Education Code FAQs

‍In general, EC Section 60811.8 prohibits denial to English learners of equal participation in the standard instructional program of schools. However, LEAs may deny enrollment to some portions of the standard instructional program to newcomer students provided that their course of study is “designed to remedy any academic deficits incurred during participation and that the course of study is reasonably calculated to enable the pupil to attain parity of participation in the standard instructional program within a reasonable time.” This exception is meant to allow flexibility for LEAs developing newcomer-specific programs, and is not meant to prohibit, restrict, or discourage newcomer enrollment in standard courses. https://www.cde.ca.gov/sp/ml/ab2735faq.asp

School districts generally may not unjustifiably segregate students on the basis of national origin or EL status, the categories that most newcomers fall into.  However, some sound EL programs are designed to require that certain EL students, especially newcomers, receive separate instruction for a limited portion of the day or a limited period of time, School districts are expected to carry out their chosen program in the least segregative manner consistent with achieving the program’s stated educational goals.  Thus, specialized programs for newcomers are lawful as long as they are carefully designed to address newcomers’ unique needs for a limited period of time, providing for as much interaction with non-EL students as possible.

“Heterogeneous groups provide students who are not strong English speakers with peer modeling and support. Homogeneous groups help teachers to pay close attention to students’ needs related to the theme of the lesson or the discipline-specific uses of English. In all circumstances, schools should carry out their chosen programs in the least segregated manner consistent with achieving the program’s stated educational goals.” Newcomer Toolkit

U.S. Department of Education, p.55. https://ncela.ed.gov/sites/default/files/2023-09/NewcomerToolkit-09152023-508.pdf.

https://www.cde.ca.gov/sp/se/ac/documents/ab2785guide.pdf.

There is no minimum number of minutes of ELD – either designated or integrated – required under state or federal law.  Instead, according to the CDE, “[a]n LEA determines the amount of time and frequency of the integrated or designated ELD instruction to support EL students in overcoming language barriers and recouping academic deficits that may be incurred while learning English. An LEA should evaluate the design and implementation of its EL instructional program to ensure it is meeting its intended goals (5 California Code of Regulations Section 11302; Castaneda v. Pickard [5th Cir. 1981] 648 F.2d 989, 1009-1011).” ELD Frequently Asked Questions (FAQs). https://www.cde.ca.gov/sp/ml/eldstandards.asp.  ‍

Integrated ELD is instruction that uses the ELD standards in tandem with the subject area standards with the goal of enabling EL students to learn both the content and the academic language taught in the class. If the LEA’s program is designed to provide EL students grade level subject matter instruction in mainstream classes, it must provide adequate integrated ELD in those classes to enable EL students to understand what they are taught.‍

School district programs for EL students must be designed and implemented to address the needs of all the EL students in the district, newcomers as well as those who began their schooling in the US. Consistent with Castaneda, the CDE instrument for monitoring LEAs states that “ELD instruction much be designed for EL students to develop proficiency in English as rapidly and effectively as possible,” and that academic instruction “must be designed and implemented to ensure that EL students meet the LEA’s content and performance standards for their respective grade levels within a reasonable amount of time.”https://www.cde.ca.gov/ta/cr/progrinst202425.asp.  District should define their expectations for student progress and evaluate the success of their programs based on the success of all students, including newcomers, in meeting those expectations.  If programs are not succeeding in teaching newcomers English and making adequate academic progress, they must be modified.‍ ‍

State law requires assessments that may be used in evaluating student success.  According to the CDE, school districts “must annually assess the English language proficiency (ELP) and academic progress of each EL. An LEA shall administer the ELPAC summative assessment during the annual summative assessment window. (20 U.S.C. sections 6311[b][2][G], 6823[b][3][B]; EC sections 313, 60810; 5 CCR sections 11306, 11518.15[a]).” English Learner 2024–25 Program Instrument, p.4. https://www.cde.ca.gov/ta/cr/progrinst202425.asp.‍

When a school district suspects a child has a disability, it should not wait to refer them for Special Education evaluation, regardless of their proficiency in English. Under Child Find requirements, a District’s obligation to locate, identify, and evaluate newcomers with disabilities in a timely manner is no different from that owed to any other student. Limited English proficiency and time lived in the United States are not reasons to delay an evaluation for Special Education. A district that denies special education services to English Learner students with disabilties, while providing such services to English proficient students with disabilities, is discriminating against the disabled EL students on the basis of their national origin language minority status.‍ ‍

The under-identification of newcomers’ special, education  needs poses many challenges: students do not receive the needed supports for learning; schools with large newcomer populations receive fewer district-supported services (e.g., fewer bilingual paraprofessionals, parent liaisons, and resources for teachers); students, particularly at the secondary level, will never be identified and will lose out on services that travel with them past high school; students are at an elevated risk for dropping out of school; schools and districts put themselves at risk under the Child Find laws and leave themselves vulnerable to lawsuits. Guidance for District Administrators Serving Newcomer Students, Policy Analysis for California Education (PACE), p.9. https://edpolicyinca.org/sites/default/files/2023-06/pb_hansen-aug2023.pdf. ‍ ‍

“Appropriate disability identification processes that evaluate the student’s disability-related educational needs and not the student’s English language skills will help school personnel to accurately identify students in need of disability-related services. In addition, LEAs must ensure that a student’s special education evaluation is provided and administered in the student’s native language or other mode of communication and in the form most likely to yield accurate information about what the student knows and can do, unless it is clearly not feasible to do so. Assessing whether a student has a disability in his or her native language or other mode of‍ communication can help educators ascertain whether a need stems from lack of ELP and/or a student’s disability related educational needs.”  U.S. Department of Education, English Learner Toolkit for State and Local Education Agencies (SEAs and LEAs), p. 83.   https://www.ed.gov/sites/ed/files/2020/10/eltoolkit.pdf.

‍“A child’s English learner status should never be seen as a barrier to referral for special education.  It is important to remember that some English learners have disabilities, just as English-only students do, that make them eligible to receive special education and related services. Assessing an English learner for a disability does not require a waiting period for English language skills to develop. Instead, districts should analyze data from a thorough review of all factors providing a clear picture to the SST as to whether a referral to special education is appropriate.” California Practitioners’ Guide for Educating English Learners with Disabilities, pp. 127-128. https://www.cde.ca.gov/sp/se/ac/documents/ab2785guide.pdf.

Yes, a school district may serve students in a newcomer program for longer than three years, based on their individual needs.   According to CDE, newcomer programs should include requirements for student eligibility and program timelines for exiting or transitioning from the newcomer program.   Under state and federal law, these requirements may not have the effect of unnecessarily segregating EL students from their peers.‍

AB 714 established a definition of "newcomer pupil," that adopted the federal definition of "immigrant children and youth," including a provision that such students have not attended US schools for more than three full years. The bill did not establish a time limit on the eligibility of students for newcomer programs.  Students who have not yet met program criteria for exit from a newcomer program may continue in that program.  It is important, however, to ensure that this determination considers the individual background and needs of the student, their reasons for their inability to reach exit criteria, their ability to access grade level curriculum, and the impact of their continuation in a segregated program. https://californianstogether.org/guidance-for-serving-newcomers/

When an LEA determines that the migratory child or newcomer pupil is reasonably able to complete local graduation requirements within a fifth year of high school, it shall do all of the following:

●      Consult with the pupil and the person holding the right to make educational decisions for the pupil regarding the pupil’s option to remain in school for a fifth year to complete the LEA’s graduation requirements.

●      Consult with the pupil, and the person holding the right to make educational decisions for the pupil, about how remaining in school for a fifth year to complete the LEA’s graduation requirements will affect the pupil’s ability to gain admission to a postsecondary educational institution.

●      Consult with and provide information to the pupil about transfer opportunities available through the California Community Colleges.

●      Permit the pupil to stay in school for a fifth year to complete the LEA’s graduation requirements upon agreement with the pupil, if the pupil is 18 years of age or older, or, if the pupil is under 18 years of age, upon agreement with the person holding the right to make educational decisions for the pupil. (EC Section 51225.1[b].)

https://www.cde.ca.gov/sp/ml/ab2121faqs.asp

In California, newcomer students can be up to 21 years old to enroll in a high school, but they must still have been attending one or more schools in the US for no more than three full academic years to be considered a "newcomer pupil," according to California Department of Education guidelines and state law (AB 714). While students are required to attend school until age 18, California schools can provide placement for newcomers up to age 21. EC § 51225.1; EC § 48200.

‍“There is more to consider for newcomers at the high school level. The law is clear that all students must attend school until the age of 18. What can cause some confusion is schools’ responsibility to provide placement for any student, newcomers included, up through the age of 21. It should be the student’s not the school’s decision whether to continue in a comprehensive high school or specialized senior program after age 18. This is particularly important because it is recommended that newcomer students be placed at the secondary level based on incoming credits, not age. If districts follow this guideline, then many newcomers at the high school level will not be in an age-peer group and will not graduate by the age of 18. This is acceptable, however.” Guidance for District Administrators Serving Newcomer Students,” Policy Analysis for California Education (PACE), p.5. https://edpolicyinca.org/sites/default/files/2023-06/pb_hansen-aug2023.pdf.‍

‍ Yes. Per EC Section 35160 “the governing board of any school district may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established.” Additional guidance is available on the California Department of Education Local Control - Districts and Counties web page.