frank Ferreri
Frank Ferreri has written about education law and policy for over 13 years. His topics of focus have included special education, disability law, Title IX, the Elementary and Secondary Education Act, and related subjects. Frank holds a master's degree from the University of South Florida and a juris doctor degree from the University of Florida Levin College of Law.

When a student with a disability speaks a language other than English, a district may face challenges in determining what his special education needs are versus how his limited English proficiency status affects his learning.

Such was the case in Guevara v. Chaffey Union High Sch. Dist., No. 22-56023 (9th Cir. 10/30/23), in which the 9th U.S. Circuit Court of Appeals agreed with the District Court below that a California district conducted a “reasonably thorough” and “extensive” evaluation before determining that a high schooler with an unspecified disability did not qualify for special education.

The student had emigrated from Honduras to live with relatives in California. He had not attended school since the sixth grade and did not speak English.

The student’s guardians requested a due process hearing, alleging that the district had failed to evaluate the student for special education eligibility, thereby denying him FAPE under the IDEA.

The district assessed the student using “various assessment tools and strategies,” and the district concluded that the student was ineligible for special education. According to the district, the student’s difficulties in school were attributable to his gaps in education and his unfamiliarity with English.

In the due process proceedings, the administrative law judge found that the district’s assessment was adequate and that its conclusion regarding special education eligibility was reasonable. In court, the District Court agreed with the ALJ’s decision and entered judgment in the district’s favor. The student appealed to the 9th Circuit.

Under IDEA case law, a procedural violation alone cannot qualify an otherwise ineligible student for IDEA relief. According to the 9th Circuit, in ruling in the district’s favor, because the district undertook a “thorough assessment” of the student and reasonably concluded he was ineligible for special education services, the district met its IDEA responsibilities.

In so deciding, the 9th Circuit highlighted that the ALJ reasonably concluded that the district’s evidence, including its direct classroom observation and “extensive” assessment of the student, was more persuasive than the student’s evidence.

The 9th Circuit affirmed the District Court’s ruling.

District Court rejects high school volleyball player’s request for judicial secrecy in Title IX case

Understandably, a student-athlete would want privacy when alleging that her coach subjected her to sex discrimination. However, as the court in Junker v. Mascoutah Community School District 19 Board of Education, No. 3:22-cv-1962-DWD (10/03/23) pointed out, courts tend to disfavor secrecy in judicial proceedings, even when they involve public school students.

A varsity volleyball coach for an Illinois district allegedly subjected team members to “demoralizing and degrading activities.” After becoming aware that one of the players met with a counselor at the school and that the counselor met with three of the player’s teammates, the coach allegedly “scolded” all four and imposed conditions on their ability to stay on the team.

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Alleging that the district failed to take action to protect the player or discipline the coach, the player sued under Title IX. After the court denied the district’s motion to dismiss, the parties sought a 60-day order to consummate a settlement of the case.

After the 60-day order was entered, the player sought a protective order allowing a sealed briefing of a motion to enforce the parties’ settlement agreement and a motion for sanctions. According to the player, her case had “picked up media attention” and a protective order would, among other things, “serve [ ] a legitimate and compelling interest of protecting a bargained for and binding non-disclosure and non-disparagement contracted interest” and that the request would allegedly “avoid disclosures of confidential information to the public and keep compliance with the non-disclosure, non-disparagement, and confidentiality agreements.”

Courts generally disfavor secrecy because, as the court in the case explained, “it renders it difficult for the public to understand why the case was brought, why it was litigated, the interests at stake, and whether the outcome was proper.”

Under the principle of judicial transparency, the court determined that there was no good cause for the sealing of the filings.

“Aside from passing references to media attention, the only bases provided to the Court for that relief are the existence of non-disclosure, non-disparagement, and confidentiality agreements between the parties as well as associated concerns,” the court wrote. “As the above authorities make clear, those bases alone are insufficient to outweigh the public’s interest in these judicial proceedings, i.e., in the Court’s decision on any motion to enforce a settlement agreement.”

Thus, the court denied the player’s request.

Cardona emphasizes resources for districts, states to support immigrant students

In a Dear Colleague letter, U.S. Education Department Secretary Miguel Cardona offered ED resources that districts can turn to in supporting immigrant students.

Citing the U.S. Supreme Court’s decision in Plyer v. Doe, 457 U.S. 202 (1982), Cardona specified that “all children in the United States have an equal right to enroll and participate in public elementary and secondary schools without regard to their or their parents’ or guardians’ immigration status.”

Cardona also noted that local education agencies must provide students who are not citizens or do not have immigration documentation with equal access to a public elementary and secondary education, regardless of their or their parent’s actual or perceived national origin, citizenship, or immigration status, and determine whether the student is eligible, on the same basis as any other student, to participate in programs supported with local, State, and federal funds.

The following are resources that Cardona’s letter directed districts to use:

Newcomer Toolkit. Originally published in 2016, this toolkit contains: 1) discussion of topics relevant to understanding, supporting, and engaging newcomer students and their families or guardians; 2) tools, research-based strategies, and examples of classroom and schoolwide practices in action; 3) professional learning activities for use in staff meetings or professional learning communities; and 4) resources for further information and assistance. In addition, the toolkit encourages asset-based and trauma-informed approaches and a focus on equity and inclusivity and features the Dual Capacity Framework for building school-family partnerships.

English Learner Toolkit. This toolkit covers legal requirements, including the civil rights of families of newcomer students.

ESSER Funds. Cardona reminded districts that as the period of availability for COVID-19 relief nears its end, state educational agencies and their LEAs may use funds under the Elementary and Secondary School Emergency Relief Fund and the Governor’s Emergency Education Relief Fund to address the impact of the COVID-19 pandemic on immigrant students.

ARP Funds. Additionally, the American Rescue Plan Elementary and Secondary School Emergency Relief—Homeless Children and Youth funds may be used by states to address urgent needs of children and youth experiencing homelessness—including academic, social, emotional and mental health needs. These funds must be obligated by Sept. 30, 2024.

ESEA Title I, Part A. Under ESEA section 1115(e)(2), a Title I school that operates a targeted assistance program may use a portion of its Title I funds to provide comprehensive services, such as health, nutrition, and other social services if such services are not otherwise available to eligible students.

English Language Acquisition Program. Title III, Part A funds can be used to supplement language instruction educational programs and activities that increase the knowledge and skills of teachers who serve English learners.

EHCY Program. The Education for Homeless Children and Youth Program, which is authorized by the McKinney-Vento Homeless Assistance Act, allows funds to be used for, among other things: 1) defraying the excess cost of school of origin transportation, including for school-sponsored extracurricular and family engagement activities; 2) tutoring, counseling, and management of referrals to health care and other necessary services; and 3) the provision of other extraordinary or emergency assistance needed to enable children and youth experiencing homelessness to attend school and participate fully in school activities, which can include items such as hygiene products, school supplies, and clothing.

Student Support and Academic Enrichment Program. This is an ESEA Title IV, Part A program that is intended to improve students’ academic achievement by increasing the capacity of states, LEAs, schools, and local communities to 1) provide all students with access to a well-rounded education; 2) improve school conditions for student learning; and 3) improve the use of technology to improve the academic achievement and digital literacy of all students, including immigrant students.

Discretionary Grants. For example, the National Professional Development grants program under Title III of the ESEA supports professional development activities that are designed to improve classroom instruction for students who are English learners and assist educational personnel working with such children to meet high professional standards, including standards for certification and licensure as teachers who work in LIEPs or serve students who are ELs.

Workforce Innovation and Opportunity Act. Under WIOA Title II, funds are available to support English language acquisition and integrated English literacy and civics education. Immigrants are eligible regardless of immigration status or employment authorization unless restricted by the State, provided they meet the law’s eligibility requirements.

Additionally, Cardona urged districts to coordinate efforts with state and local agencies for additional funding and housing, health, and child welfare services that may be available to support immigrant students.


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