In 1985, the Education Law Center (ELC) learned about a 16-year-old Cambodian refugee in the School District of Philadelphia who had never been identified as needing special education services due to his limited English proficiency.
This student became the named plaintiff in ELC’s 1986 class-action suit, Y.S. et al. v. School District of Philadelphia, which challenged the quality of instruction and services provided to non-English-speaking students and the failure to provide interpretation and translation services that hampered parent participation in students’ education. The case spanned more than 25 years and resulted in multiple court orders, stipulations, and remedial plans that significantly improved many District policies and practices.
In 2015, ELC, the Public Interest Law Center, and Drinker Biddle & Reath LLP filed a class-action lawsuit, T.R. et.al. v. School District of Philadelphia, challenging the failure to provide sufficient translation and interpretation services to ensure the meaningful participation of parents with limited English proficiency in the special education process and to ensure equal educational opportunities for their children with disabilities. This case is pending in federal court.
These cases highlight the important nexus between civil rights laws requiring school districts to eliminate language barriers for English learners and ensure equal educational opportunities and laws protecting the right of all students with disabilities to receive a free appropriate public education.
Here are three important rights to keep in mind to ensure that EL students with disabilities and children whose parents have limited English proficiency receive the services they need.
English learners (ELs), like all other students who may have a disability, must be identified and evaluated for special education and disability-related services in a timely manner. National studies indicate that ELs are underrepresented in special education programs. This may occur due to a presumption that academic difficulties must be the result of limited English proficiency. But there are safeguards to protect EL students. Contrary to a common myth, there is no “waiting period” before an EL can be evaluated to determine eligibility for services under the federal Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act. A child’s evaluation must include an assessment of English language proficiency, and a child cannot be identified as eligible based on lack of instruction or proficiency in English. However, the mere fact that the child is an English learner cannot be a basis to deny a request for an evaluation. In addition, to ensure that ELs are accurately assessed, they have the right to be evaluated in their native language.
ELs with disabilities must receive both the language assistance and disability-related services to which they are entitled under federal law. To ensure that both are effectively provided, an individualized education program (IEP) must address the language-related needs of an EL who has a disability, and the IEP team designing the plan must include participants knowledgeable about that student’s language needs and progress.
Translation and interpretation services of vital documents must be provided to parents with limited English proficiency to ensure “meaningful parent participation” in the special education process. The IDEA consistently recognizes that parent participation is essential to ensuring that a child with a disability receives a free appropriate public education in the least restrictive environment. LEP parents must be fully informed of requests to evaluate their child, the content of evaluations and assessments, proposed services detailed in an IEP, whether their child is making progress, and their right to challenge decisions. In addition, LEP students must be given the opportunity to participate in the IEP process, including transition planning. All of this requires fully translated documents and sufficient oral interpretation services to enable LEP parents to make informed and knowledgeable choices and understand their rights.
Using these essential legal protections to safeguard the rights of students with disabilities is critical to improving the educational and life outcomes of these vulnerable children.
Maura McInerney is senior attorney at the Education Law Center of Pennsylvania.