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OCR Fact Sheet on Ensuring Meaningful Participation in Advanced Coursework and Specialized Programs for Students Who Are English Learners

By John W. Borkowski, Aleks Ostojic Rushing & Mackenzie Conway on January 18, 2024
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In 2023, the U.S. Department of Education’s Office for Civil Rights (“OCR”) released a Fact Sheet on Ensuring Meaningful Participation in Advanced Coursework and Specialized Programs for Students Who Are English Learners (“Fact Sheet”), which is available here. The Fact Sheet provides data showing OCR found that students who are English Learners (“ELs”) have lower participation rates in specialized or advanced programs offered at elementary and secondary schools. OCR noted that schools must ensure eligibility for such programs, such as evaluation and testing procedures, do not screen out ELs because of their limited English proficiency, unless a program requires English proficiency for participation.

In 2017-2018, the most recent year for which civil rights data are available, ELs were three times less likely than their non-EL classmates to be enrolled in Advanced Placement (AP) courses and two times less likely to be enrolled in International Baccalaureate (IB) when offered by their schools.

Title VI of the Civil Rights Act of 1964 (“Title VI”) prohibits discrimination on the basis of race, color, or national origin in any program or activity receiving Federal financial assistance. OCR provided examples of types of practices that could raise Title VI discrimination concerns with respect to these program placements, which included the following:

  1. Categorically excluding EL students from advanced or specialized programs;
  2. Creating scheduling barriers for participation, such as scheduling the only AP calculus class for the same period as EL instruction;
  3. Using selection criteria not directly related to the advanced course or specialized program, and that negatively affects EL students;
  4. Using different selection criteria for ELs;
  5. Counseling ELs against taking advanced or specialized programs because the programs would be too difficult for them or they should focus on language skills;
  6. Providing information about advanced or specialized programs to only non-EL students; and
  7. Excluding teacher recommendations or failing to request recommendations from EL teachers.

The Fact Sheet provides additional resources for schools to help support schools’ efforts to increase access to specialized programming for ELs.

What this means to you

School districts should review their policies regarding the placement of EL students in advanced or specialized courses and data regarding the participation of such students in these programs to ensure that they are providing EL students with sufficient opportunities and not engaging in practices that could raise Title VI concerns.

Photo of John W. Borkowski John W. Borkowski

Coming from a family of teachers, John knows that educators are dedicated to serving students and society. His lifelong passion for education underlies the insightful counsel he provides to colleges, universities and school districts.

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Photo of Aleks Ostojic Rushing Aleks Ostojic Rushing

As a licensed teacher, Aleks’ passion for education runs deep and is at the core of her work with clients. She knows that every client and every student requires a unique approach to optimize success. Aleks counsels K-12 and higher education clients on…

As a licensed teacher, Aleks’ passion for education runs deep and is at the core of her work with clients. She knows that every client and every student requires a unique approach to optimize success. Aleks counsels K-12 and higher education clients on investigations, litigation and compliance matters arising from a wide range of civil rights and educational funding issues. These include Title IX, Title IV, the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA) and the Family Educational Records Privacy Act (FERPA).

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Photo of Mackenzie Conway Mackenzie Conway

Mackenzie guides clients on proactive compliance, training and policies that meet and exceed a wide range of changing regulations and place both public and private schools on optimal standing to face unexpected challenges. When audits or claims arise, Mackenzie collaborates within the firm’s…

Mackenzie guides clients on proactive compliance, training and policies that meet and exceed a wide range of changing regulations and place both public and private schools on optimal standing to face unexpected challenges. When audits or claims arise, Mackenzie collaborates within the firm’s coast-to-coast footprint for optimal representation and resolution.

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  • Posted in:
    Education
  • Blog:
    K-12 Legal Insights
  • Organization:
    Husch Blackwell LLP
  • Article: View Original Source

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