Parents Sue Over Placement in ESL

By Mary Ann Zehr — October 19, 2007 2 min read
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Parents of a Latino boy in Oregon who speaks only English have sued the Hillsboro School District because they claim their son was placed in an English-as-a-second-language program based on his ethnicity, according to an article published this week in The Oregonian.

A Hillsboro school official said in an Associated Press article that the school district places children in ESL programs based on a home-language survey and assessment. That’s the practice across the nation, in accordance with federal law. The Oregonian article says the issue was complicated by the fact the boy is developmentally delayed.

What’s particularly interesting to me, though, is the claim by the parents that school officials didn’t respect their wishes. “His mother complained to school officials, but they insisted he belonged in an English-as-a-second-language program,” the article says.

The courts will draw out the particular facts in the Hillsboro case. But this is a good time to note that the No Child Left Behind Act says school districts must tell parents they have a right to take their child out of language-acquisition programs. School districts must tell parents of their child’s placement in ESL or bilingual education and notify them of “the right that parents have to have their child immediately removed from such program upon their request,” according to the law. (See the parental notification section of Title III.)

I brought this issue up in an earlier post because a parent wrote to me with a complaint similar to that of the parents who filed the lawsuit. In some e-mail exchanges about that blog post, I learned that implementing that part of the law may not be as clear as it seems at first glance.

For example, Gloria M. Pelaez, the director of accreditation for the school of education at the University of Miami, wrote to me that “in Florida, [English for speakers of other languages] is the language arts component in the education of an ELL student. Language arts is a basic subject thus there is no option to opt out of ESL.”

I turned to an expert, Roger Rice, a lawyer and co-director of Multicultural, Education, Training, and Advocacy, for clarification on parents’ rights. META provides legal representation in education for linguistic-minority children.

Mr. Rice noted that clearly it is wrong for a school to place a child in an ESL class solely because of his or her ethnicity rather than language proficiency. He added that, in his experience, most schools do get parental permission before placing a child in such a program and honor parents’ requests not to place students.

But Mr. Rice explained that even if a parent pulls a child out of a specific English-acquisition program, the school district still must give the child some kind of help to learn English. Here’s what he wrote to me:

The language you cite in NCLB only goes to parental rights to withdraw a child from a federally funded Title III program. However, the civil right of the child to appropriate English instruction is grounded not in Title III but in Title VI of the 1964 Civil Rights Act and in the 1974 Equal Educational Opportunity Act (and ultimately traceable back to Lau v. Nichols, i.e. the right to understandable instruction). Insofar as I know, [the Office for Civil Rights of the U.S. Department of Education] has taken the position that regardless of whether a parent pulls a child out of a particular English-language acquisition program, the school district still has an obligation to teach English and not allow the child to sink or swim. Hypothetically, the hardest question would be if a parent flat-out asked that the ELL child not receive any help at all in learning English, even where basic ESOL is part of the core curriculum of the school. Do parents have an absolute right to insist that their child get no help at all? I've not seen that situation tested in court. What we do know is that parents have no right to request that their child not be taught, e.g. algebra, or history and there are many state cases over the years that make that clear. So why would teaching English through ESOL be different? I'm not answering that one, simply posing it. Or, by way of comparison, what if a child were quite clearly very severely disabled, and legally entitled under federal and state law to special ed services under an IEP, and the parent said 'too bad, I don't want him/her to get any help and, no I don't have any expert opinion to back me up on that.' My guess is that if the school district took the matter to court, the court might well appoint a guardian ad litem for the child and look at the situation on a 'best interests of the child' standard, taking into account that the child had a civil right to appropriate education. You can see where that hypothetical might lead.

Readers, is there any confusion at your schools about these matters?

A version of this news article first appeared in the Learning the Language blog.