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ACLU Warns Torlakson, SBE of Possible Lawsuit OverServices to English Learners

January 31, 2013

The ACLU of California, the Asian Pacific American Legal Center (APALC) and the law firm of Latham & Watkins LLP warned state education officials on January 23 of possible litigation if they do not act immediately to provide essential language instruction to thousands of underserved English learner (EL) students, as required by state and federal law. The organizations have sent a demand letter to State Superintendent of Public Instruction Tom Torlakson and members of the State Board of Education urging them to fulfill their statutory and constitutional duties by taking specific steps detailed in a report the organizations also released today.

More than 20,000 EL students across 251 school districts—more than a quarter of California school districts that have EL students enrolled—have not been receiving any services to help them learn English. The lack of instruction violates legal mandates and is in spite of studies showing that EL students denied those services are more likely to fail or drop out of school.

As detailed in the report, the California Department of Education itself posts data on its website indicating that 20,318 EL students—in districts including Los Angeles Unified, Fremont Union High in Santa Clara County, and San Diego’s Grossmont Union High—receive no English language instructional services at all, yet the state has taken no steps to ensure that districts deliver the services. This inaction effectively denies these EL students equal educational opportunity, with the predictable results that they fall far below age and grade academic proficiency levels and drop out at disproportionately high levels.

“Each additional day an EL child goes without language instructional services is another day that child is effectively foreclosed from a meaningful education,” said Jessica Price, staff attorney with the ACLU of Southern California. “The children who are neglected today, in schools with no EL services, become the long-term English learners of tomorrow, sometimes struggling their entire school careers without anyone stepping in to make sure they have the tools to learn.”

“State educational officials are creating a caste system whereby tens of thousands of children—nearly all of whom are U.S. citizens—are denied access to the bond of English language that unites us as Californians and are placed instead into linguistic isolation which prevents them from achieving academic proficiency in state-mandated curricula,” said Mark Rosenbaum, chief counsel of the ACLU of Southern California.

“Affording no services whatsoever to these children ghettoizes them, imprisoning their hearts and minds by cutting them off from the essential tool of communication necessary to read, speak and learn in all our schools and communities. And because English learners make up one quarter of all students in California’s public schools and one out of every four EL students in the nation are in California schools, the state’s no-services practices leave not only these children far behind, but also California along with them.”

In conjunction with the release of the letter and report, the ACLU and APALC are launching a public education campaign using social media, television and radio venues to educate parents and students about the importance of receiving appropriate services and how to advocate for their rights. In many cases, parents may not know that their child has been designated EL because they have not received information about their child’s designation in a language they understand, as required by state law.

“In California, children from diverse backgrounds and districts are deprived of the foundational language skills necessary to succeed in school and life,” said Nicole Ochi, staff attorney with APALC. “To address the diverse language needs of English learners in our state, we have set up hotlines in multiple languages to provide access to legal advice for parents and students who have been kept in the dark for far too long about their education.”

The organizations have requested a response from State Superintendent Torlakson and the State Board of Education within 30 days.

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The California Department of Education's (CDE) English Learner Support Division Director, Dr. Karen Cadiero-Kaplan, issued the following statement regarding media reports of claims made by the American Civil Liberties Union about English-language instruction:

"Despite the enormous financial strains of recent years, California has made dramatic progress in seeing that all English learners receive appropriate instruction and services. School districts—which are responsible for providing instruction to students and appropriate services to English learners—currently report that more than 98 percent of the state's 1.4 million English learners are receiving services.

"The Department has yet to see or review the claims made today, although it is noteworthy that a previous action by some of the same parties was recently dismissed with no adverse finding against the CDE. Furthermore, a recent Court of Appeal decision affirmed that the Department and the State Superintendent had fulfilled their legal obligations related to on-site monitoring of English learners.

"The Department encourages any parents concerned about the instruction of their children to work with their local school district and, if necessary, make use of the Department's complaint process to resolve any concerns."

Source:  American Civil Liberties Union of Southern California, California Department of Education.