In 2023, the U.S. Department of Education’s Office for Civil Rights (“OCR”) released a Fact Sheet on Ensuring Meaningful Participation in Advanced Coursework and Specialized Programs for Students Who Are English Learners (“Fact Sheet”), which is available here. The Fact Sheet provides data showing OCR found that students who are English Learners (“ELs”) have lower participation rates in specialized or advanced programs offered at elementary and secondary schools. OCR noted that schools must ensure eligibility for such programs, such as evaluation and testing procedures, do not screen out ELs because of their limited English proficiency, unless a program requires English proficiency for participation.

In 2017-2018, the most recent year for which civil rights data are available, ELs were three times less likely than their non-EL classmates to be enrolled in Advanced Placement (AP) courses and two times less likely to be enrolled in International Baccalaureate (IB) when offered by their schools.

Title VI of the Civil Rights Act of 1964 (“Title VI”) prohibits discrimination on the basis of race, color, or national origin in any program or activity receiving Federal financial assistance. OCR provided examples of types of practices that could raise Title VI discrimination concerns with respect to these program placements, which included the following:

  1. Categorically excluding EL students from advanced or specialized programs;
  2. Creating scheduling barriers for participation, such as scheduling the only AP calculus class for the same period as EL instruction;
  3. Using selection criteria not directly related to the advanced course or specialized program, and that negatively affects EL students;
  4. Using different selection criteria for ELs;
  5. Counseling ELs against taking advanced or specialized programs because the programs would be too difficult for them or they should focus on language skills;
  6. Providing information about advanced or specialized programs to only non-EL students; and
  7. Excluding teacher recommendations or failing to request recommendations from EL teachers.

The Fact Sheet provides additional resources for schools to help support schools’ efforts to increase access to specialized programming for ELs.

What this means to you

School districts should review their policies regarding the placement of EL students in advanced or specialized courses and data regarding the participation of such students in these programs to ensure that they are providing EL students with sufficient opportunities and not engaging in practices that could raise Title VI concerns.