Help! I can’t get out of ESL!!

A school district in New York put a kindergartener in the ESL program despite the fact that the parents and the adult sister informed the district that the only language the child spoke was English. The child remained in that program until the 5th grade. She was not allowed to exit the ESL program because she consistently failed to demonstrate proficiency in English on the state standardized test of English language skills.

Let’s think about that for a bit. It makes sense that a student who needs ESL services should continue to receive them until the student can demonstrate that the services are no longer needed.  But there are many reasons why a student may not show proficiency in English language skills on a standardized test.  Limited English proficiency is one reason. Dyslexia is another.

In this case, the district finally tested the child for special education in 5th grade. Lo and behold—the girl qualified. She had ADHD and dyslexia.  When the school began providing special education services, the child’s performance improved.

It’s a good thing that the district caught this in 5th grade, but it would have been far better if they had looked into special education much earlier.  Like in 2nd grade, when a teacher noted that there might be something other than language acquisition going on here.

The family sued the district, alleging that the child had been placed in ESL solely because she was Hispanic, and thus was the victim of discrimination based on national origin. The family lost the suit—but only for a procedural reason. The court held that this kind of claim should have been presented to a special education hearing officer before going to court.

The case is a good reminder that we need to be sure to separate language acquisition issues from disability issues.  Here we have a student who speaks no language other than English. Over several years, she cannot demonstrate mastery of English. She is falling behind her peers more each year.  At some point, educators should look into other reasons for the student’s problems.

From the court’s opinion it sounds like this little girl was placed in ESL because Spanish was spoken in the home, and the person who conducted the informal interview with the child believed that she needed ESL services.  Maybe that’s kosher in New York, but it definitely isn’t in Texas.  We don’t put kids in ESL based on the language spoken at home. We do it based on the student’s proficiency.

The Home Language Survey is supposed to tell us 1) the language normally used in the home; and 2) the language normally used by the student.  TEC 29.056(a)(1).  The LPAC can classify a student as limited in English proficiency only based on the student’s proficiency in English—regardless of what language is spoken at home. TEC 29.056(c).

One more point: it sounds like this child simply got put into the wrong special program. She never was an English Language Learner and did not belong in ESL. But let’s remember that you do have kids who are ELL, need bilingual or ESL services, and are dyslexic also.  I suspect that in those cases it is difficult to sort out whether the student’s learning problems are more due to dyslexia or to language acquisition.  But the district needs to attend to both problems.

The case is Reyes v. Bedford Central School District, decided by the Southern District of New York on September 27, 2017. We found it at 70 IDELR 223.