The Federal Policy and Funding Landscape

To understand the current structures impacting dual-identified students, it is critical to understand the intersecting federal education policies that apply. Even as there is huge variation in the details of implementation, federal parameters represent the starting point and minimum standard for what state and localities must do to serve dual-identified students.

Federal policy addresses the education of EL students and those with disabilities in parallel yet distinct ways. Legislation and civil rights rulings separately protect both groups, requiring that schools accurately identify students for each category and provide extra instructional supports and services.¹ In both cases, federal policy calls on education leaders to determine how to serve children in ways that meet their targeted or individualized needs but do not segregate and inadvertently restrict their potential.²

The backbone of federal special education policy is the Individuals with Disabilities Education Act, or IDEA.³ First enacted in 1975, the law requires schools to provide a free appropriate public education to children with disabilities. The largest part of the law, Part B, covers children ages 3 through 21. IDEA Part C covers infants and toddlers from birth to age 3.⁴ Schools must provide services in the “least-restrictive environment,” which means that students with disabilities should be integrated with peers who do not receive special education services to the greatest extent possible.⁵

Under IDEA’s “Child Find” mandate, states must actively identify all children, birth to age 21, who may qualify for services.⁶ Child Find obligates states to search and account for all children who may need special education services, including children who are homeless, migrant, or in private education settings. Child Find systems rely on referrals from caretakers, primary care physicians, local media campaigns, public notices, and connections with other community partners.⁷

Within public schools, IDEA specifies that any student with a suspected disability should receive an evaluation at school to determine if he or she qualifies for special education services. Parents have the right to request an evaluation at any time (or withhold their consent for a school to administer one).⁸ While there is considerable variation in how evaluations are carried out, the law requires an evaluation by a multidisciplinary team, which can include observation and formal or informal assessment.⁹ After an evaluation, a school will typically hold an eligibility meeting with parents, the child’s general classroom teacher, a special educator, school administrators, and others. At the meeting, the team reviews data from the evaluation and other sources, such as from parents, classroom teachers, student work samples, and other records. Once all the information has been reviewed, the team determines whether a student qualifies for special education services.

To qualify under IDEA, a student’s school performance must be “adversely affected” by a disability in one of the 13 categories, including autism, specific learning disability, speech or language impairment, intellectual disabilities, emotional disturbance, and other health impairment (such as attention and executive functioning disorders).¹⁰

During the evaluation process, IDEA also requires that assessment and other materials are provided and administered in the child’s home language, by trained personnel, and “in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally.”¹¹ This requirement is appended with “unless it is clearly not feasible to so provide or administer,” an important caveat given the increasing diversity of languages spoken within school districts.¹² Parent participation is a central tenet of IDEA and by law schools must take steps to ensure that parents are informed and included in team meetings and decisions. For parents with limited English who require language assistance, schools must provide an interpreter and translate any written documents into the family’s home language.¹³

Once a student qualifies for special education services, the team develops an Individualized Education Plan (IEP), a legal document that details the specialized instruction and services a school will provide.¹⁴

Federal policy related to English learners primarily involves Titles I and III of the Elementary and Secondary Education Act.¹⁵ Congress most recently reauthorized this law in 2015 as the Every Student Succeeds Act (ESSA). Title I of ESSA provides additional funds for low-income schools and includes accountability provisions related to EL achievement and growth in English language proficiency. Title III focuses exclusively on EL services and funding.

Under Title III of ESSA, states must follow a process for identifying K–12 ELs. Similar to IDEA’s process for identifying students with disabilities, Title III allows states considerable variation within this process.¹⁶ Typically, however, the process begins with a home language survey that schools send home with all incoming students (kindergarteners and other students enrolling for the first time) to identify the pool of students who speak a language other than English at home. Next, students in this pool participate in a screening assessment of their English language skills. Students who score below a state’s benchmark are formally classified as ELs and are eligible for a language instructional educational program, such as English as a second language (ESL) or bilingual models.¹⁷

EL students are tested annually in their English language development. Once they meet the state’s proficiency benchmark, they are reclassified as fluent English proficient, and additional language services are phased out.¹⁸ After exiting EL status, these former ELs must be monitored by the district for at least two years to ensure they are progressing comparably to their never-EL peers.

Because the groups of students represented under IDEA and ESSA overlap in the case of dual-identified ELs, lawmakers and administrators have made some effort to coordinate the two separate domains. For example, ESSA guidance explicitly notes that Title III funds may be leveraged for the professional development of special education teachers working with ELs.¹⁹ The new Title III requirements also mandate—for the first time—that states report on the academic progress and achievement of dual-identified ELs as a distinct subgroup.²⁰ In comparison, under IDEA, states must report data on the number and percentage of children with disabilities receiving services, disaggregated by subgroups, which includes limited English proficiency status.²¹

These two pieces of federal legislation—IDEA and ESSA—provide an important backdrop for dual-identified learners, defining who these students are and shaping what services they are eligible to receive. To execute federal requirements under IDEA and ESSA’s Title III, schools need adequate financial resources. Congress, however, has chronically underfunded both policies, impacting ELs with disabilities in a compounded way.

When Congress first passed IDEA in 1975, it promised to pay for 40 percent of the overall average cost of educating students with disabilities. It has never come remotely close to this amount: in the last eight years, federal funding has hovered around 16 percent, less than half of the original goal.²² This trend exists in the context of escalating special education costs, as the number of children with disabilities rises and the legal standard for special education benefits increases.²³

Although federal dollars must supplement and not supplant local spending, Congress’s failure to provide sufficient resources has strained state and district compliance with IDEA. The lack of sufficient federal support can lead state and local leaders to cut special or general education services, limit the hiring of necessary teachers and personnel, and even cap special education identification rates.²⁴ States and districts looking to cut costs may find a vulnerable target in EL students and their families, and disproportionately deny their access to special education when scaling back on services.

Texas offers a case in point. According to a Houston Chronicle investigation, state officials devised a system to keep tens of thousands of children out of special education. Motivated to lower costs, leaders set an arbitrary target in 2004 that no more than 8.5 percent of students should be identified for services—despite a state and national average of around 13 percent.²⁵ English learners seem to have been hit the hardest. While overall EL enrollment rose, EL enrollment in special education dropped by 5 percent. By 2016, just over 7 percent of ELs in Texas (compared to 9 percent of non-ELs) were identified for special education.²⁶

In the case of EL funding, a similar story of rising costs but stagnant (or decreasing) funds exists with Title III allocations. In 2002, Title III received $664 million to serve around four million ELs, working out to about $166 per student. Advocates considered this amount inadequate at the time, and it fell far below the $750 million authorized by Congress.²⁷ For fiscal years 2015 through 2019, Title III appropriations remained flat, at $737 million for closer to five million students, about $147 per student.²⁸ The relative ratios convey a downward trend of investment. Moreover, the flat spending levels continue despite the fact that Congress authorized substantial increases in Title III spending under ESSA, allowing allocations as high as $885 million by 2020.²⁹