U.S. DEPARTMENT OF JUSTICE
Robert C. Troyer
Acting United States Attorney
District of Colorado
Civil Rights Division
Educational Opportunities Section
KT:AR:ZW
USAO
SAS:EHM:ASV
CRT DJ 169-13-65

1225 Seventeenth Street, Suite 700
Seventeenth Street Plaza
Denver, Colorado 80202
(303) 454-0100
FAX (303) 454-0400

January 17, 2016
Via First Class Mail
Ms. Holly Ortiz
Semple, Farrington & Everall, P.C.
1120 Lincoln Street, Suite 1308
Denver, CO 80203
Re:

EEOA Compliance Review of the English Learner Programs and Services in
the Westminster Public Schools

Dear Ms. Ortiz:
We are writing to follow up on our compliance review of the Westminster Public
Schools’ (formerly Adams County School District 50) provision of English Learner (EL)
instruction and services under the Equal Educational Opportunities Act of 1974 (EEOA). Please
extend our sincere thanks to the District employees who helped compile the information we
requested in our information requests1 and who assisted us during our October 2015, May 2016,
and October 2016 site visits, during which we visited the following eleven schools: Fairview
Elementary, F.M. Day Elementary, Sunset Ridge Elementary, Tennyson Knolls Elementary,
Sherrelwood Elementary, Westminster Elementary, Ranum Middle, Scott Carpenter Middle,
Shaw Heights Middle, Westminster High, and Colorado STEM Academy.
The EEOA requires state and local educational agencies (SEAs and LEAs) to take
appropriate action to overcome language barriers that impede equal participation by all students
in the instructional program. 20 U.S.C. § 1703(f). While the statute does not require these
agencies to adopt a particular type of language remediation program, courts assessing “the
appropriateness of a particular school system’s language remediation program . . . under §
1703(f)” consider the following three factors in their analysis: (1) whether the chosen program is
based upon sound educational theory or principles; (2) whether the program is reasonably
1

We requested information on May 19, 2015, September 22, 2015, January 19, 2016, April 18, 2016, and October
28, 2016. For citation purposes, we refer to these requests as May 2015 RFI, September 2015 RFI, January 2016
RFI, April 2016 RFI, and October 2016 RFI, respectively.

 calculated to implement effectively the educational theory (i.e., the school district is using
“adequate . . . practices, resources and personnel necessary to transform the theory into reality”);
and (3) whether, after a period of time sufficient to give the program a legitimate trial, the results
of the program show that language barriers are in fact being overcome within a reasonable period
of time. Castañeda v. Pickard, 648 F.2d 989, 1009-11 (5th Cir. 1981). The evaluation of the
Castañeda factors also considers whether districts have designed and implemented programs that
“are reasonably calculated to enable [EL] students to attain parity of participation in the standard
instructional program within a reasonable length of time after they enter the school system.” Id.
at 1011.
We reviewed the District’s provision of EL instruction and services in light of the above
criteria and other relevant case law. We are hopeful that we can resolve the noncompliance set
forth in this letter through an out-of-court settlement agreement. See 20 U.S.C. § 1710. We
share the District’s desire to work collaboratively to address the results of our compliance
review. As discussed in the sections that follow, the District must take several remedial steps to
come into compliance with its obligations under § 1703(f) of the EEOA and Title IV of the Civil
Rights Act of 1964 (Title IV). We look forward to the opportunity to discuss these steps,
including any ideas the District may suggest, and the substance of this letter with you and any
District personnel you deem appropriate. Please let us know times that work in February.
In January 2015, the U.S. Departments of Education and Justice issued joint guidance to
assist “[school districts] in meeting their legal obligations to ensure that EL students can
participate meaningfully and equally in educational programs and services.”2 The U.S.
Department of Education simultaneously released an English Learner Tool Kit, which offers
SEAs and LEAs practical ways to meet the obligations discussed in each chapter of the
guidance.3 Both documents include examples of how to comply with the EEOA that may prove
helpful to the District as we engage in negotiations pursuant to these findings.
Background
According to the District’s March 2016 AdvancED4 Executive Summary, Westminster
Public Schools (WPS or District) serves approximately 9,504 students in 19 schools, with
roughly 46% of its student population classified as ELs.5 The EL population has risen since
2000, when it was approximately 20%, and has remained steady in the 40% range since 2006.6
Spoken languages of students in the District include, but are not limited to, Spanish (the most
common), Vietnamese, Hmong, Korean, Chinese, Laotian, Russian, German, Bulgarian,
Ukrainian, Hindi, French, Somali, Oromo/Ethiopian, Arabic, and Tagalog. Based on the

2

English Language Learners and Limited English Proficient Parents, Dear Colleague Letter, Jan. 7, 2015,
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf (EL DCL).
3
English Learner Tool Kit, http://www2.ed.gov/about/offices/list/oela/english-learner-toolkit/eltoolkit.pdf.
4
AdvancED is a school accreditation non-profit organization.
5
Westminster Pub. Sch., AdvancED Executive Summary, 1 (Mar. 2016) (provided in response to the April 2016
RFI).
6
See Westminster Pub. Sch., Strategic Plan Version 2 (Sept. 2016), available at
http://www.westminsterpublicschools.org/cms/lib03/CO01001133/Centricity/Domain/1/Vision%202020%20Versio
n%202%20%20September%202016%20FINAL.pdf.

2

 District’s data for school year (SY) 2015-16, more than 4,4007 of these students are classified as
active or monitored ELs, i.e., those who have not exited the District’s English Language (EL)
program. The District is also home to thousands of recently exited and former ELs.
In 2008, the District replaced traditional grade levels and implemented a competency
based system (CBS). The District’s CBS instructional model, now in its eighth year, is an
ability-grouping system where students are grouped in some content areas based on subjectspecific competency or performance levels, rather than grade levels. The content areas for SY
2015-16 included math, literacy, science, social studies, technology, visual arts, performing arts,
physical education, world language, personal/social skills, and general electives. A number of
learning targets make up each performance level within the content areas, and students are not
promoted to the next performance level until they demonstrate proficiency or mastery of each
concept and skill within the targets. To graduate from high school, students must complete 12
performance levels in each content area.
Within the CBS approach, the District has designed a Blended Services
Model/Interventionist Framework, which is a methodology developed by the District for serving
“focus students.” Focus students are those receiving special services of any kind (i.e., struggling
and advanced learners), including ELs, special education students, and gifted and talented
students, and who have a “gap between their expected performance and their actual
performance.”8 Under the Interventionist Framework, Culturally and Linguistically Diverse
(CLD) Specialists, Title I teachers, and special education teachers are considered
“interventionists” who form a team at school sites to serve ELs, students with disabilities
(SWDs), and other “focus students” who may need assistance in the CBS model. For example,
struggling learners who are performing 2-4 levels below their expected performance level
receive “targeted” intervention and those who are performing over 4 levels below their expected
performance level receive “intensive” intervention.9 District administrators have asserted in our
EEOA compliance review that the Interventionist Framework constitutes an adequate way to
serve ELs because they believe that any one of these teachers can provide language assistance to
ELs, regardless of whether they have a state certification in English as a second language (ESL)
or one of Colorado’s endorsements for teachers of ELs.
In Colorado, teachers with endorsements to teach ELs are called Culturally and
Linguistically Diverse Education (CLDE) Specialists.10 Colorado’s current endorsement is
called the CLDE endorsement, and the prior endorsement was called the Linguistically Diverse
Education (LDE) endorsement.11 The Colorado Department of Education (CDE) considers
7

This number was calculated after removing duplicates in an excel spreadsheet (“Request A 1 v 0.1”) provided by
the District in response to the January 2016 RFI.
8
Westminster Pub. Sch., Instruction – Interventionist Framework, available at
http://www.cbsadams50.org/instruction/ (emphasis in original).
9
Westminster Pub. Sch., Diagram Describing the Types and Levels of Learner Intervention, available at
http://www.cbsadams50.org/wp-content/uploads/2011/10/Graphic2_Diamond_StudentPop.pdf.
10
See Colo. St. Bd. of Ed., 1 C.C.R. 301-37:2260.5-R-8.22 (providing the requirements for endorsement in
culturally and linguistically diverse education). The District refers to these teachers as CLD Specialists.
11
Id.; see also Colo. Dep’t of Ed., Clarifying CLD and LDE, available at
https://www.cde.state.co.us/cdeprof/cldandlde (discussing the differences between the current CLDE add-on
endorsement and the previous stand-alone LDE endorsement).

3

 teachers with either the CLDE or the LDE endorsement to be qualified to teach ESL, also known
as English Language Development (ELD), to EL students.12 The District requires a CLDE or
LDE endorsement (or equivalent endorsement from another state) for CLD Specialist positions.13
The District’s current EL-to-CLD Specialist ratio is approximately 100:1, though the ratio is
often higher at particular schools, as discussed further below.
In the District’s Unified School Improvement Plan for SY 2015-16, the District reported
to CDE that it provides language assistance through “a co-teaching model for the beginner and
intermediate (K-12) EL students as well as direct language services provided by a CLD-endorsed
Specialist.”14 In this Plan, the District also stated that, “[l]anguage blocks and direct services are
taught on a daily basis of 45 minute increments. It is a core curriculum subject guaranteed to all
English Learners (ELs).” Since SY 2014-15, the District’s CLD Program Plans have also
represented that all ELs receive daily, 45-minute language blocks. This information was also
provided to us in our compliance review.15 During our site visits, schools reported pushing into
and pulling out ELs from core content classes to deliver ELD.
The District also reported that ELs receive Sheltered Instruction (SI) in all general
education classrooms.16 The District requires all newly hired teachers to complete a 30-hour
training in SI strategies during their first year of employment (SI training),17 unless they have a
CLDE or LDE endorsement or have completed training in SI elsewhere. The District stated that
its SI training uses the Sheltered Instruction Observation Protocol (SIOP) Model. During SY
2015-16, one school, F.M. Day Elementary School, also had a Transitional Bilingual Education
(TBE) program for K-2nd grade students.18
Summary of Compliance Issues
Our conclusions regarding the District’s EL program are based on (1) our review of the
data the District provided in response to our five information requests; (2) our interviews of
District officials and employees; and (3) our observations on site at eleven of the nineteen
District schools and part of the SI training. For two visits, we were accompanied by Dr. Deborah
Short, the United States’ expert in second language learning and K-12 EL programs and
instructional practices. Dr. Short, along with Jana Echevarrίa and MaryEllen Vogt, co-developed
the SIOP Model.

12

Id.
The District provided data on the number of teachers with CLDE or LDE endorsements in response to the
September 2015 RFI.
14
Westminster Pub. Sch., Unified Improvement Plan for 2015-16, 11, available at
https://cedar2.cde.state.co.us/documents/UIP2016/0070-0000.pdf (provided in response to the October 2016 RFI).
15
Westminster Pub. Sch., Culturally and Linguistically Diverse Education Program Plan, 24 (2015-16);
Westminster Pub. Sch., Culturally and Linguistically Diverse Education Program Plan, 26 (2014-15) (both
provided in response to the May 2015 RFI).
16
See District’s Response to the May 2015 RFI at 2 (“Students receive sheltered instruction in the general education
classroom and a 45 minute language block during the day.”).
17
See SY 2016-17 descriptions of the SI training that the District provided in response to our October 2016 RFI.
The District has referred to this training as SI training, SIOP training, and CLDE training.
18
F.M. Day Elementary School’s principal reported that he hoped to transition the program to a Transitional Native
Language Instruction program in SY 2016-17.
13

4

 An EL program consisting of ELD instruction delivered via pull-out, push-in, and coteaching and SI in core content classes can constitute a viable EL program under prong one of
the Castañeda test. However, the District’s implementation of its program falls short under
prong two, which requires adequate “practices, resources and personnel necessary to transform
[the District’s chosen educational] theory into reality.” Castañeda, 648 F.2d at 1009-10. The
District also does not adequately evaluate and monitor its EL program for effectiveness, as prong
three of the Castañeda test requires. Finally, the data provided by the District shows that large
numbers of ELs are not overcoming their language barriers or participating equally in the
standard instructional program within a reasonable period of time. See id. at 1011.
As a general matter, interviews, data, and even the basic structure of the EL program
reveal that the EL program is far from fully embedded or embraced in many District schools with
respect to instructional programming, budgeting, hiring, and teacher assignment.
Implementation of the EL program is seriously compromised by insufficient qualified teachers to
deliver it, scheduling challenges, and the absence of an ELD curriculum or any SI curricula for
content courses. Most ELs receive no ELD from CLD Specialists and many ELs who receive
ELD do not receive an adequate amount of services. Based on our classroom observations and
interviews, general education teachers employ SI inconsistently, if at all. There is wide variation
among individual schools regarding the emphasis placed on EL programming. The District also
does not adequately communicate its ELD and SI expectations to schools, or monitor schools’
EL services and practices to determine if they are adequate and effective at meeting the ELs’
needs.
Specific practices of the District that fail to comply with Section 1703(f) of the EEOA are
summarized here and discussed in detail below.
1. The District did not test the English language proficiency (ELP) of all students whose
home language surveys indicated a language other than English in recent years,
resulting in under-identification of ELs.
2. Many ELs receive inadequate levels of ELD services and some receive none. The
District’s inconsistent guidance and lack of monitoring of the schools’ provision of
ELD services exacerbates this noncompliance.
3. The District does not adequately serve EL newcomers and EL students with
interrupted formal education.
4. The District fails to provide many EL SWDs with adequate EL services.
5. The District does not have a sufficient number of qualified CLD Specialists to serve
its large EL population. In addition, based on our review, schools do not use their
existing CLD Specialists in efficient ways to maximize services to ELs and expect
these teachers to defer to other instructional interventions, further compromising the
quality of the language assistance program and its consistency across schools.

5

 6. Though the District provides some SI training to support teachers of ELs, classroom
observations revealed inadequate and inconsistent use of SI strategies and the need
for additional teacher training on current and effective methods for sheltering content
and training for administrators on how to evaluate SI and ELD teachers of ELs.
7. In its current implementation of CBS, the District denies many ELs access to at least
part of their grade-level curriculum and its data show that many fail to catch up and
achieve parity of participation in their grade-level program within a reasonable period
of time.
8. ELs lack an equal opportunity to participate in the Colorado STEM Academy.
9. The District lacks an ELD curriculum and has insufficient materials to support ELs.
10. The District does not adequately monitor the academic progress of former ELs who
have exited the EL program.
11. The District fails to adequately evaluate and monitor its EL program.
12. The District’s data show that the EL program is not effective for many ELs, including
large numbers of long-term ELs, who have been in the program for six years or more,
and that modifications to the program are needed under prong three of Castañeda.
13. The District fails to ensure meaningful communications with Limited English
Proficient (LEP) parents through adequate translation and interpreter services.
1. The District’s Process of Identifying and Assessing Potential EL Students Has Led
to EL Under-Identification
School districts must identify and assess potential EL students in need of language
assistance in a timely, valid, and reliable manner. See, e,g., Rios v. Read, 480 F. Supp. 14, 23
(E.D.N.Y. 1978) (school districts must identify students using “objective, validated tests
conducted by competent personnel”). Districts must conduct initial assessments of students’
ELP in all four language domains: reading, writing, listening, and speaking. See id. at 23-24;
Keyes v. Sch. Dist. No. 1, Denver, Colo., 576 F. Supp. 1503, 1518 (D. Colo. 1983) (Matsch, J.)
(noting that oral, reading, and writing skills are all necessary to “parity in participation in the
total academic experience”) (internal quotation omitted).
The District’s process for identifying EL students is centralized within the District
Registrar and consists of using a Home Language Survey (HLS) to identify potential ELs and
then testing the ELP of those potential ELs. The District currently uses the WIDA Consortium’s
W-APT screener to assess students’ ELP. The Registrar works with front-office staff and CLD
Specialists at each school to collect HLS forms for new registrants. Schools send completed
HLS forms to the Registrar and the school’s CLD Specialists. The data is entered on Infinite
Campus, and a Google Docs spreadsheet is created by the Registrar and shared with the schools
to identify students requiring the W-APT. The District’s policy is to administer the W-APT
6

 within two weeks of registration. The CLD Specialists are responsible for administering the ELP
assessment, which is time-consuming and diminishes their instructional time with ELs. At
Westminster High School, students who register after November are registered by the school
secretary, who informs the Registrar, but does not bring new students to the attention of the CLD
lead teacher. Thus it is unclear who administers the W-APT to these late-registered students at
Westminster High School (assuming it is administered at all), and students may be placed in
courses based solely on seating availability, irrespective of their level of English indicated by
their score on the W-APT.
During our site visits in SY 2015-16, the District was in the process of transitioning to a
new HLS form, because the old HLS form caused confusion due to the questions regarding the
primary language spoken at home and the language spoken by the child. On the old form, when
parents indicated that their child spoke English, but the primary home language was not English,
the District did not administer an ELP assessment. Based on experience with other states and
school districts, including those who test the ELP of all students whose HLS indicates a home
language other than English, this practice frequently results in the under-identification of ELs.
The District appears to recognize this risk because it informed us that the new HLS form requires
administration of the ELP assessment if the parent indicates that a language other than English is
spoken at home.
The District did not require schools to use the new HLS form during SY 2015-16 but
indicated it would be mandatory in SY 2016-17. However, during our review of student
cumulative files at Westminster High School in October 2016, we found printed summaries of
students who had enrolled in August 2016 via the online registration system, which did not use
the new HLS form. The old form is still available on the District’s website.19 Continued use of
the old form online and in certain schools likely led to greater EL under-identification in SY
2015-16 and even SY 2016-17 for online registrants. Though W-APT scores were widely
present in the cumulative files we reviewed, it was not always clear that students were assessed
in all four language domains (reading, writing, listening, and speaking). In our experience in
other districts, failing to test one or more domains results in under-identification of ELs.
The District had difficulty providing a clear accounting of the number of ELs enrolled in
its schools. By its own varying accounts, the District had between 38.6% and 46% of its total
student population identified as having some type of EL status in SY 2015-16. Even considering
that the District serves a highly mobile population and that many students enter and leave the
District throughout the school year, the District still appeared to have difficulty identifying the
total number of ELs in its system. Moreover, these reported percentages are likely lower than
the actual percentages given the District’s practice of not testing the ELP of registering students
with a primary home language other than English on their HLS forms over at least the past two
years, and possibly longer. Thus, to identify ELs missed by its prior HLS and testing practices,
the District will need to review the records of students enrolled in prior school years whose HLS
responses indicated a language other than English and who lack W-APT scores in all four
19

Westminster Pub. Sch., Student Enrollment Packet, available at
http://www.westminsterpublicschools.org/cms/lib03/CO01001133/Centricity/Domain/34/REG%20FORMS%2022015%20MRS%20PROTECTED%20NR%20%20ENG%20%20FILL-IN%20FIELDS.pdf (last visited Jan. 17,
2017).

7

 domains (except K students enrolled in the fall semester of K), and administer the gradeappropriate W-APT to these students in all four domains to see if they are EL. On our upcoming
call, we would like to discuss how the District can efficiently and promptly implement this step.
2. The District Has Not Provided EL Students With Adequate Language Services
The District must provide EL students with a language assistance program that is
educationally sound, adequately resourced, “reasonably calculated to enable students to attain
parity of participation in the standard instructional program within a reasonable length of time
after they enter the school system,” and proven successful. Castañeda, 648 F.2d at 1009-11.
Our site visits and review of data revealed that the type of language assistance services ELs
receive varies widely, depending on which school they attend, and that the majority of ELs in the
District do not receive adequate or appropriate ELD or SI services.
a. The District Fails to Provide ELD to Thousands of ELs and Provides
Inadequate Amounts to Many Others
As Castañeda explains, ELD is an expected part of an EL program that may be provided
concurrently with full access to the core curriculum, or intensively with sequential access to the
core curriculum provided the District takes action to help ELs recoup any content deficits within
a reasonable period of time. 648 F.2d at 1011-12. As noted above, the District reported to CDE
(and to the United States through produced reports) that it provides ELD services through a “coteaching model for beginner and intermediate (K-12) ELs” and “direct language services
provided by a CLD-endorsed Specialist” through “a daily 45-minute language block to all ELs.”
Despite these representations, the District’s data reveal that only a fraction of ELs receive
a 45-minute language block of ELD services. Indeed, based on data provided to us by the
District in its response to our January 2016 RFI (“Request A 1 v 1.0”), during SY 2014-15 and
2015-16, only 16.6% and 21.7% of Limited-English-Proficient ELs (LEPs) and 30% and 39.1%
of Non-English-Proficient ELs (NEPs), respectively, received ELD language blocks. CDE
instructs districts to classify less proficient ELs with composite scores of 1.0 to 3.0 on ACCESS
as NEPs and more proficient ELs with scores of 3.1 to 4.9 as LEPs.
Our interviews with administrators and teachers confirmed additional lapses in the
District’s provision of other critical components of its stated EL program to both LEPs and
NEPs. When ELs do receive ELD instruction, it is not always from a CLD Specialist, who
received training to provide ELD instruction by earning Colorado’s CLDE or LDE endorsement
or other state’s ESL certification or endorsement. As noted above, the District has implemented
an “Interventionist Framework” that employs a “Blended Services Model,” whereby the CLD
Specialists, Title I teachers, and special education teachers form a team of “interventionists” to
serve “focus students,” who are not making progress in the District’s competency-based
instruction and assessment system. These students are primarily ELs, SWDs, and other students
who are considered “at-risk.” The Interventionist Framework’s philosophy is that “Students are
grouped by academic needs, not necessarily by their identified categorical group.”20 According
20

Dr. Steve Sandoval, et al., The Interventionist Framework: A Guideline for Adams Cnty. Sch. Dist. 50, 3 (Jan. 20,
2016) (provided in response to the January 2016 RFI).

8

 to various administrators and teachers, the Interventionist Framework allows any
“interventionist” to provide ELD instruction to ELs, even if that person does not have a CLDE or
LDE endorsement. In other words, the District treats these teachers as interchangeable by using
Title I and special education teachers, rather than CLD Specialists, to serve some ELs.21
As a result, in the majority of District schools, across all age groups, ELs do not receive
direct ELD services from CLD Specialists with the CLDE or LDE endorsement, despite District
representations to CDE that a daily 45-minute ELD language block is guaranteed to all ELs.22
For example, during interviews at Westminster High School, we learned that approximately 500
of the 700 ELs do not receive any direct ELD services. Ranum Middle School reported that 121
ELs were not receiving ELD from a CLD Specialist. At F.M. Day Elementary School, 198 of
the 225 ELs, including those in the TBE program, did not receive direct ELD instruction. At
Westminster Elementary School, fewer than 50% of ELs receive direct service with the CLD
Specialist. During our fall visit, Fairview Elementary School reported that roughly 72% of its
ELs receive no ELD from a CLD Specialist.23 At these schools, some ELs who do not receive
ELD instruction from a CLD Specialist receive service from interventionists, such as special
education or Title I teachers, who do not have CLDE or LDE endorsements. Even though the
District reports 80-90% effective implementation of the Interventionist Framework and Blended
Services Model, our compliance review revealed that at many schools, ELs receive no
“interventionist” services. Indeed, during SY 2014-15, the District provided less than half of its
ELs with any one of these blended services (LEP=46.8%; NEP=40.8%), and similarly
underserved ELs the following year (LEP=45.7%; NEP=54.0%).24 This comports with a staff
member’s observation, on one of our site visits, that many of these ELs “slip through the cracks.”
When operating an EL program, districts typically differentiate the quantity of service
and method of delivery based on a student’s ELP level, with more ELD instruction and support
services provided for the least English proficient ELs.25 Because the aim of ELD is to develop
an EL’s oral, reading, and writing skills in English, districts normally group ELs for ELD
instruction at the same or comparable ELP levels.26
21

Interestingly, a principal and a teacher reported that District administrators have said that while special education
and Title I teachers can provide ELD to ELs, only special education teachers can provide special education services.
22
According to data submitted by the District, in SY 2014-15, only 17.1% of NEPs and 11.8% of LEPs received at
least 45 minutes of instruction with a CLD Specialist. In SY 2015-16, only 23.3% of NEPs and 15.2% of LEPs
received 45 minutes of ELD instruction per day. In the United States’ January 2016 RFI, we requested information
regarding how many ELs receive services from a CLD Specialist. In response, the District provided data that list
both CLD Specialists and general education or specials teachers who have the CLDE- or LDE-endorsement. This
includes physical education and homeroom/enrichment teachers, who are not likely using class time for ELD or
other language assistance services, as well as 15 teachers who are not listed on other submissions from the District
as having either endorsement. Nonetheless, even counting each unique record in this over-inclusive category, in SY
2014-15, only 34.1% of NEPs and 46.0% of LEPs are listed as having at least one class with a CLDE- or LDEendorsed teacher. In 2015-16, only 42.6% of NEPs and 44.6% of LEPs were scheduled for a class with a CLDE- or
LDE-endorsed teacher.
23
When we returned in May, we learned that the number of ELs receiving ELD from CLD Specialists had
improved, but that the school did not “have enough resources” to place each EL with a CLD Specialist.
24
These blended services are defined as either: a CLD/LDE teacher-led classes, Title 1, or special education
services. The analyses performed are based on data the District submitted in its RFI response entitled “Request A 1
v 1.0.”
25
See EL DCL at 13-14.
26
Id.

9

 Instead of using ACCESS scores to schedule ELs in appropriate levels of ELD with CLD
Specialists, many schools we visited used ELs’ CBS performance level and performance on
CBS-related assessments in literacy and math to drive their class scheduling. For example,
Tennyson Knolls Elementary School, Westminster Elementary School, Ranum Middle School,
and Scott Carpenter Middle School reported that some LEP students did not receive ELD
because they were at or above grade level on their CBS assessments. This apparent decision to
prioritize ELs’ CBS performance over their language needs is borne out by the data the District
produced. The likelihood that a LEP student will receive ELD diminishes as he or she reaches or
exceeds the CBS performance level commensurate with his or her traditional grade level. In SY
2014-15, 23.8% of LEPs who were below grade level on their CBS literacy performance level
received ELD, compared with 12.4% who were at grade level and 8.3% who were above grade
level. Each of these percentages is unacceptably low, as all ELs are entitled to ELD until they
achieve proficiency in English. In SY 2015-16, these numbers improved slightly but not
sufficiently: 34.6% of LEP students who were below grade level in literacy received ELD,
compared to 20.8% of LEP students who were at grade level and 9.1% of LEP students who
were above grade level.27 At Westminster Elementary School, the CLD Specialist provided
direct ELD to approximately 50 NEP and LEP students. Of the remaining ELs, NEP students
with low scores on the Dynamic Indicators of Basic Early Literacy Skills (DIBELS) were placed
with a special education teacher, while LEP students with low DIBELS scores were placed with
a Title I specialist. At Sunset Ridge Elementary School, Fairview Elementary School,
Sherrelwood Elementary School, Scott Carpenter Middle School, and Westminster High School,
ELs are grouped based on their CBS literacy levels and a “body of evidence,” which may include
their ACCESS scores.
In addition to prioritizing CBS-related assessments over ELP assessments, many schools
reported that they could not schedule all ELs with a CLD Specialist because the number of ELs
far exceeds the capacity of existing CLD Specialists. As a result, the majority of ELs with the
highest language and academic needs receive no ELD. In SY 2014-15, 76.2% of LEPs and
71.1% of NEPs who were below grade level in literacy did not receive ELD with a CLD
Specialist. In SY 2015-16, 65.4% of LEPs and 51.4% of NEPs who were below grade level in
literacy did not receive ELD.28 These statistics demonstrate that the District has failed to
implement its stated EL program for thousands of ELs, including many with the highest needs.
Beyond its aspiration in its improvement plan to CDE to provide 45 minutes of ELD per
day for all ELs, the District provides schools with no guidance on how much ELD ELs should
receive based on their ELP level. As a result, schools reported a wide variation in the amount of
ELD and other EL services students receive. Several schools failed to schedule their limited
numbers of CLD Specialists, or other CLDE- or LDE-endorsed teachers, efficiently to serve the
ELs who need access to them most. For example, our site visits and the District’s data revealed
that substantial numbers of students in monitoring year one (M1) and monitoring year two (M2),
who do not need designated ELD with a CLDE- or LDE-endorsed teacher, are scheduled in

27
28

This is based on data the District submitted in its RFI response entitled “Request A 1 v 1.0.”
This is based on data the District submitted in its RFI response entitled “Request A 1 v 1.0.”

10

 courses with these teachers, and some even in their ELD block classes.29 This inefficient
scheduling of the limited number of CLD-endorsed teachers further exacerbates the high
numbers of ELs who receive no ELD with CLD Specialists.30 District guidance to schools on
how to schedule ELD based on ACCESS scores and how to maximize the time CLD Specialists
instruct NEPs and LEPs could alleviate the issue. In addition, several schools reported that CLD
Specialists do not teach students on Fridays, which are instead reserved for testing, meetings, and
data review. Thus, even when ELs received ELD, many did not receive this instruction on a
daily basis and received fewer than 45 minutes of instruction. Our review revealed that at only
one school in the District – Shaw Heights Middle School, which we visited in October 2015 and
May 2016 – do all ELs actually receive the 45-minute language block described in the District’s
improvement plan. This school assigns all ELs, based on their ELP scores, to at least one of
seven sections where they receive daily ELD instruction.
The District reported that since approximately SY 2008-09, the District and its schools
have not tracked ELD service minutes. Further, the District lacks school-based EL case
managers who might facilitate scheduling and ensure that ELs are receiving the appropriate
amount of services according to their proficiency levels. Therefore, there is no District- or
school-level backstop to guarantee that ELs receive language assistance consistent with federal
law. On our upcoming call, we would like to discuss how to replicate Shaw Heights Middle
School’s success district-wide and identify timely and accurate school-based tracking of ELD
time with centralized oversight.
b. Newcomers and Students with Interrupted Formal Education Lack
Adequate Language Services
Many schools that we visited reported that they have ELs at the newcomer level who may
be unprepared to participate in CBS and progress within the CBS levels. Yet the District offers
no written guidance for working with these students, leaving each school to design its own
approach. Schools use varying definitions of newcomers – some schools identify any student
who has been in the United States for less than a year as a newcomer; other schools use two
years as the benchmark. Likewise, EL service delivery for these students varies. For example, at
Sherrelwood Elementary School, one CLD Specialist stopped pushing into one teacher’s class in
order to pull out newcomer students from three classes. At Tennyson Knolls Elementary School,
only some of the newcomer students are pulled out of class for ELD instruction with a CLD
Specialist. At Scott Carpenter Middle School, one CLD Specialist teaches a class for newcomer
students in grades six through eight. Westminster High offers “Concepts” classes for students
who have not demonstrated proficiency on pre-ninth grade learning targets to some newcomers
and NEP students. However, in SY 2015-16, some newcomer students were not placed in
“Concepts” classes in part because the classes were at capacity, yet also included native English
speakers who were not performing at grade level. Placing newcomers or other ELs with low
29

For example, according to the District’s data, in SY 2015-16, 24 M1, 20 M1, and 3 Exited students received the
45-minute ELD language block even though only 23.3% of NEPs and 15.2% of LEPs received this ELD block. In
that same year, the District reported 144 M1, 143 M2, and 160 Exited students in courses with CLDE- or LDEendorsed teachers even though less than half of LEP and NEP students were enrolled in such courses. In October
2015, Westminster High School reported that 257 M1s and M2s receive ELD even though 500 ELs did not.
30
At Ranum Middle and Westminster High, some ELs were not scheduled with CLD Specialists in order to attend
Orchestra and other electives.

11

 ELP levels in these “Concepts” classes based on their low performance on skills tests given in
English also can impede on-time graduation because these classes earn only 0.5 credits towards
graduation while grade 9-12 classes earn a full credit.
The District has no policy regarding identifying or serving EL students with interrupted
formal education (SIFE), despite interviews confirming that many schools enroll SIFE students.
Many of these students urgently need intensive language development with instructors qualified
to provide this service. But with no guidance on how to serve these students, who may not fall
within a particular school’s definition of a newcomer, schools remain ill-equipped to address
these students’ needs.
c. EL Students With Disabilities (EL SWDs) Lack Adequate Language Services
Once properly identified, a school district must provide both special education and
language assistance services to students who are eligible for both services, and the individualized
education program (IEP) team must consider the language needs of the EL as those needs relate
to the development of the IEP. See 20 U.S.C. § 1703(f); 20 U.S.C. § 1414(d)(3)(B)(ii); 34
C.F.R. § 300.324(a)(2)(ii). Under the District’s Interventionist Framework, many EL SWDs are
denied language assistance services altogether. Although District-level administrators asserted
that it is not their policy to provide special education but not language services, teachers and
administrators at various schools told us that special education “trumps” language assistance.
Therefore, it is the practice to place EL SWDs with special education teachers and not CLD
Specialists. In fact, many schools reported that EL SWDs never receive ELD from CLD
Specialists, despite District-level assertions to the contrary. As a result, EL SWDs do not receive
the language services to which they are entitled under federal law.
To the extent the District asserts that these students receive adequate language assistance
through special education teachers who took the District’s SI training, we and Dr. Short saw very
little evidence of SI strategies (SIOP or otherwise) in classroom observations, with nowhere near
the frequency or fidelity necessary to promote ELs’ English language development and provide
ELs with meaningful access to their grade-appropriate curricula, as discussed in Section 4.a
below. And as noted in Section 2 above, the District also provides inconsistent guidance and
fails to monitor how much language assistance services ELs, including EL SWDs, receive to
ensure that all ELs are served and those with the highest need receive the most services.
d. The District’s Co-Teaching Model is Not Implemented With Fidelity
The District also asserts that ELs receive language assistance from general education
teachers and interventionists who co-teach classes. As discussed above, under the Interventionist
Framework there is no guarantee that the interventionist co-teacher is a CLD Specialist with a
CLDE or LDE endorsement. Likewise, the co-teaching we observed almost always involved the
CLD Specialist primarily acting as an instructional aide to the general education teacher, rather
than an equal teacher who helps lead class instruction. The CLD Specialists we saw who were
“co-teaching” or “pushing in” mostly worked one-on-one with ELs (e.g., helping them with
lesson assignments) and did not provide ELD instruction to all the ELs or even groups of ELs in
the class, except in guided reading groups. The dearth of actual ELD instruction that is provided
12

 by CLD Specialists in co-taught classes likely reflects how few of them have common planning
time with their co-teachers. For example, the sole CLD Specialist at F.M. Day Elementary at the
end of SY 2015-16 had no common planning time with the nine teachers with whom she cotaught. Common planning time is needed to incorporate explicit language development in lesson
plans. Further, because the District does not have an ELD scope and sequence or curriculum
(see Section 5 below), it is unclear what specific language development ELs are receiving in
classes co-taught or individually taught by CLD Specialists.
e. Sheltered Instruction (SI) Strategies are Employed Inconsistently, If at All
The District represents that ELs also receive language assistance through their general
education teachers who employ SI strategies in general education classes. As discussed further
in Section 3.b below, all teachers who are new to the District (except teachers at Colorado STEM
Academy) are required to complete the District’s 30-hour training program, which aims to teach
SI strategies. Administrators and teachers reported that teachers employ the SI strategies with
varying frequency and degrees, and that the District does not provide principals with guidance or
training on how to observe, give feedback on, or evaluate SI strategies. As with ELD, the
District provides no guidance or monitoring regarding the amount of SI services that ELs should
receive to ensure they can access the content in their math, science, and social studies classes.
3. The District Does Not Adequately Staff and Support its EL Program
School districts must provide the personnel and resources necessary to implement an
effective EL program. A school district must sufficiently staff and support the language
assistance programs for ELs. Castañeda, 648 F.2d at 1012-13. At a minimum, every school
district is responsible for ensuring that there is an adequate number of teachers to instruct ELs
and that these teachers have mastered the skills necessary to effectively teach in the district’s
program for ELs. Id. at 1013 (“qualified teachers are a critical component of the success of a
language remediation program”). To implement an EL program effectively, there must be a
meaningful evaluation of whether the teachers who deliver the program are qualified to do so.
Id. This includes ensuring that those tasked with evaluating the instruction of EL program
teachers, such as principals, are qualified to do so. See Rios, 480 F. Supp. at 18, 23-24.
a. The District Lacks Sufficient Staff to Implement its EL Program
The number of dedicated CLD Specialist positions in the District is nowhere near
sufficient to serve its large population of ELs. According to District data provided for SY 201415, there were a total of 37 full-time-equivalent CLD Specialist positions in the District for 3,962
identified ELs. This is a student-to-teacher ratio of 107 to 1. The vast majority of schools in the
District had student-to-teacher ratios of more than 100 ELs for every CLD Specialist position.
Our May 2016 interviews with teachers and principals at several schools, including Westminster
High, Westminster Elementary, Tennyson Knolls Elementary, Fairview Elementary and F.M.
Day Elementary Schools, underscored the detrimental effects of these staffing patterns. Teachers
and principals repeatedly told us that more CLD Specialists were needed to serve all ELs and to
provide them with at least one period of ELD per day. At many schools, CLD Specialists said

13

 they are unable to keep track of all ELs due to the sheer numbers of students, much less provide
daily ELD instruction to all of their ELs.
The District provided SY 2014-15 and SY 2015-16 data regarding the number of LEP
and NEP students enrolled in a “course taught by CLD/LDE endorsed teachers.” Because the
District identified a number of teachers who were CLDE-endorsed but not in a CLD Specialist
position, it is unclear whether many of the courses were even providing ELD instruction, and we
are certain that some were not (e.g., those taught by physical education teachers).31 Even with
this broad definition, our analysis of the SY 2015-16 data showed that less than half of LEP and
NEP students were being taught at any point by any teacher with a CLDE or LDE endorsement.
In SY 2015-16, among elementary schools, for example, Flynn, F.M. Day, Hodgkins, Mesa,
Metz, Sherrelwood, Skyline Vista, Sunset Ridge, and Tennyson Knolls all had less than half of
their LEP and NEP students enrolled in any class led by a CLDE- or LDE-endorsed teacher.32
The allocation of CLD Specialist positions to each school is decided at the district level.
Hiring of CLD Specialists is also handled at the district level, with some input from school
principals. As noted above, the District requires a CLDE or LDE endorsement for CLD
Specialist positions. For general teacher hiring, however, administrators said that while they
considered CLDE endorsements a plus-factor, they did not view such endorsements as required
or as the most important factor in teacher hiring. For example, during our October 2015 visit, the
principal at F.M. Day Elementary stated during an interview that the only requirement for hiring
a teacher for a transitional bilingual class is that the teacher is bilingual; Colorado’s bilingual
CLDE endorsement or a bilingual education degree, while preferred, is not required.33 The steep
learning curve of CBS, which requires a particular commitment and set of skills that is unique to
the District, may be an additional barrier to hiring and retaining enough CLD Specialists to serve
the District’s ELs. Thus, the shortage of qualified CLD Specialists in the District stems at least
in part from the District’s failure to prioritize ELD, despite having identified 46% of its students
as EL.
Many District interviewees stated that literacy coaches provide equivalent instruction to
that of a CLD Specialist. However, at the time of one of our site visits, out of 44 Title I teachers,
fewer than three were CLDE- or equivalent endorsed.
We are also concerned about the high turnover of CLD Specialists. Many schools we
visited had lost CLDE-endorsed staff during the school year, or had to shuffle staff in an effort to
meet needs. F.M. Day Elementary had two CLD Specialists leave after SY 2015-16, one fulltime and one part-time. In addition, the school was allocated .5 fewer CLD Specialist positions
for SY 2016-17. At Tennyson Knolls Elementary, all three of the CLD Specialists left between
SY 2015-16 and SY 2016-17.34 At the time of our site visit in October 2015, Westminster High
School had replaced a CLDE-endorsed teacher who left with a long-term substitute who did not
31

See supra note 22.
This is based on data the District submitted in its RFI response entitled “Request A 1 v 1.0.”
33
When we returned in May 2016, F.M. Day Elementary School had a new principal who reported that he intended
to ask the District to require that teachers in the Transitional Native Language Instruction program have the CLDE
endorsement. Teachers of bilingual instruction should have the State’s bilingual CLDE or LDE endorsement. See
Castañeda, 648 F.2d at 1012-13.
34
One CLD Specialist was full time while the other two shared one full time position.
32

14

 have a CLDE endorsement. The long-term substitute was still in place at the time of our May
2016 site visit.
At the district level, the CLD Director left the District in the fall of 2015, and has not
been replaced. Currently, there are two CLD coordinators who are responsible for the
elementary and secondary levels, respectively. These coordinators plan and deliver teacher
trainings, conduct technical assistance, and evaluate EL instruction district-wide. The CLD
coordinators are not responsible for the overall staffing of the District’s EL program.
Short-staffing and high turnover negatively impacts the District schools’ ability to
provide all ELs with the ELD they need. Some schools employed a co-teaching model, but there
was no guarantee that the courses would be taught by a CLDE-endorsed teacher. District
administrators stated that CLD Specialists should be able to support other interventionists and
core content teachers through formal and informal professional development. Based on our
classroom observations discussed further below, we did not observe much evidence of ELD
strategies or differentiated instruction for ELs in general education classrooms. Site visits also
demonstrated that teachers were unable to effectively co-plan because of the wide range of
classes served by a single CLD Specialist. With overall CLD Specialist staffing at a clearly
inadequate level and all teachers expected to employ SI strategies, the co-teaching we observed
does not appear to be an efficient use of the District’s staff or an effective way for the District to
provide ELs with ELD.
Finally, the lack of staff does not permit CLD Specialists in most schools to provide
content support in areas other than literacy/English Language Arts. No elementary or middle
schools had CLD Specialists who were also certified to teach content in science or social studies.
Some District administrators we interviewed defended the District’s current staffing
levels. They would prefer not to identify a minimum number of CLD Specialist positions based
on the number of ELs to avoid “siloing” student services. They stated that all teachers should be
and are able to serve all students, and that focusing on credentialing and formal training reflected
a misunderstanding of the District’s CBS model. Some of these administrators also pointed out
that all District teachers receive SI training to serve ELs. This is not the case, however. For
example, in SY 2015-16, 25% of the teachers at Westminster High had not completed the SI
training by mid-May, just one week before the end of the school year.
Further, Dr. Short, who co-created the SIOP methodology, noted in her classroom
observations that CLDE-endorsed teachers in the District were more likely to employ SI and
ELD teaching methods beneficial to ELs than teachers who did not have the endorsement. Dr.
Short conducted observations of 35 teachers (over two site visits) for nine traits of effective EL
teaching in her classroom evaluations.35 These traits are beneficial for the learning of all
students, but are particularly important to ELs who are still developing academic English skills.
35

These nine traits included: (1) written content objectives and/or learning targets that connect to the lesson on the
board; (2) written language objectives that connect to the lesson on the board; (3) vocabulary development or
background-building activities; (4) instruction using comprehensible input during the lesson; (5) planned oral
interaction among students; (6) structured group work; (7) instruction promoting higher-order thinking skills or
explicit learning strategies; (8) literacy activities; and (9) use of ESL supports.

15

 For example, the SIOP approach of writing content and language objectives on the board is
consistent with the use of learning targets in CBS and the District’s own educational philosophy.
Yet, our classroom observations found that more than 40% of the teachers observed did not use
this SI strategy. Of the eight teachers Dr. Short observed who incorporated at least six of the
nine effective teaching traits, six were CLD Specialists or had a CLDE or LDE endorsement, and
one was in the process of obtaining the endorsement. Of the 20 teachers who incorporated only
one to three of the effective teaching traits, more than half were not CLDE- or LDE-endorsed.
b. The District Does Not Provide its Teachers With Sufficient Training to
Implement its EL Program
Adequately and appropriately trained teachers and staff are critical to a district’s ability to
serve ELs and deliver its chosen EL program effectively. See Castañeda, 648 F.2d at 1012-13.
Districts that provide EL teacher training must evaluate whether their training adequately
prepares teachers to implement the EL program effectively. Id.
The District has a 30-hour SI training for all new teachers. This training includes only
ten hours of in-person training on ELs and SIOP strategies. Teachers are required to complete an
additional 20 hours of self-study (including reflections), class observations, and lesson planning.
While we strongly support professional development that combines in-seat training with on-site
follow-up activities like planning and delivering lessons with class observations, ten hours of
training is insufficient to impart enough effective SIOP or other strategies for teachers
responsible for teaching ELs their core subjects. To the extent many ELs receive instruction
only from SI-trained teachers, not CLD Specialists, this level of language services is inadequate.
Even if all core content teachers of ELs completed the SI training early in the school year, the SI
training falls far short of the training required for a CLDE or LDE endorsement. It does not
qualify the teacher to provide explicit ELD in all four domains, but instead imparts some
sheltering techniques to use in content classes.
We observed one of the in-person training sessions, which covered the stages of second
language acquisition, recognizing student assets, WIDA proficiency levels, and the WIDA Can
Do strategy descriptions. Although the content was appropriate and relevant to the teachers,
there were very few demonstrated ELD or SI techniques that the teachers could apply in their
classrooms, and job-embedded coaching did not appear to be a part of the SI training.36 Indeed,
Dr. Short found little to no evidence of SIOP or other SI techniques during visits to nine schools
and 35 classrooms in May and October 2016. She concluded that “very few” of the lessons had
strong language development activities, and less than one quarter of the lessons had language
objectives. One quarter had student-to-student interaction on content topics promoting language
development. With the exception of one classroom, where PowerPoint presentations were
observed, we saw few examples of students using elaborated speech (i.e., a series of complete
sentences) in a speaking activity. Many classrooms appeared to have very little direct instruction
occurring altogether, with students completing individual work on either Chromebooks or

36

Coaching is not mentioned in the SY 2016-17 descriptions of the SI training that the District provided in response
to our October 2016 RFI.

16

 worksheets. Dr. Short’s observation in this regard was also reflected in the recent AdvancEd
Report of the District conducted in April 2016.37
Further, the District has no ongoing SI training requirements for general education
teachers beyond their first year in the District. One administrator stated that although the inperson SI trainings occur every year and are technically open to all teachers, current teachers are
unlikely to attend, because it is not mandated that they do so.
There is some ongoing training for CLD Specialists. In SY 2015-16 school year, CLD
Specialists met once per month as a group for a full-day training that they were expected to bring
back to their schools and share with other staff. It is unclear how consistently CLD Specialists
conducted these school-level trainings with general education teachers. As noted above, ELspecific teaching strategies were not widely reflected in classroom observations. Some schools
participated in a LADDERS grant that provided additional professional development.
Of particular concern was the absence of training for CLD Specialists and other
interventionists on the Blended Services Model until this school year, and the brevity of the new
training. This recent training was described as a 30-minute PowerPoint presentation during
teacher induction. In addition, the District does not offer or require any teacher training for
working with EL SWDs, even though it has a very large number of these students. In 2015, the
District reported having 496 EL SWDs, comprising 43.8% of its 1133 total SWDs.38
During our first site visit, we learned of a program offered by local colleges that allows
teachers in the District to obtain CLDE endorsements. Administrators at various schools
mentioned that a number of general education teachers were enrolled in these programs. On our
later visit, however, interviewed teachers and administrators were not aware of these programs.
The District does not require its administrators to attend the in-person trainings that are
part of the 30-hour SI training, nor does it require any other specific training relating to ELs for
incoming administrators. Consequently, teachers attend the SI training only to be evaluated by
administrators, most of whom have not been trained on what EL teaching strategies to look for.
Principals do not receive other guidance or training from the District on how to observe, give
feedback on, or evaluate instruction in an ELD, sheltered, or co-taught class. As a result, school
principals had uneven training and knowledge regarding serving ELs. Some had no formal
training on instructing ELs and did not report prioritizing or even knowing how to recognize
educational strategies specific to ELs. A few principals had developed their own walkthrough
tools for SI strategies or had completed training regarding instructing ELs in other school
districts. The level of emphasis on meeting the specific needs of ELs varied depending on the
emphasis placed on such instruction by the building administration. An additional impediment
to properly evaluating teachers of ELs mentioned by some in the District is that the teacher
assessment tool in current use does not contain any skills specific to EL education.

37

AdvancED, Report of the External Review Team for Westminster Public Schools, 15-16 (Sept. 2016) (provided in
response to the October 2016 RFI).
38
See District’s Addendum 1.A Title III Export (provided in response to the May 2015 RFI).

17

 4. The District Does Not Provide ELs With Sufficient Access to All Curricular and
Specialized Programs
The District’s current implementation of CBS fails to provide many ELs with equal
access to at least part of their grade-level curriculum; its data show that many ELs do not catch
up and attain parity of participation in the grade-appropriate standard educational program within
a reasonable period of time. See Castañeda, 648 F.2d at 1010-11. The District also denies ELs
an equal opportunity to participate in its specialized program at the Colorado STEM Academy.
a. Many ELs Are Denied Access to Part of Their Grade-Level Curriculum and
Do Not Achieve Parity of Participation in the Standard Education Program
ELs must have an opportunity to participate equally and meaningfully in school districts’
instructional programs. To do so, ELs must acquire English proficiency and recoup any
academic deficits that they may incur in other areas of the curriculum as a result of spending
time in ELD classes. Castañeda, 648 F.2d at 1011. Therefore, school districts must provide ELs
with assistance in other areas of the curriculum where their equal participation may be impaired
by academic deficits incurred while enrolled in the EL program classes. Id. This obligation
requires school districts to design and implement EL programs that are reasonably calculated to
enable ELs to attain both English proficiency and “parity of participation in the standard
instructional program within a reasonable length of time after they enter the school system.” Id.
Under the rationale of Castañeda, the “interim sacrifice of learning in other areas” is justified
when ELs receive intensive ELD, provided the district enables ELs to recoup academic deficits
within a reasonable time. Id.
When school districts try new educational approaches, they must ensure that ELs receive
language assistance services and have equal access to grade-level curricula. The District’s
current implementation of CBS assessment and placement procedures deny many ELs access to
part of their grade-level core content on the basis of their limited English proficiency and leave
too many unable to catch up to their never-EL peers within a reasonable period of time.
Moreover, this denial is not due to ELs spending time in intensive ELD classes; many ELs
receive no ELD at all. See supra Section 2.a. While many administrators and teachers expressed
pride in the CBS model during our site visits, many also expressed concern for how ELs fare
within that model.
Under CBS, the District uses a variety of assessments, the vast majority of which are
available only in English, to place students at subject-specific performance levels, rather than
traditional grade levels that correlate with students’ ages. These assessments include DIBELS
and Scantron for literacy and math, and those scores then dictate placement in literacy and math
classes grouped by CBS performance levels. In response to our January 2016 RFI, the District
provided us with a document prepared for AdvancED that includes guidance about not placing
ELs in CBS-leveled courses based solely on Scantron tests beginning in SY 2015-16. This
guidance directs schools to use a body of evidence, which “may” include ACCESS scores, to
place ELs in courses.39 However, our site visits revealed that this rarely happens in practice. All
but a few schools reported placing ELs according to their Scantron and DIBELS assessments,
39

Westminster Pub. Sch., AdvancED Executive Summary, 9-10 (Mar. 2016).

18

 just like never-ELs. Therefore, further guidance and training on how to place ELs in CBS
courses so that they do not remain without access to their grade-level curricula for years is
needed.
Students’ math scores may also dictate their access to grade-level science and social
studies, but the practice varies across schools. At Fairview Elementary School, students in
performance levels K-2 are placed in science and social studies based on their math scores, while
students in performance levels 3-5 are placed consistent with their traditional grade level based
on age. At Tennyson Knolls Elementary School, science is taught within the math block and
social studies with the literacy block, which are grouped by CBS performance levels dictated by
scores on the math and literacy tests, respectively.
The only tests available in a language other than English are the Scantron math
assessment, which the District began to use in SY 2015-16, and the Spanish DIBELS
assessment, which F.M. Day uses for students in its TBE program. However, schools offered the
Scantron math test in Spanish inconsistently. Some schools tested in Spanish when a student had
been in the United States for less than a year, others required parents or guardians to request the
assessment in Spanish, and still others gave the test based on teachers’ knowledge of a particular
student’s ELP. Colorado STEM Academy reported not using assessments in any language other
than English. Because the test is not available in other languages, non-Spanish-speaking ELs are
assessed exclusively in English. Other than administering the Scantron math assessment in
Spanish sporadically, schools reported providing little to no testing accommodations for ELs.40
The Castañeda court recognized that “tests . . . administered in English . . . cannot, of course, be
expected to accurately assess the ‘ability’ of a student who has limited English language skills . .
. .” 648 F. 2d at 998. Instead, the Court expected that “Spanish language ability tests would be
employed to place students who have not yet mastered the English language satisfactorily in
ability groups.” Id. at 1014. The District’s reliance on primarily English-only assessments to
place students at CBS performance levels, which often do not align with the student’s gradeappropriate curriculum, complicates the District’s obligation to ensure that its EL program
enables ELs to attain parity of participation in the standard program within a reasonable period
of time.41
To move to the next performance level, students must demonstrate proficiency on all
learning targets through DIBELS and Scantron tests and a “body of evidence,” which includes
class work. Across schools, administrators and teachers reported that many classes contain
students in two or more performance levels who have demonstrated proficiency in varying
learning targets. In its AdvancED summary, the District acknowledged that by its nature, CBS
results in many students placed on performance levels that are inconsistent with students’
traditional grade: “[M]ultiage classrooms are the norm,” because “progression can occur at any

40

Scott Carpenter Middle reported that ELs may be given extra time to take tests, may take them in smaller settings,
and may present the information orally. These accommodations are available to all students, however, and not just
ELs.
41
Several schools reported that they monitor student progress in the assigned performance levels and move students
who are not assigned to the appropriate level.

19

 point during the course of the year for any content area and is independent of grade level,
semesters, or any other traditional assessment milestone.”42
The data submitted for our review demonstrate that ELs are more likely than never-ELs43
to be placed in courses below grade level in the CBS model. For example, in SY 2014-15, 80%
of NEPs and 68% of LEPs, were below their grade level in the CBS literacy course compared
with 56% of their never-EL peers. In the following school year there were slight improvements
with 62% of NEPs, 59% of LEPs, and 41% of never-ELs who were below their grade levels in
the CBS literacy course.44 Even though there were improvements in the overall proportions of
students who were below their grade level in the CBS literacy courses, EL students were still
comparatively less likely to be at grade level compared to their never-EL peers in SY 2015-16.
NEPs were 44% less likely to be at grade level in their CBS literacy course in SY 2014-15
compared to their never-EL peers, and this increased to 51% in SY 2015-16. LEPs were 21%
less likely to be at grade level in their CBS literacy course in SY 2014-15 compared to their
never-EL peers, and this increased to 43% in the following school year. That NEPs and most
LEPs who are still learning English would score lower on a literacy test in English than their
never-EL peers is to be expected. However, the District’s practice of conditioning access to the
grade-appropriate curricula based on these literacy scores has denied much larger percentages of
ELs (60% of all ELs vs. 41% of never-ELs in SY 2015-16) this access based on their language
barriers and has disproportionately placed them below grade level relative to never-ELs.45
Schools that used the CBS literacy or math scores to place students in science and social studies
further denied ELs access to their grade-level curricula based on language barriers.
These differences in placement below grade level cannot be explained by NEP or LEPs
who have only recently enrolled. Indeed, in SY 2015-16, 74% of LEPs who were below grade
level in their CBS literacy course had been enrolled in the District for three or more years. In
comparison, only 57% of never-EL students who were below grade level had been enrolled in
the District for three or more years. This means that large proportions of LEP students are below
their grade level and have been enrolled in the District for a substantial amount of time, signaling
that these students do not catch up to their never-EL peers. We were very concerned to see in the
District’s data that 559 LEP students enrolled in the District for five to 12 years were below
grade level in their CBS literacy course in SY 2015-16. Of the 554 “Long-term” LEPs who were
enrolled in the District for six years or more, 75% (416) were below grade level in literacy.
These and other data discussed below, including in Section 8, indicate that many ELs who
remain in the District over time are not catching up academically.
42

Westminster Pub. Sch., AdvancED Executive Summary, 6 (March 2016).
The District uses the term “Non-ELs” in the data it produced in response to our request to break out the data by
LEP, NEP, former ELs (M1, M2, Exited), and never-ELs. See Excel file A 1 v 0.1. We thus take “non-EL” to mean
“never-EL”; thus references to “never-ELs” refer to the District’s “non-EL” data.
44
These figures were calculated using data in the spreadsheet “Request A 1 v 0.1” provided by the District in
response to the January 2016 RFI. In the RFI instructions, we asked the District to provide each student’s “current
CBS performance level for each applicable subject” for SY 2015-16, “CBS performance level for each applicable
subject as of the beginning of the year for SY 2014-15; and “traditional grade level.” See January 2016 RFI. We
then compared the students’ CBS performance level with their age-appropriate, traditional grade level to determine
whether the student was below, at, or above grade level for these SYs.
45
Of the 2,649 ELs (1,870 LEP + 779 NEP) in SY 2015-16 in the District’s spreadsheet “Request A 1 v 0.1,” 1,589
(1,103 LEP and 486 NEP) were below grade level (60%), while 1,360 of the 3,292 never-ELs were below grade
level in the CBS literacy course (41%).
43

20

 The District’s failure to ensure that ELs are able to timely recoup academic deficits is
also reflected in the District’s four-year graduation rates. The District reported that at
Westminster High, 339 of 689 LEPs, or 60%, were not on track to graduate within four years.
Students in monitoring years one or two fared slightly better, but only 39% were on track to
graduate within four years. At Hidden Lake High, 92% or 56 of 61 NEPs, LEPs, M1, and M2
students were not on track to graduate within four years.46
Accordingly, the District’s data show that it has yet to meet its obligation to design an EL
program that is “reasonably calculated to enable [EL] students to attain parity of participation in
the standard instructional program within a reasonable length of time after they enter the school
system.” Castañeda, 648 F.2d at 1011. On our upcoming call, we would like to discuss ways of
ensuring that ELs receive equal access to their grade-level curricula within the CBS model.
b. ELs Lack An Equal Opportunity to Participate in Colorado STEM Academy
School districts must provide ELs with equal opportunities to meaningfully participate in
all programs, including specialized programs. See 34 C.F.R. § 100.1-2; 20 U.S.C. § 1703(f).
Since 2013, the District has operated Colorado STEM Academy, a K-8 school that
specializes in science, technology, engineering, and mathematics. Colorado STEM Academy
admits students through an application process, which includes a general testing requirement, a
teacher recommendation, and a writing sample for all students except kindergarteners. During
our October 2015 site visit, the website, application, and marketing materials were available in
English only. Since that time, the school has placed a Spanish language application on its
website. However, the website itself is still in English with no Spanish translation options.
Accordingly, although the school reports accepting most students who apply, ELs and LEP
parents do not have the information necessary to access this opportunity. Indeed, during SY
2015-16, Colorado STEM Academy had the lowest percentage of ELs in the District. Of 238
students enrolled in October 2015, there were one NEP, 16 LEP, two M1, and ten M2 students.
Thus, while the rest of the District was approximately 46% ELs, only 12% of students at
Colorado STEM Academy were ELs. These data show that the District needs to take steps to
provide ELs and LEP parents with a meaningful opportunity to apply for and participate in this
desirable program.
Moreover, ELs admitted to Colorado STEM Academy did not receive language
assistance services to allow them to participate meaningfully in the program. When we visited in
October 2015, the school had no CLD Specialist. Although the school reported that all teachers
should provide SI in their classrooms, not all teachers had completed the District’s SI training
and were not required to do so because the school is a magnet choice school. Further,
administrators did not conduct walk-throughs to assess whether teachers were using SI strategies
in class.

46

This is based on data the District submitted in its September 2015 RFI response entitled “150922 Request B –
Addendum 10 – 2015-16 ELs and Former ELs Not Expected to Graduate in 4 Years.”

21

 In SY 2016-17, Westminster Elementary School converted to a magnet choice school
called Westminster Academy for International Studies. We have similar concerns about access,
inclusion, and services for ELs at this school. On site in October 2016, we learned that students
who cannot meet certain admission criteria in literacy and math were not expected to be
admitted. An administrator noted that NEPs may be excluded under these criteria. Though the
website for the Westminster Academy for International Studies provides an application in
Spanish, the opt-in model and testing requirements may lead ELs to be underrepresented at this
second magnet choice school as well.
5. The District Lacks Any Curriculum for its ELD or Content Classes for ELs
Appropriate ELD materials and curricula are also necessary to ensure ELs have
meaningful access to the District’s educational programs. Based on our observations and
evaluation, the District lacks an ELD curriculum scope and sequence, and ELD materials that
could provide a scope and sequence. No school we visited had a complete or comprehensive
classroom set of ELD materials. A number of CLD Specialists described difficulty in finding
materials to teach ELs, and CLD Specialists were also unsure of how such materials might be
requested or obtained. For example, Tennyson Knolls Elementary had outdated and incomplete
versions of an ELD series. At Shaw Heights Middle School, a CLD Specialist described using a
children’s magazine not designed for ELs and searching in similar publications and books for
material that could be utilized to assist in ELD instruction because of the absence of dedicated
ELD materials. These reports regarding the shortage of ELD materials were confirmed during
classroom observations, where we did not see many materials specifically designed for ELs in
the classrooms or in use in the lessons we observed. For example, only F.M. Day Elementary
(the school with a TBE program offered to K-2nd grade students) had bilingual materials,
including dictionaries. Additionally, while most schools we visited had tablets, laptops, or
Chromebooks for students to use, the software and computer programs we observed during
classroom visits were not differentiated for ELs.
Though the District represents that all ELs receive SI in their core content classes, the
District lacked SI curriculum for any content area. Although a few schools had classes geared
toward newcomer students, as described above, there is no formal or standardized curriculum for
these classes. The lack of any formal curricula for ELD or SI instruction and insufficient ELD
materials are additional barriers to the effective implementation of the District’s EL program.
6. The District Does Not Adequately Monitor the Academic Progress of Exited ELs
School districts must also monitor the progress of students who have exited the language
assistance program for at least two years to ensure that: (1) the students have not been
prematurely exited; (2) any academic deficits they incurred as a result of participation in the
program have been remedied; and (3) they are meaningfully participating in the standard
instructional program comparable to their never-EL peers. See EL DCL at 34 (citing 20 U.S.C.
§ 6841(a)(4); 34 C.F.R. § 200.20(f)(2)).
The District does not consistently or meaningfully monitor ELs who have exited the
language assistance program. According to our interviews, the District redesignates ELs as M1
22

 once they have scored a 5.0 or above ACCESS composite score. This redesignation is done at
the District level. The District then contacts the schools for a report on whether M1 students are
continuing to perform well academically. According to District-level administrators, however,
many schools do not respond and those that do provide limited feedback. Certainly, this is due
in part to the lack of an adequate number of CLD Specialists in the District and because under
the current model, CLD Specialists are not familiar with all ELs given that they do not all receive
services from CLD Specialists. After a year as M1 students, students then “automatically roll
over to M2 status.” In another year, M2 students are reclassified as former ELs. Therefore, by
its own admission, the District does not adequately monitor the academic progress of M1 and M2
students to ensure that they do not need language assistance and have recouped any academic
deficits, nor does it provide additional language assistance services to those students who have
persistent language barriers.
District-level administrators reported that no student should be in M2 status for more than
a year. During our first site visit, however, administrators at Scott Carpenter Middle School
explained that M2 students were also required to demonstrate proficiency on state assessments.
Regardless of their CBS-based performance levels, all students must take the state assessment
according to their age-appropriate grade level. Accordingly, at least at Scott Carpenter Middle
School, students who do not receive access to grade level content may be further disadvantaged
in meeting exit criteria for the EL program. Indeed, in October 2015, Scott Carpenter Middle
School reported there were eight M1 students and 59 M2 students. Despite raising these
concerns during our October 2015 visit, when we returned to the school in May 2016, nothing
had been done to address them. On our upcoming call, please be prepared to discuss how the
District plans to ensure that all schools monitor their M1 and M2 students to see if they need
language or academic remediation services.
7. The District Fails to Adequately Evaluate and Monitor the Effectiveness of its EL
Program
The third prong of the Castañeda test asks whether a school district has evaluated the
effectiveness of its language assistance program to ensure that its ELs acquire English
proficiency and that the program was reasonably calculated to allow ELs to attain parity of
participation in the standard instruction program within a reasonable period of time. 648 F.2d at
1011. In assessing the success of the program, districts must consider accurate data that permit a
comprehensive and reliable comparison of how ELs, former ELs, and never-ELs are performing
on criteria relevant to participation in the district’s educational programs over time. See id. at
1011, 1014. The appropriate comparisons are how current ELs and former ELs perform relative
to never-ELs over time so that districts can assess whether ELs are incurring academic deficits
while learning English and whether former ELs are attaining English proficiency and performing
comparably to their never-EL peers in the standard program within a reasonable period of time.47
Meaningful evaluations include longitudinal data that compare EL, former EL, and never-EL
performance in the core content areas and grade-to-grade monitoring of student progress. Such
evaluations enable districts to assess whether the EL program is causing academic content area

47

See EL DCL at 13 n.38, 35-37 (discussing the case law about the need for longitudinal data and how current ELs
are not expected to perform equally to never-ELs but former ELs should perform comparably).

23

 deficits that require remediation and whether ELs are on track to graduate and have comparable
opportunities to their never-EL peers to become college- and career-ready.48
Based on the data provided and our site visits, the District has not adequately evaluated
its EL programs at any level – district, school, or grade. To assess if ELs are overcoming their
language barriers within a reasonable period of time, districts must monitor their progress
longitudinally with respect to both their ELP on the W-APT and ACCESS and their performance
on core content assessments to determine if they are on grade level and performing comparably
to their never-EL peers once exited from EL programs. Yet the District does not even store WAPT scores in its data management systems, Infinite Campus or Alpine, where ACCESS and
other test data are stored. Further, the District does not evaluate the effectiveness of its two
service delivery models – ELD plus SI and TBE. The District should prioritize reviewing
applicable data to ensure that both programs are effective.
Although the District asserts that growth data compiled by the CDE on student
performance on state tests from 2010 to 2014 demonstrate that ELs outperform never-ELs, these
data do not support this conclusion because it does not compare the appropriate groups of
students. As explained further in Section 8 below, the District has not conducted a longitudinal
analysis to compare performance of the appropriate groups: ELs, former ELs, and never-ELs) in
core content areas. Though the District identifies itself as “data driven” and we heard about the
many assessments it uses to measure student progress, the District does not disaggregate the data
by EL, former EL, and never-EL status to evaluate how ELs fare in the CBS model. As
discussed in Sections 4.a and 8, District data analyzed by the United States demonstrates that
under the CBS model, many ELs lack access to grade-appropriate math, literacy, and sometimes
science and social studies curricula even after years in the District. The District’s current
implementation of CBS complicates its response to these data because some officials do not
seem to view this as problematic. Rather, these officials claim the District is “meeting students
where they are.”
The District’s focus on CBS and pedagogical commitment to ending “labels” for students
appear to provide a partial explanation for its failure to evaluate the effectiveness of its EL
programs or the progress of its ELs over time. For example, the District does not track or
monitor long-term ELs, i.e., students identified as ELs for six years or more. And, as mentioned
in Section 6 above, the District does not currently monitor exited ELs. The District does have a
powerful data-tracking and mining system, Alpine, that could and should be developed to
evaluate EL students and services longitudinally using their W-APT and ACCESS scores and to
compare their performance to that of former ELs and never-ELs on key benchmarks like the
CBS levels, state reading, writing, math, and science tests, retention rates, graduation and dropout rates, and participation in gifted, honors, and Advanced Placement programs. On our
upcoming call, we would like to discuss how the District could evaluate its EL programs over
time using data disaggregated by ELs, former ELs, and never-ELs.

48

Other indicators of program success include whether the achievement gap between ELs and never-ELs is
declining over time and the degree to which current and former ELs are represented in advanced classes, special
education services, gifted and talented programs, and extracurricular activities relative to their never-EL peers. See
EL DCL at 37.

24

 8.

The District-Produced Data Show That its EL Program Requires Revisions

School districts must evaluate and monitor the effectiveness of their EL programs to
determine if ELs are overcoming their language barriers and able to participate comparably to
their never-EL peers in the standard instructional program within a reasonable period of time.
Castañeda, 648 F.2d at 1011. When the results fail to show this in one or more EL programs at
the school or district-level, districts must modify those programs to meet their obligations under
the EEOA. Id. at 1010 (if a school district’s EL program cannot “produce results indicating that
the language barriers confronting students are actually being overcome, that program may . . . no
longer constitute appropriate action as far as that school is concerned.”). As the Fifth Circuit
explained in Castañeda, “[w]e do not believe Congress intended that under § 1703(f) a school
would be free to persist in a policy which, although it may have been ‘appropriate’ when
adopted, in the sense that there were sound expectations for success and bona fide efforts to
make the program work, has, in practice, proved a failure.” Id.
Although the District has failed to adequately evaluate its EL programs under Section
1703(f) of the EEOA, the District’s data reveal serious problems with the program and the need
for revisions. The District administers ACCESS on a yearly basis to assess ELs’ progress in
attaining English proficiency. In its Unified School Improvement Plan for SY 2015-16, the
District recognized that ELs have not made expected progress and that “LEP students are
performing low.” Indeed, Annual Measurable Achievement Objectives (AMAO) 1 data, which
measure whether ELs are making progress on ELP from year to year, show that ELs in the
District are struggling. The AMAO 2 data, which measure whether ELs are achieving English
proficiency, similarly show that ELs are not doing well on this critical benchmark. These
AMAO data were required for district accountability under the No Child Left Behind Act
(NCLB), and the Supreme Court recognized that these and other NCLB data are relevant to,
though not dispositive of, whether an EL program has proven effective under Section 1703(f) of
the EEOA. See Horne v. Flores, 557 U.S. 433, 463-64 (2009). In its Unified Improvement Plan
for SY 2015-16, the District states that “AMAO 1 and 2 is another focus area that the district
finds challenging for our NEP and LEP students.” The District adds that it has “noticed that LEP
students are performing low,” and that it has been “inconsistent in both AMAO 1 and 2 at all
levels.”
However, beyond acknowledging that the District “has been inconsistent in [meeting]
AMAO 1 and 2,” the District has not used these data to remedy the ineffectiveness of its EL
program, particularly at schools where ELs are clearly struggling. The CDE’s 2016 ACCESS
Preliminary Data Analysis found that all middle and high schools, two out of 12 elementary
schools, and the one K-8 school did not meet the state target for making adequate progress on the
ACCESS. Despite clear evidence that ELs are not acquiring English proficiency quickly
enough, the District also fails to provide guidance on how to track and provide language services
for long-term ELs.
As noted above, the District has presented growth charts from 2010 to 2014 from the
CDE website purporting to show that its ELs are making equal if not superior progress to their
never-EL peers. First, these growth charts compare the performance of ELs to “ALL” students
and these two comparator groups do not reflect whether ELs are succeeding in the EL program
25

 and exiting from it able to perform comparably to their never-EL peers. “ALL” students is not
the appropriate group to compare to ELs because “ALL” includes EL students and thus compares
them against themselves. The performance of “ALL” students on tests given in English is almost
always lower than that of never-ELs because “ALL” includes ELs who lack English proficiency
and thus are not expected to perform comparably to never-ELs.
Second, even if these growth graphs compared the right groups of students, they would
not demonstrate that all of the District schools are in compliance with the EEOA because the
District does not have a consistent approach to EL services across schools. Each school makes
its own policy with respect to its EL program, and thus, these district-wide analyses do not
reflect which EL programs are succeeding and which need improvement. As discussed in
Section 2.a, only one of the eleven schools we visited consistently provides a critical part of the
EL program – the daily 45-minute language block. Third, to the extent that some in the District
believe that the Interventionist Framework within CBS constitutes a legally sufficient EL
program, Title I and special education services do not qualify as educationally sound and
effective services designed to overcome ELs’ language barriers.49
Fourth, as discussed in Section 4.a above, data provided by the District also show that far
too many ELs lack access to their grade-level curricula in the current CBS model. Under the
current CBS model, these scores on tests given primarily in English then relegate ELs to literacy
and math classes that are one, two, and sometimes more years below their grade-appropriate
curricula.
Finally, despite the district-level growth from 2010 to 2014 reflected in the CDE graphs,
the District’s students, over half of whom are ELs or former ELs, are still clearly struggling.
Indeed, CDE recently denied the District’s request to be removed from Priority Improvement
status, expressing “concern[]” about “8 schools newly identified as priority improvement or turn
around” and finding that “comprehensively the data did not present a compelling case of
performance that warrants a higher accreditation rating.”50
In addition, the percentages of ELs who are considered long-term ELs at the District’s
secondary schools reveal a need to increase and improve EL services in the District: 35% at
Westminster High School, 54% at Hidden Lake High School, and between 36% to 41% at the
District’s three middle schools.51 These percentages of ELs enrolled in the District for six years
or more are not surprising given the low percentages of ELs who receive daily explicit ELD with
49

We also note that the graphs submitted for our review merely chart data from 2010 through 2014 and do not
compare student performance prior to implementation of the CBS model.
50
In response to the District’s request that the CDE reconsider the preliminary district accreditation rating, CDE
reviewed the District’s DIBELS, ACCESS, and Scantron assessment data and determined, “Though some of the
data provided showed some progress and promise over the past five years, comprehensively the data did not present
a compelling case of performance that warrants a higher accreditation rating.” Letter from Katy Anthes, Colo. Dep’t
of Educ. Interim Comm’r of Educ., to Pamela Swanson, WPS Superintendent, and Larry Valente, WPS Bd. of Educ.
President, at 4 (Dec. 12, 2016), available at https://assets.documentcloud.org/documents/3239312/0070Westminister-Public-Schools-CDE-Response-12.pdf.
51
These statistics are based on data from the District in “SY 2015-16 Title III Data Export,” including: 141 of 388
long-term ELs at Ranum Middle School (36%), 118 of 290 at Scott Carpenter Middle School (41%), 74 of 202 at
Shaw Heights Middle School (37%), 335 of 956 at Westminster High School (35%), and 33 of 61 at Hidden Lake
High School (54%).

26

 a CLDE- or LDE-endorsed teacher in amounts adequate to their ELP level, as discussed in
Section 2.a above.
The percentages of ELs struggling to attain English proficiency and parity of
participation in the standard education program demonstrates that the District’s EL programs and
CBS model require adjustments to ensure that ELs are not denied equal opportunities based on
their language barriers. We welcome the District’s ideas on our call.
9. The District Does Not Ensure Meaningful Communication With LEP Parents
School districts cannot adequately serve their EL students without ensuring meaningful
communication with their parents, including parents who are LEP themselves.52 Meaningful
communication includes the development and implementation of a process for determining
whether parents are LEP and what their language needs are, and then providing adequate
translation and interpreter services for notifying LEP parents of information regarding District
and school activities brought to the attention of other parents, particularly essential information.53
To its credit, the District has implemented some positive parent communication strategies
in recent years. For instance, one Community Education (CE) Specialist offers adult ESL classes
to parents, during which she explains CBS, report cards, and high school transcripts. The CE
Specialist also has presented short tutorials for parents on how to use Empower, the District’s
online system for student progress monitoring and grades, which is only accessible in English.
In addition, the CLDE Coordinator led a Title III parent advisory group in SY 2015-16, which
met twice per semester. At the meetings, the CLDE Coordinator presented information on
ACCESS, understanding the role of the CE Specialists, and being an advocate for one’s children.
Nonetheless, the District’s LEP parent communication practices require improvement,
particularly with regard to recordkeeping and the leveraging of trained, on-site staff to provide
competent translation and interpretation of school-related information in a family’s native
language. The District uses the information gathered from the HLS to determine the most
appropriate language for communicating with LEP parents. However, many HLS forms that we
reviewed in student cumulative files during site visits were incomplete (i.e., questions were left
blank) or incorrectly filled out (i.e., multiple boxes were selected in a contradictory manner).
These errors suggest that some parents experience confusion when filling out the HLS and likely
result in inaccurate identification of LEP parents by the District. For example, at least one file at
F.M. Day Elementary School for a Spanish-speaking student contained an HLS where the
question about what language the parent wanted to receive communications from the school was
left unanswered.
52

LEP parents are parents or guardians whose primary language is one other than English and who have limited
English proficiency in one of the four domains of language proficiency (speaking, listening, reading, or writing).
53
See Dep’t of Health, Educ., & Welfare, Identification of Discrimination and Denial of Services on the Basis of
National Origin, 35 Fed. Reg. 11,595 (July 18, 1970). Essential information includes, but is not limited to,
information regarding: language assistance programs, special education and related services, IEP meetings,
grievance procedures, notices of nondiscrimination, student discipline policies and procedures, registration and
enrollment, report cards, requests for parent permission for student participation in district or school activities,
parent-teacher conferences, parent handbooks, gifted and talented programs, magnet and charter schools, and any
other school and program choice options. See EL DCL at 38.

27

 While we reviewed some student files where documentation was translated in Spanish
per the HLS indicating that the student or parent spoke Spanish, we also reviewed files where the
parent indicated that they preferred communication in Spanish, but yet parent communications in
the students’ files were in English. For example, although the parents of a student at F.M. Day
Elementary School indicated that they wanted to receive communications from the school in
both Spanish and English, the school provided communications – such as a letter about their
son’s involvement in a fight – only in English. Other parents of a student at Shaw Heights
Middle School indicated that they preferred communication in Spanish, and the HLS was filled
out in Spanish, yet a letter that was sent home about the student being identified as NEP based on
the Colorado English Language Assessment (CELA) was provided only in English. The
student’s individualized learning plan (ILP), which was located in the student file, was also in
English and there was nothing to indicate the ILP was communicated in Spanish to the parents.
The District maintains three active database systems to store student information:
Empower, Infinite Campus, and Alpine. During interviews on site, several employees reported
that this system with its varied formats is onerous, and that parents have difficulty accessing
important information about their child’s progress in school. LEP parents, in particular,
encounter difficulties accessing and understanding the information provided on these databases
due to language barriers. As noted previously, Empower, which lists the learning targets that
need to be met at each CBS level, is only accessible in English. Therefore, parents must consult
the District’s Wiki website to find Spanish translations of the learning targets. For parents who
lack computer access, they can use a computer at their child’s school to consult the Wiki page.
This is not an entirely adequate solution, however, because some parents struggle with computer
use in general, as an interviewed employee noted. Report cards on Empower are also not
translated into Spanish; thus, parents must contact teachers directly or attend parent-teacher
conferences to learn about their child’s academic performance. Although some staff reported
during site visits that all office communications to parents are translated into Spanish, this seems
improbable given that the District has only one full-time translator on staff. Some of these
schools have bilingual office staff or office assistants, but it is not sufficient for staff merely to be
bilingual. They must also be trained in the practice and ethics of translating and interpreting.54
Moreover, the District does not address LEP parent languages besides Spanish in a
systemic manner. The District registrar reported that if a family does not speak English or
Spanish, the family brings an English speaker with them to register. Similarly, an employee at
Scott Carpenter Middle School reported that if she has a notice that she wants to send home in
another language, she asks a student to translate the notice into the other language. Another
employee at Westminster High School reported that although she has Hmong students, she has
never requested an interpreter because a cousin, sibling, or relative can provide translation.
These are inappropriate practices – the District may not rely on students, siblings, friends, or
untrained school staff to translate or interpret for LEP parents because it has no way to ensure
that the District communication is accurate.55

54
55

See EL DCL at 38-39 for additional information regarding providing competent interpreters and translators.
See EL DCL at 39.

28

 Further, the District relies on Google Translate to translate the main pages of its website
into languages other than English. Federal guidance has cautioned districts about using webbased automated translation because such translations are often inaccurate and usually require
qualified translators to check and correct for accuracy.56 District staff also reported during site
visits that they use Google Translate. For example, an employee at Tennyson Knolls noted that
she sometimes translates the information she has written into students’ IEPs using Google
Translate. Ranum Middle reported that teachers use Google Translate for in-class assignments.
Relying on Google Translate without a qualified translator to review and edit the Google
translation is an inappropriate practice and inconsistent with the District’s obligation to provide
accurate translations, and to ensure meaningful communications between LEP parents and the
District and its schools.57
While the District does contract with a provider of interpretation and translation services,
teachers and administrators reported during interviews that they do not fully understand the
extent of those services and do not always use them. One principal said that he does not know
whether he can get an interpreter on the phone, and if a non-Spanish-speaking LEP family
member comes into the school, he would try to proceed in English. Although the principal said
that he believes he would receive translation services if he requested them, he did not feel the
need for such services. Likewise, administrators at Westminster High School reported that they
use the District translation service if necessary, but that some of the time the school relies on
parents to get an English-speaking friend or family member to return their phone calls.
Meaningful communication with LEP parents is especially important with respect to EL
students. Although the District’s CBS model is a complex and intricate system, the District does
not adequately communicate to parents, including LEP parents, the details of the system. For
example, parents in the District are not informed orally or in writing that their children may not
receive direct ELD services from a CLD Specialist, but rather that they may receive those
minutes from a special education teacher or a Title I teacher who is not certified to provide ELD.
Staff at Fairview Elementary School noted during interviews that parents may not even be told
this vital piece of information during parent-teacher conferences.
*

*

*

*

We look forward to discussing the substance of this letter and the actions the District can
undertake to comply with its legal obligations moving forward so that we can memorialize them
in an out-of-court settlement agreement. Please contact one or both of us at 202-616-2166 or
303-454-0238 or aria.vaughan@usdoj.gov or zeyen.wu.@usdoj.gov to schedule a telephone
settlement conference in February.

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See EL DCL at 38 n.103. This guidance cautions against this use because translations that are inaccurate are
inconsistent with the school district’s federal civil rights obligation to communicate effectively with LEP parents.
As the guidance explains, to ensure that essential information has been accurately translated and conveys the
meaning of the source document, the school district would need to have a machine translation reviewed, and edited
as needed, by an individual qualified to do so.
57
See, e.g., Order, T.R. v. Sch. Dist. of Phila., No. 15-4782 (E.D. Pa. Nov. 30, 2016) (denying defendant’s motion to
dismiss plaintiffs’ EEOA and other claims in a case regarding the translation of IEPs and other special education
documents).

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 Sincerely,

/s/ Zeyen J. Wu
Zeyen J. Wu
Assistant U.S. Attorney
District of Colorado

/s/ Aria S. Vaughan
Aria S. Vaughan
Trial Attorney
Educational Opportunities Section

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