Legal Requirements for Biliteracy Programs

							The Parental Exception
   Waiver Process




   San Diego County Office of Education
          English Learner Programs
             Are Governed by:
   Education Code § 300-340
   California Code of Regulations Title V (5CCR)
   Relevant California & federal case law
   No Child Left Behind
   Proposition 227 intent

District‟s Bilingual Program Guidelines:
       Select core subjects taught through English and/or
        Spanish.
       Textbooks match language of instruction.
       Appropriate supplemental materials in both languages.
               Prop. 227 Intent

 “To the extent there is any ambiguity as to the
  intent of Proposition 227, the legislative history
  clarifies that the Chapter was designed to wrest
  from school boards and administrators
  decisionmaking authority for selecting between
  LEP educational options, and repose this power
  exclusively in parents of LEP students.”

McLaughlin et al. vs. State Board of Education Alameda
  County Superior Court #8008105, 1999
       Education Code § 305

 English learners shall be educated
  through Structured English Immersion
  (SEI) until they meet “reasonable
  fluency” criteria established by the
  district.
       Education Code § 305
                (Continued)

 Allows schools to mix together in the
  same classroom English learners from
  different home-language groups but with
  the same degree of English fluency.

 Once English learners have acquired
  reasonable fluency in English, they shall
  be transferred to English Language
  Mainstream (ELM) classrooms.
        Education Code § 306

 “ „Bilingual education‟ means a language
  acquisition process for pupils in which much or
  all instruction, textbooks, and teaching
  materials are in the child‟s native language.”

 State policy requires that an alternative
  program must include considerable CORE
  content instruction in students‟ home language.

EC § 305, 306, 310, 311 & CA Attny. Gen.
             EL Program Options

 Structured English Immersion (SEI)
      for ELs with “less than reasonable fluency”

 English Language Mainstream (ELM)
      for ELs with “reasonable fluency”

 Alternative Program        (bilingual course of study)

      for any EL, K - 12, any level of proficiency
           Structured English
               Immersion
 English language acquisition process to be
  provided “nearly all in English”
 Includes ELD instruction
 Includes differentiated core content instruction
  delivered through SDAIE, L1 support and some
  L1
 Parents may request out of SEI at any time.
            English Language
              Mainstream
 Must include ELD and appropriate additional
  educational services

 Provided “overwhelmingly” in English for English
  learners with “reasonable fluency in English” as
  defined by the district

 Core content is be delivered through SDAIE and
  some L1 support
         Alternative (Bilingual)
                Program
 Includes ELD instruction
 Core content provided through L1 instruction
  and through SDAIE when appropriate
 Ensures that students achieve at grade level
  while they learn English
 Available to all English learners
        Notify Parents of All ELs
            EC § 310, 5CCR § 11309

 District must notify parents of all English
  learners (K - 12 at all levels of English
  proficiency) of the opportunity to apply for a
  waiver on an annual basis.

 Parents must personally visit the school to
  apply.
      Unless “extreme hardship” exists.
       Notify Parents of All ELs
  EC § 310, 5CCR § 11309 (continued)

 School must provide to parents a full
  description of all educational programs available
  to the child even if some options don‟t currently
  exist at the school.
     Assures parents see all program options and
      learn about various methods for teaching and
      learning.
     The description must be provided orally if
      requested.
     Education Code § 311

Parents may request a
 parental exception waiver
 under any one of the
 following three
 circumstances…
                   EC § 311
     Parents may request a waiver if:

a) Child already knows English as measured by
   standardized tests.
   OR

b) Child is 10 years of age or older and
   principal/educational staff agree an alternative
   course of educational study would be better
   suited to the child‟s rapid acquisition of basic
   English language skills.
   OR…
   Parents may request a waiver if EL
          has “Special Needs”

c) Child already has been placed in an English
   language classroom for a period of 30
   calendar days or more in the state of CA and
   principal AND educational staff agree that the
   child has special physical, emotional,
   psychological or educational needs that would
   be better served in an alternative (bilingual)
   program.

 “Special Needs” ≠ Special Ed.
             Processing Timeline

 Under conditions a & b, school staff must act
  within 20 instructional days from the
  submission of the waiver request.
 Under condition c, a waiver may be submitted
  during the 30 day waiting period
     School staff must wait until the expiration of the 30
      days in order to act on the waiver request.
     School staff must act on the waiver request within 10
      days of the expiration of the 30 days or within 20 days
      from the submission by the parent (whichever is
      later.)
       Attorney General Policy

 Each application for a waiver must be
  considered on its individual merits.

 Waiver requests may not be denied on the
  grounds that a district [or school] does not
  offer an alternative program.

83 Ops. CA Attorney General 40 (2000)
     State Board of Education
              Policy
 Parental exception waivers shall be granted
  unless the school principal AND educational
  staff have determined that an alternative
  program offered at the school would not be
  better suited for the overall educational
  development of the pupil.

 5 CCR § 11309(b)(4).
            Waiver Approval

 Students shall be placed in classes where they
  are taught English and other subjects through
  bilingual education techniques and other
  generally recognized educational
  methodologies.

 A school must offer a class when waivers are
  approved for 20 or more students of the same
  language group and in the same grade (or
  subject area in secondary.)
            Waiver Approval
             (but numbers are low)


 If a school has less than 20 approved waivers
  for a class or subject area, the school may
  choose to offer such a class or must allow the
  child to transfer to another school that offers
  such a program.
           District Procedures

 District strives to comply with the law and meet
  student needs.

 Parents must be notified of approval or denial
  of waiver.

 Denied waivers must include a written
  explanation of the reason(s) for denial and
  must inform parents of their option to appeal.
  5CCR §11309 (d)
       Appeal Process: Level 1
            Appeal to School Principal

 Principal AND educational staff provide written
  explanation for the denial, including relevant
  student information and achievement data.

 To appeal the decision, parent is granted a
  meeting with principal and educational staff.

 Decision is made and communicated to parent.

 Every attempt to resolve the situation is made
  at the site level.
       Appeal Process: Level 2
      Appeal to Assistant Superintendent

 Parent submits to the assistant superintendent
  an appeal letter with specific facts.

 Principal submits documentation and reasons
  for denial to the assistant superintendent.

 Assistant superintendent upholds or overrules
  waiver denial and informs parent.

 If upheld, parent is informed of opportunity to
  request a review panel hearing.
       Appeal Process: Level 3
             Appeal to Review Panel

 Review panel (general counsel, assistant
  superintendent, and principal) convenes to
  review and discuss all documentation.

 Parent may be contacted for further
  information.

 Decision to uphold or change the decision is
  made and communicated to parent.
       Appeal Process: Level 4
      Appeal to Local Board of Education

 Parent is scheduled to present his/her case at a
  Board closed session.

 Translation services are available if needed.

 Principal also presents at the closed session.

 The Board makes determination and notifies
  parent and principal of the outcome.

 No further appeal of the decision is available.
     State Board of Education
     Review of Waiver Policy

 State law and policy allow parents to
  require a review by the State Board of
  Education of a school district‟s bilingual
  program waiver guidelines and appeals
  process to determine conformity with
  5CCR § 11309.

5CCR § 11310
                Special Thanks

 This presentation is based on a version
  originally developed by San Diego Unified
  School District. We would like to express our
  gratitude for the use of their template.

 This presentation has been modified for general
  use and dissemination. Legal citations and
  policy clarifications have been added to the
  original.

 Questions: omedina@sdcoe.net