**RESCINDED**

**QUESTIONS THAT MAY BE RAISED BYPROPOSITION 227**

U.S. Department of EducationOffice for Civil Rights

**General**

**Q1:**Under Federal law, can a district placeLEP students in mainstream classes without providing any otherassistance?

**A1:** No. In 1974, in Lau v. Nichols,the Supreme Court ruled that placing LEP students in a regularprogram taught in English, when they were unable to participatemeaningfully in that program because of their limited Englishproficiency, constituted discrimination on the basis of nationalorigin in violation of Title VI of the Civil Rights Act. TheDepartment's May 25, 1970 Memorandum directs school districts totake "affirmative steps to rectify language deficiencies inorder to open its instructional program to these students."The May 1970 Memorandum was adopted by the Supreme Court in Lauv. Nichols. Similarly, the Equal Educational Opportunity Act,which is administered by the Department of Justice, requirespublic educational agencies to take appropriate action toovercome language barriers that impede student participation inthe instructional program.

**Q2:** Does Proposition 227 relieve districts oftheir civil rights obligations?

**A2:** No. Proposition 227 does not relieveschool districts of any of their obligation to comply withfederal civil rights requirements. These requirements affordrecipients of federal funds considerable latitude in selecting aninstructional approach, so long as it effectively addresses theeducational needs of limited English proficient children. 

**Q3:**If a school district is implementing anOCR-approved plan, is it exempt from the requirements ofProposition 227? 

**A3:** No. School districts in California and inother states must comply with applicable state laws in a way thatdoes not contradict federal legal requirements. 

**Q4:** What is the status of district resolutionplans with OCR?

**A4:**OCR will continue to work closely withCalifornia educators at the state and local levels to assist themin maintaining educational programs for LEP students that complywith Title VI. If school districts that are operating underOCR-approved plans determine that those plans need to be modifiedto comply with Proposition 227, they should contact the SanFrancisco OCR Enforcement Office. OCR is prepared to providetechnical assistance to school districts to help them draft planmodifications that are consistent with Title VI.

**Q5:**Will the Department of Justice or theDepartment of Education play a role in any litigation challengingProposition 227 in federal or state court? 

**A5:** The U.S. Departments of Education andJustice have not, at this time, joined in any legal challenges toProposition 227. However, we will continue to monitor how 227 isimplemented and whether children with limited English proficiencyare provided realistic opportunities to succeed academically,consistent with federal civil rights requirements.

 

**Proposition 227 Specific**

**Q1:**Would a one year limit on services to LEPstudents be permissible under federal law? 

**A1:**Lau requires that LEP students whoneed alternative language instruction in order to receivemeaningful access to the district's mainstream educationalprogram, be provided those services until an individualizeddetermination is made that a student no longer needs the servicesin order to participate meaningfully in the District'seducational program. Some children may reach this level ofEnglish proficiency within one year. However, children learn atdifferent speeds, and districts cannot limit to one yearalternative services for LEP students who are not yet able toparticipate meaningfully in the district's programs.

**Q2:**If the parent of a LEP student opts thatstudent out of alternative language instruction, what is thedistrict's responsibility to that student? 

**A2:**Lau establishes a district'sobligation to provide LEP students with meaningful access to theeducational program. When a parent declines participation in aparticular formal language instruction program, the district mustcontinue to ensure that the student has an equal opportunity tohave his or her English language and academic needs met.Districts can meet this obligation in a variety of ways, forexample, by providing adequate training to classroom teachers onsecond language acquisition and English language development andby monitoring the educational progress of the student.

**Q3:**Can a district focus its instruction forLEP students on English acquisition for a year, and limit itsinstruction in academic content areas during that time?

**A3:**Under the 5th Circuit's decision in Casta�edav. Pickard districts are not precluded from adopting programswhich temporarily emphasize English over other subjects, as longas the programs are recognized as sound by some educationalexperts. The Casta�eda court stated that districts canmake the determination as to whether they want to address thedual tasks of language and academic instruction simultaneously,by implementing a program designed to keep LEP students at gradelevel by providing language services to make the academic contentareas accessible, or to address the tasks in sequence, byfocusing first on the development of English language skills andthen later providing students with compensatory and supplementaleducation to remedy deficiencies in other content areas that theymay develop during this period.

**Q4.**How should a district determine when aLEP student is ready to exit an alternative language program?

**A4:**LEP students must be provided withalternative services until they are proficient enough toparticipate meaningfully in the regular program. Under OCR'slong-standing Lau guidance, when deciding whether astudent can participate meaningfully, recipients should considersuch factors as the students' ability to keep up with theirnon-LEP peers in the regular education program and their abilityto participate successfully in essentially all aspects of theDistrict's curriculum without the use of adapted or simplifiedEnglish materials. 

**Q5:**If districts modify their programs forserving LEP students in light of Proposition 227, must theyevaluate the programs they implement?

**A5:**Under the 5th Circuit=s decision in Casta�edav. Pickard, districts are required to evaluate theirprograms. If, after a legitimate trial period, the program is notsuccessful in helping students overcome language barriers, thedistrict may need to modify its program.

**Q6:** Proposition 227 expressly permitsdistricts to place in the same classroom English learners ofdifferent ages whose degree of English proficiency is similar.Does this violate federal law?

**A6:** While this is not a violation of federallaw, it does raise concerns about its implementation becauseschool districts generally place students in classrooms withothers who are similar in age, in order to address their commonage-related developmental and social needs. If a district placesLEP students of different ages in the same classroom for alimited time and for the purpose of English language instruction,Casta�eda makes clear that districts are responsible forensuring that LEP students receive effective and appropriatecontent instruction at appropriate academic levels.

U.S. Department of Education, Office for Civil RightsJune 10, 1998

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