Testimony by Jill Chaifetz, Executive Director of Advocates for Children of New York, Inc.
Before the New York State Assembly Education Committee and Task Force on New Americans
“Meeting the Educational Needs of English Language Learners” - December 9, 1999
ELLs and Special Education
ELLs and Gifted and Magnet Programs
ELLs and the New Educational Standards
Assemblyman Sanders, Assemblyman Rivera, Assemblywoman Arroyo, and members of the Assembly
Committee on Education and Task Force on New Americans, thank you for the opportunity to testify at
today’s hearing on meeting the needs of English Language Learners in New York State.
My name is Jill Chaifetz and I am Executive Director of Advocates for Children of New York.
Advocates for Children, known as AFC, is a non-profit, legal advocacy and educational services
organization whose mission for nearly thirty years is to ensure equal educational opportunities and
quality education for children in the New York City public school system. AFC is committed to
serving students who are at risk in the public schools. We are particularly concerned with the barriers
faced by English Language Learners or ELLs in obtaining equal access to quality, educational
opportunities in New York. One of AFC’s core programs is our Immigrant Students Rights Project
where we provide training, individual case assistance and work on policy issues regarding immigrant
communities and their educational rights and needs in NYC Schools. Based on our experiences in
working with diverse student populations in New York City, English Language Learners continue to
face discriminatory practices and inappropriate educational placements in the public schools more than
almost any other subpopulation, particularly in the areas of specialized and magnet programs, special
education placements, and new educational standards policies.
Immigrant and ELL students continue to be placed in special education programs in disproportionate
numbers and for inappropriate and unlawful reasons. Last year the U.S. Department of Education’s
Office of Civil Rights (OCR) found not only that New York City places too many students in
segregated special education classes in violation of the Individuals with Disabilities Education Act
(IDEA), but also that it disproportionately classifies black, Latino, and ELL students as “learning
disabled” or “emotionally disturbed.” According to OCR’s analysis, ELL students in New York City
are over 2 times more likely to be referred to special education than are non-ELL students. In the 1997-
98 school year, although ELLs constituted 16% of the entire student population, they comprised 21% of
all special education students and 26% of all special education referrals.
Many ELLs are placed in special education for reasons unrelated to an actual disability. Others do have
disabilities but are placed in inappropriately restrictive environments. One of the central tenets and
requirements of the IDEA is that students must be placed in the least restrictive environment to prevent
the segregation of disabled students and to maximize their interaction with peers in general education.
According to OCR analyses, in Fall, 1996, while 69% of ELL special education students in New York
City were placed in self-contained special education classes, only 45% of non-ELL special education
students were placed in self-contained classes.
In addition, parents of ELL students all too often are not informed about their rights to participate fully
in decision-making about their children and to withhold consent to special education procedures when
they disagree with a school’s findings. When schools and districts do provide information to parents,
such information is not provided in the parents’ primary language, as required by law. In some cases,
students are not assessed in their primary language or in culturally appropriate ways as is required by
New York State law.
ELL students who require special education often do not receive appropriate services as required by
federal and state law. In many cases, such students are not provided a free and appropriate education as
required under the IDEA because schools and districts do not offer the necessary language translation
services for parents, preventing them from making informed decisions about their children’s education.
ELL students are also being denied appropriate special education services due to a lack of bilingual
special education classes and resources. Too often at AFC we serve ELL students who are kept out of
school for weeks or months at a time because a district cannot offer bilingual special education services.
Other times, a child is given a temporary placement in a monolingual English class for months at a
time. Parents who do not have an understanding of their rights and lack language access to the
education system often do not know how to address such problems or challenge such illegal practices.
Gifted and Magnet Programs
It is AFC’s experience that ELL’s continue to have unequal access to specialized schools, gifted and
talented programs, and magnet schools in New York City. In 1997, OCR issued a resolution agreement
pursuant to a complaint filed against the New York City Board of Education alleging that the Board
violated Title VI of Civil Rights Act by systematically denying minority parents access to and
information about specialized and gifted and talented programs. Both our agency and OCR have
conducted monitoring during the last year and AFC and OCR found that the Board was in widespread
non-compliance with the Resolution Agreement. The agreement only requires the most basic level of
access—notice that these programs exist. This includes listings in multiple languages, to be posted in
every district and every school, of available programs and their criteria and contact information for
people responsible for such inquiries in each school and district. The agreement also requires the
posting of a contact person in the District who handles inquiries of persons who are English Language
Learners. Out of 31 district offices and 10 schools contacted by AFC testers, none offered a contact
person for English Language Learners. Only one of the schools that we contacted offered a notice in
different languages. The results of the OCR monitoring, which looked at more individual schools
found an even higher rate of violations than what we found at AFC. The lack of access to such
programs denies ELL students an opportunity to achieve their educational potential and limits their
opportunities to enter other competitive educational or career settings.
The state’s new standards offer an opportunity for all children to reach the same levels of excellence.
However the current implementation of these standards is problematic; ELLs stand to be penalized by
the current implementation plan as a result of their language status. New York State has required that
high school students pass five Regents subject exams to receive a diploma by 2004. While the subject
exams will be gradually phased in over the next five years, the English Language Arts Regents Exam
will be required of students planning to graduate in the year 2000. All students will have to pass the
English Language Arts Regents examination regardless of how long they have been in the U.S., what
level of English proficiency they have, or what classes they have taken or services have or have not
been offered. AFC supports the establishment of higher educational standards and school
accountability for students meeting such standards. However, the creation of dramatically higher
standards that do not reflect what students have been taught and are imposed without providing services
that would enable students to meet such standards penalizes students and denies them an opportunity to
succeed. ELL students, who already suffer from disproportionate rates of high school dropout or failure
to graduate often for lack of appropriate services, will be especially hurt by the Regents exam
In an effort to support the standards, NYS has passed regulations that require doubling and for some
students tripling the amount of English as a Second Language instruction that they receive. However,
the state failed to provide additional funding to increase the number of certified ESL teachers and
resources needed to expand ESL instruction. It is estimated that the New York City Board of Education
needs 900 new ESL teachers to comply with the new state requirements. A substantial investment in
fiscal and human resources is essential to enabling students and schools to meet the state ESL and
graduation requirements. Unfortunately, this is an investment we have yet to experience.
It is unfair and educationally unsound to require ELL students to pass a high stakes assessment on an
English Language Arts curriculum that many have never been taught or have been taught for only a
short time. In addition, while ELL students who have been in the country less than three years can take
the other Regents subject exams in their primary languages, ELL students who have been in the U.S. for
more than 3 years before the exam will have to take the four other Regents subject examinations in
English only. The vast majority of research shows that it takes from four to seven years for non-
English-speaking students to become academically proficient in English, making this time requirement
a recipe for disaster. There are neither adequate resources or support services to properly serve ELLs in
meeting the Regents graduation requirement thus setting up this group for failure.
New York City has also created a new promotion standards policy that would create undue hardships
for ELL students. In order for students to pass from one grade to another, they must pass standardized
tests and meet certain academic standards in classes. ELL students who have been in bilingual or ESL
programs for 5 years or more or who score above the 30th percentile on the Reading part of English
Language Assessment Battery (LAB) test will be subject to the same promotional requirements and
standardized tests as native English speakers, despite the fact that ELL students are often taught a
different curriculum. This means that ELL students who have only taken bilingual education or ESL
and demonstrate an English proficiency that requires them to remain in such curriculum will be tested
on the English Language Arts curriculum of native English speakers. ELL students who have received
bilingual education or ESL for 2 to 5 years will be subject to standards adjusted for their limited English
proficiency, but that do not necessarily reflect the difference in curriculum.
AFC recommends the following changes to meet the educational needs of English Language Learner
1. Hold school districts accountable to federal and state law for ensuring that referral
and placement practices in special education do not discriminate on the basis of race
or language status.
2. Hold school districts accountable to federal and state law for ensuring that ELLs in
special education are placed in the least restrictive environment, thus offering these
children the bast chance of becoming productive citizens.
3. Hold school districts accountable to federal and state law for ensuring that the timely
provision of related services such as bilingual services to ELL special education
students to ensure compliance with federal and state education laws.
4. Create specific, statewide procedures for providing and monitoring language access
services for parents of ELL students in receiving information about their rights and
responsibilities in the school system. Create enforcement mechanisms for ensuring
that districts’ and schools’ practices of language access do not violate state or federal
5. Invest resources that ensure parents of ELLs have complete and equal access to
information in their primary language from schools and districts regarding their
children’s education options. For example, Montgomery County schools in
Maryland recently installed a service that would provide translation services over the
telephone in 140 languages for parents who do not speak English.
6. Ensure that all school districts, especially New York City the largest school district
in the nation, meet the basic requirements under Title VI of the 1964 Civil Rights
Act by providing equal access to specialized, magnet, and gifted and talented
programs for all students, including ELL students. This must be done through state
monitoring and sanctions.
7. Develop and implement assessments for general education, special education, and
specialized and gifted and talented programs for ELL students in languages other
than English. Create systems for reporting and disaggregating the results of such
assessments to monitor the performance and needs of ELL students.
8. Invest resources that ensure the provision of appropriate bilingual services for all
ELL students in general education, special education, and specialized and gifted and
9. Invest in hiring more teachers for bilingual education and ESL classes and increasing
the number of such certified teachers. Such investment now is imperative given the
new state mandates for expanded ESL instruction and estimates that New York City
could lose up to 50,000 teachers in the next five years.
10. Enhance pre-service and in-service training for teachers in developing cultural
competency in educating immigrant and ELL students in compliance with Title VI of
the Civil Rights Act.
11. Delay the implementation of the new high school graduation requirements for ELL
students. When implementing the graduation requirements, allow all ELL students
to take the subject examinations in their primary language regardless of their time of
arrival to the U.S. Delay the implementation of the graduation policy until the state
is certain that the policy does not disproportionately impact ELL students in violation
of Title VI of the Civil Rights Act.
12. Invest resources to ensure that all students receive the necessary support to succeed
in school. Ensuring funding for after-school, summer school, tutoring programs as
well as capital improvements is critical. Funds under Title I of the Elementary and
Secondary Education Act (ESEA) should also be utilized to specifically meet ELL
needs. Despite mandates in Title I, the largest source of federal funding for ELL and
disadvantaged students, that its funds specifically address the needs of ELL students,
recent studies have shown that most states, including New York, have failed to meet
many of these requirements. New York should review its state and local Title I plans
to ensure that they incorporate ELLs in service, assessments, and accountability
New York State must commit additional, substantial resources for the bilingual needs of ELL students
to ensure the growth and success of all of its students. The need for such investment is clear given that,
in this decade, the population of immigrant children in the U.S. has increased at a rate seven times
faster than that of native born children and considering the critical role new immigrants play in
revitalizing New York State’s communities and institutions. We thank you again for the opportunity to
present our views on this very important subject.