A new fact sheet from the U.S. Department of Education Office for Civil Rights outlines the rights of English learners with disabilities

Of the 5.2 million English learners (ELs) in the U.S., more than 1 in 6 have a disability. Several federal civil rights laws ensure all students have equal access to a free, quality education, whether they’re an EL, a student with disabilities or both. Families and educators, in turn, need extra support in securing the services their students are entitled to. Importantly, the  U.S. Department of Education has released new resources to help keep students and families informed of their rights under these laws.

This winter, the U.S. Department of Education Office for Civil Rights (OCR) released a fact sheet detailing the rules and regulations for ensuring ELs with disabilities are properly accounted for and supported by their schools under Title VI of the Civil Rights Act of 1964 (Title VI), Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II). It also provided examples of practices that could lead to non-compliance. The fact sheet highlights the ones pertaining to these cases and offers important information on how to file an OCR complaint if a school isn’t following the law. 

“Fact sheets like these are immensely useful for students and families to understand the real-world application of civil rights laws,” said UnidosUS K-12 Education Policy Analyst Lina Lenis. “One of the most important things that families of ELs with disabilities should know is that they are entitled to both EL services and disability-related services, it’s not just one or the other.” 

Title VI of the Civil Rights Act of 1964: Meaningful and Equal Participation of ELs

Title VI of the Civil Rights Act of 1964 mandates that U.S. schools must provide for “meaningful and equal participation” of ELs. This includes robust language services to help students overcome the barriers they face in working toward English proficiency while “equally, fully, and meaningfully participating in the standard instructional programming,” the factsheet explains. 

Additionally, schools are required to meaningfully engage the parents or guardians of ELs in a language they can understand through accurate translation or oral interpretation. 

Free Appropriate Public Education for Students with Disabilities 

The fact sheet also notes that Section 504 of the Rehabilitation Act of 1973 requires schools to provide students with disabilities with Free Appropriate Public Education (FAPE). In other words, students with disabilities are entitled to the same public education as students without disabilities through aids and services that are based on “adherence to procedures governing educational setting, evaluation and placement, and procedural safeguards,” which parents of students with disabilities have the right to challenge.  

Communication with Individuals with Disabilities

Just as communication with English learners requires appropriate translation and interpretation services, communication with individuals with disabilities requires that schools take steps to provide adequate communication services “to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others,” the factsheet noted. This can include providing auxiliary aids and services where necessary, ensuring that they are appropriate to the nature, length and complexity of the communication in a given context. The law also notes that this should be done by giving priority to the requests of individuals with disabilities to determine the types of auxiliary aids and services in a manner that is timely, and respectful of the privacy and independence of that person. 

Ensuring Proper Identification  Els with Disabilities 

Identifying ELs who need special education is like untangling a knot of different-colored threads — language learning and learning differences can look similar, making it challenging to distinguish them. Some ELs may be incorrectly identified as needing special education, while others who do need the additional support are overlooked. 

For this reason, federal law requires that U.S. schools follow procedures for students who qualify as ELs and have one or more disability, and the fact sheet offers important tips for following through on both. 

“To avoid improperly identifying students who are ELs as having a disability because of their LEP, schools must evaluate students who are ELs for a disability in an appropriate language based on the student’s needs and language skills. Similarly, students with disabilities must receive appropriate disability-related services when schools evaluate their English language proficiency,” the fact sheet emphasized, noting that this can be done by considering a student’s social or cultural background and recommendations by teachers in a way that draws from not just one but a group of people knowledgeable about the student’s circumstances. 

The fact sheet also highlights more than a dozen instances in which educational practices related to ELs with disabilities could fall out of compliance with the law. For example, this might happen if educators and administrators schedule EL and disability-related services at the same time, which would force the student to miss one of those services. It could also happen if schools determined a disability only on the basis of limited English proficiency (LEP) or on grounds that they receive EL services, or if ELs with disabilities are separated from other ELs or the general student population when it isn’t actually necessary. 

Filing an OCR Complaint 

These examples are just a few of the scenarios that might lead a parent or guardian to file an OCR complaint on behalf of an EL with disabilities, so it is important to consult the full fact sheet, which also contains links to 12 additional resources, such as other related fact sheets and dear colleague letters aimed at providing robust support for students in these circumstances. Finally, the fact sheet provides all corresponding webpages, emails and phone numbers for learning more about educational civil rights and filing complaints. 

“It is imperative that the Trump administration’s office of civil rights continue to take these complaints seriously. Failing to address these concerns could lead to systemic inequities, where students are denied the accommodations, language support and protections they are legally entitled to under federal laws,” said UnidosUS Sr. Policy Advisor Jenny Muñiz.

– Author Julienne Gage is a former UnidosUS staff member and longtime contributor to the Progress Report blog. She is currently obtaining her Ph.D. in Anthropology in Florida International University’s Global and Sociocultural Studies Department.