The Legal Lookout

Bilingual Students and Special Education: The Potential Need for Dual Services 

Dec. 14, 2022

Recently, I was honored to be on a dissertation committee where the student examined the knowledge of administrators regarding the legal obligations for English Language Learners (ELL). The student surveyed over 800 administrators in the State of Michigan. Lamentably, the research concluded that 35% of the participants in the study responded that they completely understand any of the civil rights obligations established by the federal government and over 50% of these administrators reported that not a single civil rights obligation is fully implemented in their school or district! This chasm between what is happening and what should be happening is caused by several issues. Administrators noted that the amount and quality of knowledge in their preparatory programs or professional development was/is insufficient. Because of this gap in awareness, they unintentionally fail to implement some or all of the entitlements for ELLs. Most alarmingly are the administrators who lucidly claim that ELL programming is not a priority for them or their district despite it being mandatory. 

Compounding the complexity for providing mandatory services to ELL students is when students require both language services and special education services. It is noteworthy that the federal government requires that: 

EL students with disabilities under the Individuals with Disabilities Education Act (IDEA) or Section 504 are evaluated in a timely and appropriate manner for special education and disability-related services and that their language needs are considered in evaluation and delivery of services. 

In other words, school districts must provide services for students who are bilingual and qualify for special education services – districts may NOT exclude a student from a program because she or he qualifies for another program. It is more common for school districts to have efficient and rigorous procedures in place for identifying and servicing students with disabilities so here are some ideas and thoughts to ensure ELL students are appropriately identified and serviced. 

1. Thoroughly review the Dear Colleague Letter (2015) from the U.S. Department of Education, which provides a robust description and analysis of the civil rights obligations for all states and local school districts. English Learners DCL (PDF) (ed.gov) 

2. Ensure accuracy when identify ELL students. Ironically, ELL students are often under- or over-identified. This requires having the appropriate number of trained faculty to identify these students, and subsequently provide services. 

3. Most often general education teachers will be the first educators to professionally interact with ELL students. General education teachers may have lower expectations of ELL students because of them learning a new language or, in contrast have higher expectations because they believe the native language is obfuscating the true academic potential, thus imposing unreasonable expectations on these students. Professional development for identifying and working with ELL students is critical to ensure accurate assessment of these students. 

4. Allocate appropriate financial and human resources to English as a Second Language (ESL) programs. While it may seem simple to reduce budgets in this area, it may not be the prudent thing to do. Make sure you are meeting the mandates for ELL students. 

5. Lobby your legislators to become knowledgeable about laws surrounding ELL students to ensure they are allocating appropriate amounts to ELL services and are enacting legislation to enforce ESL requirements. 

This article is the author’s opinion and is not legal advice. As always, consult with your attorney on specific legal issues.