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Issues in the Equitable Instruction of ELL Students With and Without Special Needs. Julie Esparza Brown, EdD Portland State University. Presentation Goals.

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Issues in the Equitable Instruction of ELL Students With and Without Special Needs

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Issues in the Equitable Instruction of ELL Students With and Without Special Needs

Julie Esparza Brown, EdD

Portland State University

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Presentation Goals

  • To provide an overview of mandates related to special education and Title III as they relate to ELL students with and without special needs

  • Assist in the decision-making process for these children related to:

    • RTI/Intervention

    • Identification

    • Assessments

    • IEP development/appropriate goals and objectives

    • Program models

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Critical Understandings

  • State and federal requirements from both Title III and Special Education apply to ELL students with special needs

  • Students should be able to demonstrate benefit from educational and supplemental services offered by both programs

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Requirements of ELD Programs

  • ELL students receive a program of instruction in ELD

  • Programs are designed and implemented to ensure ELL students meet district’s content and performance standards

  • Funding must be used to provide every ELL student with learning opportunities

  • Parents must be informed of program placement

  • Teachers must hold appropriate endorsement

  • Parents of ELL students with an IEP must be notified how the recommended placement will help their child meet the objectives of the IEP

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  • ELL students must receive a program of instruction in ELD to be able to develop proficiency in English as rapidly and effectively as possible

  • Instruction must be targeted to the student’s English proficiency level

  • There is ongoing progress monitoring

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General Legal Mandates

  • Laws are written to provide protection of students’ rights:

    • To receive appropriate services when needed

    • From unfair and discriminatory placements when there is not a disability

  • Laws ensure a free, appropriate, and equitable education for all, not just most, students who live in the U.S.

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Legislative and Judicial Mandates for ELL Students and Special Education

  • Title VI of the Civil Rights Act of 1964 and its regulations at 34 CFR Part 100

  • May 25, 1970 Memorandum

  • Section 504

  • Title II of the Americans with Disabilities Act of 1990, 42 USC 12131-12161

  • Individuals with Disabilities Educational Improvement Act (IDEIA) of 2004

  • Lau v. Nichols

  • Castaneda v Pickard

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The Instructional Ecology

  • Inappropriate and ineffective instructional programs MUST be ruled out before proceeding to a referral.

  • The learning environment must be observed on more than one occasion and during different times of the day.

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The Instructional Ecology

  • Does the teacher understand and/or speak the student’s primary language?

  • What strategies does the teacher use to ensure the comprehensibility of the instruction (such as GLAD, SIOP)?

  • Are modifications in the instruction made?

  • What kind of feedback is given to the student?

  • Does the student receive pull-out instruction by either ELD or SpEd staff? If so, what “core” instruction is the student missing?

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The Instructional Ecology

  • What does the teacher do to involve the student?

  • How is the student allowed to demonstrate knowledge and skills?

  • Is the student able to complete independent work?

  • Is the student instructed in homogenous or heterogenous groupings? Does the student actively participate in group work?

  • How appropriate is the curriculum both linguistically and culturally

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Classroom Behavior and Performance

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To Ensure that ELL Students are Appropriately Placed into Special Education…

  • Student study teams, pre-referral teams and RTI teams must be knowledgeable about:

    • Second language acquisition patterns

    • Challenges faced by children whose L1 is not English

    • Effective instructional strategies for ELL students

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The RTI Process

  • Response to Intervention can be one component of the assessment process

  • RTI is a

    • Multi-step process for students who are struggling academically and/or behaviorally

    • Uses high-quality, research-based instruction and interventions of varying intensity levels (or tiers)

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The RTI Process

  • Prevention

    • School wide screening

    • Professional development

    • Standards-aligned effective instruction

    • Progress monitoring

  • Intervention

    • Tiered intervention

    • Frequent progress monitoring

    • Targeted instruction with greater intensity

  • SLD determination

    • RTI data is utilized as a component of a multi-disciplinary team assessment

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Model of Instructional Intervention to allow access and progress in the core curriculum


Tier III

Time Program Group Size


Two or more years below grade level

Two or more years below grade level

Tier II




One to two years below grade level standards

Tier I

CORE with

Differentiated instruction

Achieving grade level standards, but may require additional assistance


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Tier 1 for ELL Students

  • There must be research-based instruction in place for all students; teachers must have knowledge and skills to appropriately address the needs of ELLs

  • Progress monitoring must be culturally responsive

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Tier 2 for ELL Students

  • For students who do not reach expected benchmarks as measured by on-going progress monitoring

  • Instruction must be both culturally and linguistically appropriate

  • Interventions may be delivered in class or in a different setting

  • More intensive support than in Tier 1

  • Oral language development should be a component and match the language of core instruction (research shows at least 10 minutes per day beyond targeted intervention)

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Tier 3 for ELL Students

  • Students who continue to struggle can be provided with more intensive interventions at this tier

  • Intervention programs in this tier replace the core program

  • Interventions should continue to be culturally and linguistically appropriate

  • Progress monitoring should be done by a team

    • The team should include members with expertise in culturally and linguistically responsive instruction and research-based instructional strategies

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Decision-making at Tier 3

  • Referral to this tier could mean a referral for a psychoeducational evaluation to determine

    • Special education eligibility

    • Disorders in basic psychological processes (in federal definition of SLD)

    • Patterns of strengths and weaknesses

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Referral Process

  • Must include

    • Informing parents of need for assessment plan

    • informed consent will initiate the assessment

    • Legal timelines to develop assessment plan

    • Time begins to complete assessment

    • Timeline for holding IEP team meeting

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Critical Questions

  • What is the student’s health and developmental history?

  • How long has the student lived in the U.S.?

    • Mobility issues

    • Immigrant or refugee

  • How much schooling has the student received in:

    • L1

    • L2

  • What type of instruction has the student had:

    • Model of ELD or bilingual, if any

    • Instructional model in other country

    • What has been their access to core curriculum

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Critical Questions

  • Was student ever retained?

    • In native country

    • In U.S.

  • What is the student’s language proficiency in the four skill areas in:

    • L1

    • L2

  • What is the student’s motivation and attitude?

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Critical Questions

  • How does the student compare with his/her peers?

  • What are the competencies of the student indicated in the records and how does it compare to current performance?

  • How does the student interact with others in the home environment?

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Multiple Data Sources

  • The benefit of valid and reliable screening processes, instruction and interventions in Tiers 1 and II can be used as sources of data during assessment process

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Second Language Acquisition vs. Possible Disability

  • Pair Share

    • When an ELL student is not meeting expected benchmarks for academic progress, what are appropriate next steps to help rule out normal language acquisition as the primary factor?

    • What steps are used in your district?

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Reasons why ELL students are referred to Special Education

#1 Poor/Low Achievement

#2 Behavioral Problems

#3 Oral Language Related

(Acquisition or Delay)

#4 Reading Problems

#5 Learning Difficulties

#6 Socio-emotional Difficulties

#7 Diagnosis for Particular Handicapping


#8 Written Language

#9 Low Attention Span

#10 Unable to Understand and/or follow directions

Source: Ochoa, Robles-Pina, Garcia, & Breunig, 1999

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Assessment of ELL Students

  • Districts must provide valid and reliability assessments

  • If there is a qualified bilingual assessor in the area, districts should contract with them unless, as stated in IDEIA, “it is not feasible to do so.”

  • Not being “feasible” is no excuse not to find a bilingual assessor; particularly for the common languages represented

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Assessment of ELL Students

  • A monolingual assessment is no acceptable

  • For cognitive assessments, a nonverbal test may be used ALONG WITH multiple data sources, including information from someone with expertise in both the language and culture of the child

  • For less common languages, a trained community person may need to be brought in to help interview the family and student

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Assessing English Language Learners for Special Education

  • Use a variety of assessment tools (e.g., authentic, curriculum-based, standardized) and strategies (e.g., interviews, observations)to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, that may assist in determining –

    • (i) Whether the child is a child with a disability under Sec. 300.8; and

    • (ii) The content of the child’s IEP, including information related to enabling the child to be involved in and progress in the general education curriculum

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Assessing English Language Learners for Special Education

  • Assessment and other evaluation materials used to assess a child under this part –

    • (i) Are selected and administered so as not to be discriminatory on a racial or cultural basis; (ii) Are provided and administered in the child’s native language or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to so provide or administer;

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Assessing English Language Learners for Special Education

  • Assessments

    • Must not be discriminatory – racially or culturally

    • Are administered in the child’s native language

    • Help assess whether lack of academic achievement is due to limited English proficiency or learning disability

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Assessing English Language Learners for Special Education

  • The group may determine that a child has a specific learning disability, as defined in Sec. 300.8(c)(10), if-

  • (1) The child does not achieve adequately for the child’s age or to meet State-approved grade-level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child’s age or State-approved grade-level standards:

    • (i) Oral expression, (ii) Listening Comprehension, (iii) Written expression, (iv) Basic reading skills, (v) Reading fluency skills, (vi) Reading comprehension, (vii) Mathematics calculation, (viii) Mathematics problem solving.

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Assessing English Language Learners for Special Education

  • The group determines that its findings under paragraphs (a)(1) and (2) of this section are not primarily the result of –

    • (i) A visual, hearing, or motor disability, (ii) Mental retardation, (iii) Emotional disturbance, (iv) Cultural factors, (v) Environmental or economic disadvantage; or (vi) Limited English proficiency

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English Language Proficiency Assessments

  • Unfortunately, there is no single alternative assessment instrument for language proficiency which assesses all four domains for students of all type and severity of disability.

  • Helpful link to Massachusetts’ website:


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English Language Proficiency Assessments

  • The same universal accommodations are available to all students, including ELLS as deemed needed by the teacher.

  • Extended testing time (on same day)

  • Separate location or study carrel

  • Preferential seating

  • Special lighting

  • Student wears noise buffers after directions

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English Language Proficiency Assessments

  • Special furniture or pencil

  • Familiar test administrator*

  • Repeat directions

  • Color Overlay

  • This may mean more people need to be trained to be administrators of ELPA to fully serve our special student population.

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IEP Team

  • Group described in Sec. 300.306

  • The IEP team considers whether the student’s lack of progress is consistent with the second language acquisition process or a possible manifestation of a disability

  • The team must include a representative with knowledge of second language acquisition and ELD programs/services

  • The team also includes parents/guardians, and student when appropriate

  • The team considers the results of the assessment and whether instruments used are valid and reliable for ELLs

  • IEP teams must review ELPA results to determine the student’s level of English proficiency

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The RTI and Assessment Processes

  • Pair Share

    • Do you think current models of eligibility or the RTI process will be more effective in identifying ELL students who truly have a disability?

    • Why or why not?

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IEP Development for ELLs

  • Must include:

    • Current levels of performance (based on assessment results; include strengths and weaknesses)

    • Assessment and classroom accommodations, program supports and modifications (including the ELPA)

    • Goals should be linguistically appropriate and standards based

    • The need for special education services and ELD services; instruction could be provided by both programs

    • ELD standards when appropriate

    • Language of instruction (can be different for subjects)

    • Materials and instructional programs appropriate for ELL students

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IEP Development for ELLs

  • The IEP team could decide the student needs an alternate English proficiency test to the ELPA, or the ELPA should be the primary criterion to determine the student’s level of English proficiency.

  • Should ELPA be given with or without accommodations

  • The need to use alternate assessment in one or more required domain

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Linguistically Appropriate Goals

  • The IEP team must consider the student’s

    • Level of English language development

    • How they will meaningfully participate in the core curriculum

  • The IEP should reflect

    • The ELD methodology

    • How they will access core ELD instruction

    • Where the instruction will take place

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Linguistically Appropriate Goals

  • Linguistically appropriate goals are required in some states but not in Oregon

  • OCR will not monitor for these

  • They do, however, want to see how the child will receive their ELD services and how they will access core

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Critical Questions

  • Are ELL students appropriately identified and placed?

  • Are dual-identified ELLs learning English?

  • Do their IEPs address the students’ linguistic and academic needs?

  • Do their IEP specify the necessary accommodations and modifications?

  • How are ELL students’ needs met?

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Flexible and Collaboration Models of Service Delivery

  • Consultative/collaborative support or co-teaching model in general education

  • In a school wide intervention model at the benchmark or strategic level

  • In core with supplemental special education support models

  • In intensive core program served by a qualified specialist

  • Intensive special education support in more than one core area

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Program Planning for Dual Identified Students

  • Considering the language needs of the student means the IEP team determines:

    • How and from which instructor(s) the student will receive ELD and core academic subjects

    • How the student will receive specially designed academic instruction in English (SDAIE)

    • To what degree does the student need bilingual support or instruction to access core curriculum

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Reclassification/Exit ELD Program

Criteria for reclassification in Oregon is outlined in OAR 581-023-0100:

The criteria shall include:

  • (A) Achieving at the Advanced level on the State’s English Language Proficiency Assessment (ELPA).

  • (B) The Advanced level is a culmination of progress demonstrated on the same state proficiency measure over a legitimate period of time.

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Reclassification/Exit ELD Program

  • Alternative reclassification criteria are NOT allowable; each decision must be based on the student’s needs and made through the IEP team

  • Students with severe handicaps, or those deaf or blind, do not need to be assessed in all four domains

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Reclassification/Exit ELD Program

  • The IEP or Section 504 Team must consider:

    • Has the student met the LEA’s reclassification criteria?

    • Is the continued lack of English proficiency due only to the disability?

    • Can the student now benefit from English only services?

  • ELL students in special education who has been reclassified MUST BE monitored (as required by state laws) and this should be documented in the IEP

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Not a Basis for Reclassification

  • Lack of English proficiency

  • Low academic skills in English

  • Low test scores

  • Lack of resources

  • Longevity in a program or district

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Some Should Remain ELD

  • Some students will remain in ELD program for their entire educational career; particularly those with severe handicaps

  • The team must consider the language the students will hear and need to use at home and how the child will communicate with the family

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Reclassification/Exit ELD Program

  • Pair Share

  • What is the role of the IEP team in the reclassification process?

  • What information should be considered?

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“The psychologist’s or special educator’s task must be to dismantle the traditional function of psychological assessment in the educational disabling of minority students; in other words, educators must be prepared to become advocates for the child in scrutinizing critically the social and educational context within which the child has developed. This implies that the conceptual basis for assessment should be broadened so that it goes beyond psychoeducational considerations to take account of the child’s entire learning environment.

Cummins, 1989

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What is the Traditional SLD Determination Process?

  • Pair Share

    • Describe the current eligibility process for Specific Learning Disability in your district.

    • Are the current processes adequate and appropriate?

    • Why or why not?

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To Ensure that ELL Students are Appropriately Placed into Special Education…

  • Involve ESL/Bilingual staff as soon as possible

  • Assess student’s acquisition of English over time and current proficiency in L1 and L2

  • Gather input from parents

  • Examine the student’s developmental and educational history

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Examples of OCR Findings

  • Interventions prior to special education referral must consider the student’s language and culture.

  • Staff should NOT wait for two years before consideration of a prereferral or special education referral.

  • A district must have a documented, consistent approach in evaluating ELL/LEP students.

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Examples of OCR Findings

  • All information regarding the student’s academic, cultural, language (L1 and L2), background must be documented and included in special education reports.

  • ELL staff MUST be involved in the prereferral/referral process when the child is ELL.

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Examples of OCR Findings

  • IEPs must state the student’s need for instructional modifications in special education based on their limited English proficiency.

  • A student must receive ELL services even though the scheduling may be inconvenient or result in two “pull outs.”

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Examples of OCR Findings

  • Title VI mandates that districts not assign ELL students to special education programs on the basis of criteria that essentially measure and evaluate English-language skills, and must employ standards and procedures for the evaluation and placement of ELL students that reliably identify these students’ disabilities, rather than the students’ lack of English proficiency.

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Examples of OCR Findings

  • Under Section 504 and Title VI, a student’s language proficiency and ELL status is part of a student’s cultural background that needs to be considered in order to make appropriate special education evaluation and placement determinations.

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Examples of OCR Findings

  • Districts must maintain a list of parents who need interpreter/translators in order to meaningfully participate in their child’s educational program.

  • The districts must have a policy and procedures for notifying ELL parents about the availability of interpreters/translators.

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Examples of OCR Findings

  • Districts must establish qualifications and competency standards for interpreters.

  • Interpreter/translators must be trained around issues of confidentiality.

  • Procedures must ensure that ELL/SPED students are not removed, nor denied, ELL or special education services for administrative reasons unrelated to a student’s educational needs.

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In Summary…

Professional development and service delivery models must emphasize a cross-disciplinary and collaborative approach so that all students can realize the American dream.

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