The Difficult Path to Implementing Language Access for ELL Students

On July 1st, I had my first direct experience with the legislative workings of Washington, D.C.’s local government when I attended a public hearing on the Language Access for Education Amendment Act of 2015. Growing up in Miami, a city where speaking Spanish can seem to get you further than speaking English, I was curious to hear more about the relationship between language, policy, and education in the District. I naively arrived to the hearing excited at being able to witness D.C. politics in action, but as I listened to witness after witness share stories of humiliation, discrimination, and violations of their basic human rights, my optimism evaporated. Instead, I was indignant that so many people had been denied access to basic services simply because they did not speak English.

The Language Access amendment intends to create stronger accountability provisions for D.C. government agencies to fully implement and enforce the Language Access Act of 2004. It also mandates specific steps local education agencies (LEAs) must take in order to improve basic access to education for English language learners (ELLs). The original law was created to ensure government agencies provide D.C. residents who speak limited or no English with fair access to public services. But as the testimonies revealed, it has fallen far short of that charge.

The stories of recently-arrived ELLs on their first day of school in D.C. were particularly harrowing. One student had such a terrible first day at school that she did not want to return. She said she felt “inferior and alone” when she could not find anyone to help her navigate the confusing logistics of starting high school, or at least help her ask for lunch. Another student with a similar experience called his first day of high school the worst day of his life. One parent talked about her inability to understand her disabled daughter’s Individual Educational Plan (IEP) because — despite her specific request for one — the school did not provide her with an interpreter to explain the highly technical language.

Most student witnesses at the hearing were part of the Student Multiethnic Action Research Team (SMART), a youth-led community-based organization that advocates for equity in education for ELLs and their families. They are part of a larger network of civil rights groups that comprise the D.C. Language Access Coalition, which advocates for language access rights in D.C. It was because of their efforts (in collaboration with other organizations) that the original Language Access Act was passed, and that the current bill to amend it is being considered.

The testimonies illustrate various violations of the Language Access Act, which requires public schools (and other government agencies) to provide interpretation services to ELLs and to translate vital documents. The bill proposes to amend the original act in a number of important ways for ELLs. First, it gives individuals “a private right of action,” or the ability to take cases of non-compliance to court and seek retribution for any damages suffered. Second, it allows the Office of Human Rights (OHR) to fine government agencies (up to $500 per violation) that it finds have violated the Language Access Act. The money would be placed in a civil penalty fund that OHR would use for its language access activities. Third, it requires LEAs where at least 10 percent of the students are ELLs to have certified ESL staff. Fourth, it requires LEAs to provide training for school staff on how to use language access resources (including the Language Access Line) and how to interact with and integrate ELLs and their families. Fifth, it requires each LEA to hire at least one full-time Language Access Coordinator to carry out a plan to ensure schools comply with the language access law. Finally, it adds each LEA — including charter schools —  to the list of government agencies that must adhere to the law.

Although the current law entrusts OHR with carrying out the Language Access Program and ensuring the law is enforced, OHR has no real punitive powers. Currently, people who have been wronged by a government agency can file a complaint with OHR, which then investigates the complaint and issues its findings to the agency. However, as the Committee on Education’s Chairperson, Councilmember David Grosso concluded after hearing the public testimonies, “clearly there is not a commitment from government agencies to ensure language access,” and added, “we need enforcement mechanisms in place to ensure this.”

The new bill is not without potential flaws. Scott Pearson, the Executive Director of the Public Charter School Board (PCSB), said the private right of action “could bankrupt a public charter school, which…would have to pay for private defense.” Even Phil Mendelson, the Chairman of the City Council, was quick to criticize this provision. In his opinion, class action hearings are costly, time consuming, and ultimately don’t get people what they want. He suggested the law stick to performance compliance hearings. As a possible compromise, the committee could remove the private right of action, but still allow OHR to impose fines on agencies that are found to violate the law in compliance hearings, and mandate increasing fines for repeated offenders.

Pearson also noted that requiring every LEA to have an ESL-certified staff member to help students navigate the school system would not achieve the desired effect, as ESL staff serve an instructional role, rather than a support role. In other words, ESL instructors are trained in classroom strategies to help ELLs develop English proficiency and access academic curricula in English. They are not trained in strategies to help students get acclimated to their school environment and do not have to be bilingual. Removing this requirement makes sense, but would also make other parts, such as the hiring of Language Access Coordinators and training for school staff to interact with ELLs and their families, even more of an imperative.

But the hiring of the Language Access Coordinators is no simple matter. Some LEAs that are comprised of just one school and LEAs with low numbers of ELLs may not need a full time language coordinator, while other LEAs comprised of dozens of schools (DCPS is made up of 116 schools!) would definitely need more than one. This provision could be improved if it required each school to hire a coordinator for a reasonable number of hours per week, depending on the number of ELLs in the school.

Other criticisms of the bill were rooted in financial concerns. Jenny Niles, the Deputy Mayor of Education, was worried that the bill’s expanded definition of which “vital documents” must be translated would impose a “financial and unnecessary burden” on schools. The bill’s current language requires that LEAs’ vendor contracts include the translation of all “materials for dissemination to teachers, parents, and children.” As Niles pointed out, this would even include translating textbooks, which would impose heavy and unnecessary costs on LEAs. Instead, the bill could better specify which documents are truly vital to translate, and could define them in a way that is not overly burdensome to schools.

Still, the most disconcerting part of the day was hearing the limited scope of the rhetoric for improving education for ELLs. Grosso, who introduced the bill in February, said he defines success for the bill “not necessarily on an academic level” but rather on a basic civil rights level, so that ELLs “can navigate the school environment” and “have equal access to basic education that the government has a responsibility to provide.” There was no talk of improving the quality of education for ELLs by recommending or building programs to support their academic success.

While the existing law is strong, its implementation has been uneven and incomplete. If it’s true that where there is a will there is a way, then government agencies’ lack of will to truly implement the current law means there’s no way it will lead to equitable access to education for ELLs. The proposed amendment alienates the support of LEAs and mandates measures that will not necessarily lead LEAs to better serve ELLs. Let’s hope those working on passing the amendment will realize this and re-introduce a stronger version that will actually incentivize agencies to implement and enforce the language access law.

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This post is part of New America’s Dual Language Learners National Work Group. Click here for more information on this team’s work. To subscribe to the biweekly newsletter, click here, enter your contact information, and select “Education Policy.”“