U.S. DEPARTMENT OF JUSTICE
United States Attorney’s Office
District of Rhode Island
Civil Rights Division
Educational Opportunities Section

USAO DJ 2016V256
CRT DJ 169-66-10

50 Kennedy Plaza, 8th Floor
Providence, Rhode Island 02903
(401) 709-5000
FAX (401) 709-5001

March 8, 2018
By Electronic and First Class Mail
Charles A. Ruggerio, Esq.
Labor and Employment Counsel
Deputy City Solicitor
Providence School Department
797 Westminster Street
Providence, RI 02903
Aubrey L. Lombardo, Esq.
Henneous Carroll Lombardo, LLC
1240 Pawtucket Ave., Suite 308
East Providence, RI 02916
Re:

English Learner Programs and Practices in the Providence Public School District

Dear Mr. Ruggerio and Ms. Lombardo:
We write to provide notice related to the Department of Justice’s investigation of the
Providence Public School District’s (“District”) English Learner (“EL”) programs and practices
under Section 1703(f) of the Equal Educational Opportunities Act of 1974 (“EEOA”), 20 U.S.C.
§ 1703(f), which requires school districts to take “appropriate action to overcome language
barriers that impede equal participation by [their] students in [their] instructional programs.” On
November 21, 2016, we notified the District that we were opening this investigation in response
to complaints that the District was not meeting its obligations to provide language acquisition
services to its EL students or meaningful communications to Limited English Proficient (“LEP”)
parents. In our opening letter and subsequent correspondence, we have requested information
regarding the District’s EL programs and practices regarding EL students and LEP parents.
As part of our investigation, we also visited the following sites on April 24-28, and May
9-10, 2017: Nathanael Greene Middle School; Carl G. Lauro Elementary School; Central High
School; Providence Career & Technical Academy; Roger Williams Middle School; Young &
Woods Elementary School; George J. West Elementary School; Anthony Carnevale Elementary

 School; Mount Pleasant High School; Pleasant View Elementary School; Alan Shawn Feinstein
Elementary at Broad Street; Vartan Gregorian Elementary School; the District’s central offices;
and the District’s Enrollment Center. Naomi Migliacci, the United States’ consultant with
expertise in K-12 EL programs, instruction, and practices, joined us for all site visits.
In accordance with our statutory requirements under the EEOA, we are notifying the
District of the “conditions which, in [our] judgment, constitute . . . violation[s]” of the EEOA.
20 U.S.C. § 1710. We also are notifying the District of the facts supporting our judgment, and
steps to remedy the conditions. See id. In short, these conditions include the District’s: 1)
placement of hundreds of ELs in schools without EL program services without voluntary and
informed waivers of service; 2) use of an educationally unsound EL program; 3) inadequate
implementation of several of its EL programs; 4) failure to staff its EL programs with qualified
teachers; 5) unnecessary segregation of some ELs; 6) insufficient materials at certain schools;
7) inadequate principal training; 8) failure to identify all ELs in a timely way; 9) inadequate
communications with LEP parents; 10) failure to provide ELs with equal opportunities to
participate in specialized programs; 11) inappropriate criteria for exiting ELs from EL programs
and inadequate monitoring of exited ELs; and 12) failure to properly evaluate its EL programs
for effectiveness. Together, these practices prevent EL students from learning English and
accessing their other core subjects, setting them up to struggle and too often to fail.
Before discussing these conditions in detail below, we wish to extend our sincere thanks
to the Superintendent, who cooperated throughout our investigation, and the District employees,
particularly EL Director Soledad Barreto, who helped compile the information we requested and
met with us during our onsite visits. We share the District’s desire to work collaboratively to
improve its EL programs. We look forward to discussing these conditions and the enclosed
proposed settlement agreement with you and any District personnel you deem appropriate.
BACKGROUND
The District operates 42 schools, including 23 elementary schools, 7 middle schools, 10
high schools, and two public charter schools. These schools enroll almost 24,000 students,
approximately 33% of whom are ELs. Nearly 60% of the District’s students come from homes
where English is not the primary language spoken. District families speak 31 different
languages, the most common being Spanish, Arabic, Swahili, Creole, Portuguese, and Khmer.
The District provides nine different EL programs, which it identifies as: 1) English as a
Second Language (“ESL”)/Sheltered Instruction (“Sheltered ESL”); 2) Integrated ESL; 3) ESL
Push-in; 4) ESL Newcomer; 5) Collaborative ESL; 6) Transitional Bilingual; 7) Developmental
Bilingual; 8) Dual Language; and 9) the Consultation Model. The first five programs are similar
in that each includes daily ESL instruction by an ESL-certified teacher. 1 The two bilingual
programs and the dual language program provide instruction in Spanish and English by
bilingual-certified teachers. ELs in the Consultation Model do not receive any instruction from
The term “ESL-certified teacher” in this letter includes elementary and secondary teachers who hold (1) a Rhode
Island certificate for the level and subject in which he or she teaches, and a Rhode Island endorsement as an ESL
teacher or a Bilingual teacher or Content Area teacher of ELs or (2) the Rhode Island ESL certificate. See Rhode
Island Department of Education (“RIDE”) Regulation L-4-2(11).

1

2

 an ESL-certified teacher or a bilingual-certified teacher. Instead, these ELs receive all of their
instruction from general and/or special education teachers who only consult with an ESLcertified teacher.
CONDITIONS IDENTIFIED
School districts must “take appropriate action to overcome language barriers that impede
equal participation by [their] students in [their] instructional programs” by, inter alia, providing
services to EL students to help them learn English. 20 U.S.C. § 1703(f); see also Lau v. Nichols,
414 U.S. 563, 566-69 (1974) (holding that a school district had violated Title VI and its
implementing regulations by failing to provide any EL services to many of its EL students).
Where a District does provide a program of EL services, we evaluate the program by applying
the seminal three-pronged analysis from Castañeda v. Pickard, 648 F.2d 989, 1009-10 (5th Cir.
1981). These prongs assess “the appropriateness of a particular school system’s language
remediation program . . . under § 1703(f)”: (1) whether the chosen program is based upon sound
educational theory or principles; (2) whether the program is reasonably calculated to implement
effectively the educational theory (i.e., whether 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. Id. This analysis also considers whether, in terms of design, implementation, and results,
the EL program 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.” Id. at 1011.
As discussed in further detail below, in our judgment the District has failed to meet these
legal standards, and the conditions and supporting facts identified below demonstrate violations
of the EEOA. See 20 U.S.C. § 1710. These failures explain at least in part why over 750 of the
District’s EL students still lack proficiency in English 6 to 13 years after their enrollment.
1. The District Has Placed Hundreds of ELs in Schools that Lack EL Services
Without Obtaining Voluntary and Informed Parental Waivers of Such Services
As the Supreme Court made clear in Lau and Congress confirmed through the EEOA,
“there is no equality of treatment merely by providing [EL] students with the same facilities,
textbooks, teachers, and curriculum” as non-EL students, “for students who do not understand
English are effectively foreclosed from any meaningful education.” Lau, 414 U.S. at 566; see
Castañeda, 648 F.2d at 1008 (“the essential holding of Lau … has now been legislated by
Congress [in Section 1703(f) of the EEOA]”). To afford equal educational opportunities to EL
students, districts must provide them with specialized instructional services designed to
overcome their language barriers through an educationally sound EL program. See Lau, 414
U.S. at 566 (requiring specialized instruction for ELs); Castañeda, 648 F.2d at 1009 (requiring
that such services be provided through an educationally sound EL program). While parents may
waive their child’s EEOA right to such services, this decision must be informed and voluntary.
See, e.g., Town of Newton v. Rumery, 480 U.S. 386, 393 (1987) (any waiver of statutory right of
action must “be the product of an informed and voluntary decision”); Alexander v. GardnerDenver Co., 415 U.S. 36, 52 n.15 (1974) (waiver must be “voluntary and knowing”).
3

 Our review uncovered that the District has failed to take “appropriate action to overcome
language barriers” by placing hundreds of ELs in schools and programs that lack the services the
students need, without obtaining voluntary and informed waivers of services from their parents.
See 20 U.S.C. § 1703(f); Serna v. Portales Mun. Schs., 499 F.2d 1147, 1150 (10th Cir. 1974)
(discussing the negative effects of placing ELs in a class taught in English without EL services).
When parents sought to enroll their children in these schools, the District improperly counseled
parents that they would have to waive EL services to attend. The District then designated most
of these students as “Eligible but not Enrolled” (“ENE”) in EL programs. In certain instances,
some of the schools without EL services (e.g., Pleasant View) offered specialized special
education programs, forcing parents of children with disabilities to choose between receiving
appropriate special education services or EL services for their children.
The lack of available seats in EL programs at many of the District’s schools encourages
parents to waive EL services in order to enroll their “ENE” children in those schools. At least
one teacher complained to the District about not providing EL services to ENE students and
reported that one such student was “struggling to make progress” and could “benefit from other
ELL services not currently available to him.” See Dist. Response #13, provided Apr. 13, 2017.
Though the parent agreed to put the child into EL services, the teacher reported that the child
would have to wait for a seat to open up in an EL class. The District still has hundreds of ENE
students without EL services or voluntary and informed waivers and has acknowledged that it
needs to take steps to offer EL services to these students as seats in EL programs become
available.
We also learned that the District improperly secured uninformed waivers of service for
some ELs with disabilities by asking their LEP parents to sign waiver forms provided only in
English. Some LEP parents challenged the legality of this practice, and the District partially
resolved their complaints by agreeing to translate the waiver forms and to stop asking LEP
parents to waive EL services. Despite these positive changes, we observed that the forms that
District staff use with parents to discuss program options remain inaccurate and misleading. 2 As
a result, the District still fails to provide parents with the information they need to make
voluntary and informed decisions about the EL programs they may choose or waive.
Each of these inappropriate EL placement and waiver practices violates Section 1703(f)
of the EEOA. These practices unfairly deprive ELs of the right to the services they need to attain
proficiency in English and have an equal opportunity to participate in the District’s programs.
2. The District’s Consultation Model is not Educationally Sound
To address the fact that many schools lacked EL programs or available seats in such
programs, the District created the Consultation Model and introduced it at these schools in the
2015-16 and 2016-17 school years. Though the District calls this Model an EL program, ELs in
this Model remain with regular or special education teachers who are not qualified to serve them.
2

See forms entitled “Language Acquisition Program Options K-12” and “Notification of Initial EL Identification
and EL Services,” provided in hard copy May 9, 2017. For example, the waiver on the Notification form states, “I
understand that my child will be placed in ESL,” even though many ELs end up without ESL. See Sections 2 & 3.

4

 A school district’s EL program must be “informed by an educational theory recognized as sound
by some experts in the field.” Castañeda, 648 F.2d at 1009; Issa v. Sch. Dist. of Lancaster, 847
F.3d 121, 135 (3d Cir. 2017) (same). The Consultation Model is not an educationally sound EL
program, as explained below, and by placing at least 372 ELs at 16 different schools into that
Model in the 2016-17 school year, 3 the District violated the EEOA.
Under the District’s Consultation Model, which is not among the six EL program models
recognized by the State regulations, many ELs with disabilities, and other ELs with literacy
scores above 2.5 or 2.9 on the ACCESS (an English proficiency test), receive no instruction from
an ESL-certified teacher or a teacher who is adequately trained to address their language needs. 4
Instead, the District’s Model places these ELs with special education or general education
teachers, who are expected to consult only once every eight weeks with an ESL-certified teacher.
The District has not identified any educationally sound theory of second language acquisition
that supports its minimalist consultation-only approach for these ELs, nor has the District
identified any experts who recognize its Model as sound. See Castañeda, 648 F.2d at 1009. We
are not aware of—and the District has not provided—any evidence or support to show that ELs
with disabilities or ELs with literacy scores exceeding 2.5 or 2.9 on ACCESS need not receive
ESL or other direct EL services from teachers qualified to provide those services, such as an
ESL-certified teacher. See Issa, 847 F.3d at 135-37 (finding district failed to provide expert or
other evidence to justify its EL program under prong one). ELs with such scores and many ELs
with disabilities have only limited levels of English and still require EL services to become
proficient in English and to meaningfully access the core curriculum.
Despite these students’ clear need for specialized instruction to overcome their language
barriers, the District’s Consultation Model fails to provide EL students any direct EL services
from an instructor qualified to provide those services and is devoid of any curriculum that is
distinct from the regular education curriculum. As recognized by the Supreme Court in Lau and
Congress in Section 1703(f) of the EEOA, placing thousands of EL students in regular education
classes without appropriate English language instruction or teachers qualified to provide that
instruction “effectively foreclose[s]” an equal and meaningful opportunity to participate in a
school’s instructional programs. Lau, 414 U.S. at 566 (1974); Castañeda, 648 F.2d at 1008.
ELs placed in regular and special education classes under the Consultation Model are likewise
denied an equal educational opportunity under the EEOA.
Though the State regulations offered the District many educationally sound EL programs
from which to choose, the District failed to provide these programs to the 372 EL students in the
3

See Dist. Response #1, provided July 24, 2017. The District identified the following ten elementary schools as
providing Consultation-only services to ELs: Pleasant View, Feinstein, Gregorian, MLK, Webster Ave, Woods &
Young, Kizirian, Bailey, Carnevale, and West. See District Response #1, provided July 24, 2017. This response
also identified four secondary schools: Hope High School, West Broadway Middle School, Academy for Career
Exploration, and Alvarez High School. Id. Our visits to Central High School and Providence Career & Technical
Academy revealed ELs with disabilities receiving only the Consultation Model, bringing the number of high schools
to six. The Evolutions and 360 high schools also appear to use this model and a Collaborative ESL program, see EL
Handbook at 33, but we did not visit the schools.
4
District guidance provides that ELs with literacy scores above 2.5 receive the Consultation Model in schools that
offer Sheltered ESL or Integrated ESL programs, and that ELs with literacy scores above 2.9 receive the
Consultation Model in schools that offer Collaborative ESL. See Dist. Response #8, provided May 9, 2017.

5

 Consultation Model. See R.I. Admin. Code 21-2-45:L-4-2(16-22) (“R.I. EL Regs”) (allowing
bilingual education, ESL, Newcomer, Sheltered Content, Collaborative ESL, and dual language
programs). Moreover, the District’s Consultation Model conflicts with the State regulations
providing that ELs with overall scores of 1 to 2.9 on the ACCESS “must receive a minimum of 3
periods (or the equivalent) of ESL instruction a day;” those with overall scores of 3 to 4.9 “must
receive a minimum of 2 periods (or the equivalent) of ESL instruction a day;” and those scoring
a 5 or 6 “must receive a minimum of 1 period (or the equivalent) of ESL instruction a day.” See
id. at L-4-7; see also, id. at L-4-2(19) (requiring teachers who provide ESL instruction to “meet
Rhode Island certification and/or endorsement requirements for ESL instruction”); id. at L-4-2
(18) (requiring “certified and/or endorsed ESL teacher” to provide ESL instruction to ELs in a
Collaborative program). The District provides ELs in its Consultation Model with no periods of
ESL at all, instead relegating them to an unsound and unproven program. See Castañeda, 648
F.2d at 1009-10; Serna, 499 F.2d at 1150 (discussing negative effects of placing ELs in classes
without services).
3. The District Fails To Adequately Implement Its Consultation Model
Even if the District could produce evidentiary support for its Consultation Model’s theory
that a general or special education teacher can provide ESL based on consultations with an ESLcertified teacher, the District has not committed adequate “practices, resources and personnel
necessary to transform [this] theory into reality.” Castañeda, 648 F.2d at 1009-10.
According to the District’s EL Director, “[t]he Consultation Model requires a certified
ESL or Bilingual teacher to consult with the classroom teacher responsible for delivering
instruction in order to provide the teacher with the accommodations and strategies necessary to
support the [EL] student in making content comprehensible and increasing their academic
English proficiency.” Barreto Aff. ¶ 6, Aug. 1, 2016. The model also expects general and
special education teachers who are teaching ELs to use “effective ESL strategies in the content
classes.” See English Language Learner Handbook: A Resource for Providence Educators at 33
(“EL Handbook”). However, the District has not required the general or special education
teachers to have adequate training on ESL or sufficient consultations with ESL-certified teachers
to ensure that the ELs actually receive ESL and meaningful access to their core content
instruction. As the case law makes clear, districts must have teachers who are adequately trained
to implement their chosen EL programs. See Castañeda, 648 F.2d at 1013; Keyes v. Sch. Dist.
No. 1, Denver, 576 F. Supp. 1503, 1516-17 (D. Colo. 1983). We discovered that the District’s
general and special education teachers in the Consultation Model do not receive adequate
training and support. Indeed, the District expects teachers using this model to consult only once
every eight weeks for an unspecified amount of time, and does not enforce even this minimal
expectation.
Our interviews with teachers implementing the Consultation Model and reviews of the
District-produced consultation logs reveal only cursory interactions, often by email, during
chance encounters, or during a few scheduled minutes before or after school. For example, an
ESL-certified teacher at Central revealed during an interview that he had consulted only once
during the school year with the teachers of the EL students with disabilities on his caseload. Inperson meetings are rare, and the sample logs from West, Providence Career & Technical
Academy, and Pleasant View did not capture meaningful information about ELs’ needs or ESL
6

 strategies to address them. None of the logs demonstrated that the ESL-certified teacher is
adequately identifying “effective ESL strategies” or “specific language development
accommodations or modifications that … ensure … meaningful access to the instruction.” EL
Handbook at 33.
As a result of the District’s inadequate training, consultation practices, and guidance, at
least 372 ELs in the Consultation Model in the 2016-17 school year were denied the ESL they
need to achieve proficiency in English within a reasonable amount of time. See supra note 4.
These students include, for example, a tenth grader at the Academy for Career Exploration who
has been in the EL program for approximately 11 years and only obtained a 2.5 composite score
on ACCESS. These students also include many ELs with disabilities, who face the dual
challenge of trying to learn their subjects with a disability and a language barrier. Indeed, 74%
of the 202 ELs in self-contained classrooms did not receive ESL, a failure that is likely
attributable to the District’s guidance regarding the Consultation Model. This guidance also led
schools to deny ESL to ELs with literacy scores above 3 – even when those schools’ ESLcertified teachers likely had the capacity to provide some of these students with ESL (e.g.,
Carnevale, Broad Street, and Vartan Gregorian). 5
4. The District Fails to Adequately Implement the Collaborative ESL Program
The District has failed to adequately implement its Collaborative ESL program. Under
this District-created program, an ESL-certified teacher (“Collaborative ESL Teacher”) provides
30 to 60 minutes of ESL a day to ELs with ACCESS literacy scores below 3.0. The
Collaborative ESL Teacher also works with one or more of these EL students’ general education
teachers “to collaboratively plan instruction using effective ESL strategies in the content
classes.” EL Handbook at 33. This program is supposed to provide ELs “grade-level, core
content courses taught in English using instructional strategies that make the content concepts
accessible to them and promote the development of academic English.” Id. However, as
explained below, the District has failed to require the training, collaboration, or co-planning
needed to implement its Collaborative ESL program. See Castañeda, 648 F.2d at 1012-13
(finding training program inadequate). The District also has failed to provide adequate amounts
of ESL to ELs in this program.
The District required its Collaborative ESL Teachers to attend six hours of training in the
2016-17 school year on implementing the program. The District does not, however, require the
general or special education teachers who deliver the Collaborative ESL program to receive
training on the program or ESL strategies, nor does it evaluate whether the teachers know the
instructional strategies needed to make the core content accessible to ELs and promote their
English development. See Castañeda, 648 F.2d at 1013 (requiring teachers who deliver EL
instruction to be adequately trained to provide such instruction and an adequate evaluation of
whether they learned the instructional skills needed to deliver the EL program); Keyes, 576 F.
Supp. at 1514 (“No special training is required for ESL teachers and there is no state
endorsement for ESL teachers. There is no formal district procedure to assess them for language
proficiency or ESL teaching skills.”); see also R.I. EL Regs at L-4-12. The District’s training
5

We are aware of at least one ESL-certified teacher who provided ESL to ELs enrolled in the Consultation Model;
however, such services are neither provided at the direction of the District nor required as part of this model.

7

 records show that it offered one- to four-hour-long trainings on the program at a handful of the
schools using the program: Pleasant View, George West, Carnevale, Bailey, and Gregorian.
Even for those general and special education teachers who voluntarily attended this training, this
is not enough time to prepare a teacher to use ESL strategies all day and all school year long.
See Castañeda, 648 F.2d at 1013 (discussing how district’s teachers, who took the state’s 100hour training and some district training, were not qualified to provide bilingual services and
requiring state and district “to devise an improved in-service training program and an adequate
testing or evaluation procedure to assess the qualifications of teachers completing this
program”); Keyes, 576 F. Supp. at 1514, 1517 (finding teachers’ 18-hour in-service training and
ESL tutors’ two-day training and two-day class observations inadequate because “[t]he ESL
component of the program is being delivered by ESL designated instructors who . . . receive very
little training in ESL theory and methodology”) (emphasis added).
The District also failed to ensure adequate planning time for teachers to implement the
Collaborative ESL program. Many Collaborative ESL Teachers said that they had limited
uninterrupted planning time. At most schools this planning time did not coincide with that of the
general or special education teachers with whom they were expected to co-plan instruction for
ELs. For example, one Collaborative ESL Teacher at Carnevale reported meeting only once a
month for one class period with math teachers and once a month for a class period with reading
teachers.
The District also fails to provide adequate ESL to ELs in the Collaborative ESL program.
First, some Collaborative ESL Teachers reported that they do not provide ESL to all of their ELs
every day. See R.I. EL Regs at L-4-7 (requiring daily ESL instruction for all ELs). Second,
some Collaborative ESL Teachers noted that they initially encountered reluctance, and even
pushback, from certain general education teachers when they tried to provide push-in ESL or
other EL services (e.g., Carnevale, Pleasant View, Broad Street). This reluctance may stem from
inadequate training about the program. Third, it is inappropriate for the District to deny ELs
with overall ACCESS scores of 1 to 3 the three periods of daily ESL they are guaranteed by R.I.
EL regulation L-4-7. See EEOA § 1703(f) (requiring both states and school districts to “take
appropriate action to overcome language barriers”). 6
As a result of these problems in implementation, the District denies ELs in the
Collaborative ESL program meaningful access to their grade-level curriculum and adequate
amounts of ESL in violation of the EEOA. See Castañeda, 648 F.2d at 1011-13; Keyes, 576 F.
Supp. at 1517. The harmful effects of this denial over time are clear. Many of the ELs who have
yet to achieve proficiency in English even after six to nine years in District schools currently
attend or previously attended schools that now offer Collaborative ESL but used to have no EL
program. These long-term ELs still need ESL and support in their core content courses, but their
EL programs have not provided the services that they need to succeed.

6

Rhode Island has chosen to meet its EEOA obligation to ensure school district’s compliance with Section 1703(f)
by requiring a certain number of periods of ESL. See, e.g., Idaho Migrant Council v. Board of Education, 647 F.2d
69, 71 (9th Cir. 1981) (state's department of education, board of education, and superintendent of public instruction
have “an obligation to supervise the local districts to ensure compliance”); U.S. v. Yonkers, 96 F.3d 600, 620 (2d
Cir. 1996) (same).

8

 5. The District Fails to Provide Adequate ESL in its Other ESL Programs
The District also fails to provide adequate ESL in its Sheltered, Integrated, Newcomer,
and Push-in ESL programs in violation of the EEOA. See Castañeda, 648 F.2d at 1010-11 (EL
programs must be “implemented through the use of adequate techniques” that result in ELs’
overcoming their language barriers within a reasonable length of time); see also Rios v. Read, 73
FRD 589, 595 (E.D.N.Y. 1977) (“An inadequate program is as harmful to a child who does not
speak English as no program at all.”). To provide adequate ESL, school districts typically group
ELs for ESL based on their English proficiency level and provide more ESL to the least
proficient ELs. This approach is consistent with the State regulations requiring that Level 1 and
2 ELs receive three periods of ESL a day, while Level 3 ELs receive two periods, and Level 4
and 5 ELs receive only one. See R.I. EL Regs at L-4-7. The District’s EL Handbook also
embraces this grouping concept, noting, with respect to the Sheltered ESL program, that “when
possible and appropriate, students will be platooned by proficiency level so that educators may
address the specific language development needs of students.” EL Handbook at 29.
Despite these requirements, we found that many ELs receive inadequate ESL. For
example, at Mount Pleasant, approximately 43 ELs with ACCESS composite scores of 1.9 or
lower, who should receive three periods of ESL a day, received ESL only three days a week for
only 44 to 56 minutes. See R.I. EL Regs at L-4-7. Similarly, approximately 76 ELs at Gilbert
Stuart with ACCESS composite scores of 3 or lower, who should get three periods of ESL a day,
received only 46 to 58 minutes a day. See id. We also saw schools that provided ESL based on
students’ grade levels rather than their English proficiency levels. This inappropriate practice
resulted in many ESL classes of ELs with ACCESS scores ranging from 1 (i.e., beginner) to 4.9
(i.e., almost proficient), in which teachers could not adequately meet the language needs of ELs
at such disparate levels (e.g., Greene, DelSoto, and Bishop).
We also found schools that failed to provide any ESL at all to students who were enrolled
in District programs that require ESL. According to District guidance, ELs in the Sheltered ESL
program should be placed in ESL classes with an ESL-certified teacher. See EL Handbook at 29.
In practice, however, the District places ELs who are enrolled in this program in general
education classes without ESL. For example, at Broad Street the District placed some newcomer
ELs and other ELs with low scores in general education classes that either do not provide ESL or
provide inadequate ESL. We also learned that some ELs, originally placed in Sheltered ESL
classes due to their low English proficiency levels, have been “bumped” to general education
classrooms without ESL to make space for newly enrolling ELs.
Finally, at several schools implementing the Sheltered ESL program, including but not
limited to Greene, Roger Williams, West, Central, and Mount Pleasant, we observed lessons that
did not incorporate ESL, even though District guidance requires Sheltered ESL programs to
provide a “strong [ESL] component in every lesson.” See EL Handbook at 29.
Without adequate ESL, ELs cannot attain English proficiency and “parity of participation
in the standard instructional program within a reasonable length of time after they enter the
school system.” See Castañeda, 648 F.2d at 1011. As a result, many of these students, some of
whom are already designated as long-term ELs, will languish in the District’s EL programs. In
fact, the District has at least 756 long-term ELs who have not yet attained English proficiency,
9

 notwithstanding the fact that they have been in its EL programs anywhere from 6 to 13 years.
See Dist. Response #1, provided Jan. 27, 2017. The District must ensure that its EL students are
receiving ESL in a manner that is both appropriate and effective at overcoming their language
barriers within a reasonable length of time. See Castañeda, 648 F.2d at 1011.
6. The District Fails to Adequately Staff its EL Programs with Qualified Teachers
The District’s failure to provide ELs with the ESL they need is closely connected to its
failure to staff its EL programs with enough ESL-certified teachers. Under the EEOA, districts
must hire and train a sufficient number of qualified staff to implement their chosen EL programs.
Castañeda, 648 F.2d at 1010, 1012-13. As Castañeda recognizes, teachers should at a minimum
meet the state requirements for teaching ELs, though they may need even more training to
become qualified to deliver EL services. See id. at 1012-13. Even Rhode Island’s regulations
require ESL instruction to be taught by ESL-certified or bilingual-certified teachers. See R.I. EL
Regs at L-4-2(11).
The number of ESL-certified teachers in the District is not sufficient to serve its large EL
population. When we asked school personnel what resources they wish they had to better serve
ELs, every principal said more ESL-certified staff. For example, we learned that the District
assigned 200 newcomer ELs mid-year to Central, but did not assign any additional ESL teachers
to the school. Consequently, the school asked its ESL-certified teachers to volunteer to teach
more classes during their free periods. ESL teachers at other schools also shouldered
unmanageable caseloads, such as a teacher at Roger Williams who was providing ESL to 181
ELs. In addition, District data showed that 15% (33 of 215) of the teachers hired to address the
needs of ELs were not yet qualified because they were in the process of obtaining their
emergency certification. Seven of them had let their emergency certifications lapse. See Dist.
Responses W-X, provided June 6, 2017.
Most of the schools we visited had vacancies for ESL-certified teachers. Carl Lauro had
eight vacancies for ESL-certified teachers, and other schools had long-term substitutes teaching
ESL (e.g., Messer Street’s Newcomer Program). At nearly every school, the Human Resources
Director and teachers and administrators raised concerns about the cost ($7,000 - $10,000) and
time commitment (two or more years of night and weekend classes) that deter teachers from
seeking ESL certification. Meanwhile, compensation for having an ESL certification is nominal,
at approximately $500 annually. To its credit, the District is working on new initiatives to
increase the number of ESL-certified teachers. However, the current complement remains
inadequate to implement the District’s many ESL programs. See Castañeda, 648 F.2d at 1010,
1012-13; Keyes, 576 F. Supp. at 1516-17.
The District also fails to staff its Sheltered ESL program with enough teachers who are
qualified to shelter content for ELs. See Castaneda, 648 F.2d at 1012-13; Keyes, 576 F. Supp. at
1516-17. Even state regulations require that teachers of sheltered content instruction “must (1)
meet appropriate State-certification requirements, (2) be highly qualified in their content area as
defined by [the State], and (3) participate in specialized training in ESL methods and
techniques.” Id. at L-4-2(21). The District represents that its Sheltered ESL program uses the
specialized techniques in the Sheltered Instruction Observation Protocol (“SIOP”) model. See
EL Handbook at 29. This model “is both an observation instrument and a sheltered instruction
10

 model for teachers to plan and deliver lessons” that give ELs “the opportunity to learn academic
English through high quality, scaffolded instruction in all core content areas.” Id. We learned
from interviews and classroom observations that the District had trained few teachers on the
SIOP model or other sheltering strategies. 7 For example, at Central, no teachers had SIOP
training and only one teacher has received training on sheltered instruction since 2014. Most
teachers that we observed did not implement the SIOP model, and none did so with fidelity. 8
The District’s failure to require SIOP (or other training on how to provide sheltered
instruction) for the teachers assigned to the Sheltered ESL program and its failure to evaluate if its
sheltered teachers are adequately trained constitute failures to take appropriate action under the
EEOA. See Keyes, 576 F. Supp. at 1514 (finding district violated the EEOA by not requiring
training for its EL teachers and not having a formal procedure for evaluating their teaching skills).
7. The District Unnecessarily Segregates Some ELs in its Sheltered ESL Program
Though the EEOA allows a district to group students on the basis of English proficiency
for language remediation purposes, a district may not segregate ELs beyond what its EL
programs necessitate. See Castañeda, 648 F.2d at 998, n.4 (“We assume that the segregation
resulting from a language remediation program would be minimized to the greatest extent
possible and that the programs would have as a goal the integration of the [EL students] into the
English language classrooms as soon as possible and thus that these programs would not result in
segregation that would permeate all areas of the curriculum or all grade levels.”). However, at
certain schools offering the Sheltered ESL program, the District unnecessarily segregates ELs
with higher proficiency scores beyond what this program or their English proficiency levels
require. At several schools that we visited (e.g., Greene, Lauro, Williams, West, and Broad
Street), we found that ELs across English proficiency levels in one or more grades (or cohorts
within grades) attended all classes with only ELs, except for lunch, recess, and electives. In
addition, a parent at Bishop complained to the District that ELs were not being taught along with
non-ELs. See Dist. Response #13. The District has not demonstrated why segregating ELs in
the Sheltered ESL program all day except for lunch, recess, and an elective is necessary when
sheltered instruction may be provided in an integrated class of ELs and non-ELs, as recognized
by the District’s own guidance. 9 This degree of segregation is especially unwarranted for ELs
matriculating from more integrated EL programs where they had been progressing.

7

Teachers at only five schools received any SIOP training between 2014 and 2016, and only three of those schools
had more than one teacher attend. E Cubed trained most of its staff, including special education teachers, but at
most they received five hours of training, which is not enough to prepare a teacher to shelter content effectively. See
Castañeda, 648 F.2d at 1013; Keyes, 576 F. Supp. at 1517.
8
For example, a core component of SIOP is to have both content and language objectives and provide support for
those objectives during the lesson. See EL Handbook at 42, 45. However, many classrooms that we observed did
not have a language objective written on the board, nor were the objectives clear from the lesson delivery.
9
The District’s guidance to schools offering Sheltered ESL and the Consultation Model recommends placing ELs
with literacy scores above 2.5 into Integrated or general education classes with non-ELs. See Dist. Response #8,
provided May 9, 2017.

11

 8. The District Lacks Sufficient Materials to Implement Some of Its EL Programs
As Castañeda makes clear, a school district must provide its ELs with adequate materials
to implement its chosen EL program. See Castañeda 648 F.2d at 1009-10; see also Lau v.
Nichols, 414 U.S. 563, 566 (1974). The District, however, lacks sufficient materials at some
schools to implement its EL programs. For example, at Pleasant View, we learned that Imagine
Learning was available only for ELs scoring under 3 on the ACCESS even though ELs with
higher scores in the Consultation Model also could benefit from this resource. Providence
Career & Technical Academy personnel explained that the school lacks supplemental ESL
materials for technical courses, such as plumbing and HVAC. At Central, school personnel
tasked with providing EL services to the large number of newcomer ELs lacked a pacing guide
with appropriate resources designed specifically for newcomers. One teacher at Central reported
that teachers have no budget to purchase supplies for their classrooms, and noted that bilingual
dictionaries would be incredibly helpful to ELs. Bilingual dictionaries are a standard testing and
instructional accommodation that should be available to all ELs who qualify for this
accommodation.
9. The District Fails To Adequately Train Principals to Implement EL Programs
Administrators at the district and school levels must monitor implementation of EL
programs and ensure that teachers are adequately trained to implement these programs. See
Castañeda, 648 F.2d at 1012-14 (explaining that the lack of qualified, well-trained teachers
“seriously undermine[d] the promise of the district’s bilingual education program” and that the
district in question could not be “deemed to be taking ‘appropriate action’ to overcome the
language disabilities of its students” until it obtained qualified teachers for its program). For an
EL program to be effective, it is important that not only the teachers are qualified to deliver
instruction to ELs, but that those tasked with evaluating the teachers, such as principals, are also
qualified to evaluate the instruction of ELs in the classroom. See id. (requiring the state and the
district “to devise an improved in-service training program and an adequate testing or evaluation
procedure to assess the qualifications of teachers completing this program”); see also Rios v.
Read, 480 F. Supp. 14, 18, 23-24 (E.D.N.Y. 1978) (finding district’s bilingual program
inadequate under the EEOA, including district’s use of principals “to evaluate the performance
of bilingual teachers [who] are unfamiliar with bilingual teaching methods and do not understand
Spanish”).
The District does not require its administrators to receive training on ESL, the SIOP
model or other sheltering strategies, or any specific training about evaluating teachers of ELs.
With the exception of a few hours during “nuts & bolts” orientation, principals do not receive
training from the District on how to observe, give feedback on, or evaluate instruction in a
sheltered or collaborative setting. The District also has not developed any tools to assist
principals in evaluating EL instruction in their schools; principals rely on the standard teacher
evaluation form when conducting classroom observations. Consequently, with the exception of
schools like George West, Pleasant View, and Providence Career & Technical Academy, where
the principals were former EL teachers and can rely on their personal training and experience,
many of the District’s principals, like those in Rios, are ill-equipped to evaluate the effectiveness
of their EL programs or provide support to their EL teachers. See Rios, 480 F. Supp. at 23-24.
12

 10. The District’s Enrollment Procedures Do Not Timely Identify All ELs
A school district must have procedures in place to accurately and timely identify students
who have a primary or home language other than English and to determine if they are ELs
through a valid and reliable English proficiency assessment in all four language domains. See
Keyes, 576 F. Supp. at 1513-14, 1518 (absence of a formal valid testing process to identify EL
students violated the EEOA); Rios, 480 F. Supp. at 23-24 (“The school district has the [EEOA]
obligation of identifying [EL] children . . . by objective validated tests conducted by competent
personnel”); Cintron v. Brentwood, 455 F. Supp. 57, 64 (E.D.N.Y. 1978) (requiring “validated”
tests of English proficiency). While it is important to ask parents some questions to determine if
their child might be an EL, the EEOA case law recognizes that “[i]t is common for parents to
overstate the language abilities of their children” and thus necessary to use a valid testing process
to identify ELs. See Keyes, 576 F. Supp. at 1514.
The District’s enrollment procedures fail to ensure that all ELs are reliably and timely
identified. The District asks all parents to complete a six-question home language survey and
then to answer a different five-question online survey to identify students whose primary or
home language is a language other than English. Although the questions on the home language
surveys are sufficient for determining which students may be ELs who need their English
proficiency tested, the District requires placement officers to conduct a family interview and to
use the results of the interview to inform determinations about whether to test the student’s
English proficiency. The EL Director acknowledged that some of the family interview questions
do not elicit information relevant to determining whether a student is an EL.
Instead of administering a valid English proficiency test to students whose home
language surveys responses indicate that they may be ELs, the District is not testing some of
these students based on parental responses to family interview questions that are not relevant to
whether a student is an EL. This practice, coupled with the District’s failure to give its staff
adequate guidance about which parental responses to the relevant questions should lead to
testing, results in unreliable EL identification procedures. See, e.g., Cintron, 455 F. Supp. at 64
(finding EL identification procedures “deficient” because they were “not clearly indicated” and
requiring “validated tests” to assess English proficiency). For example, one placement officer
told us that “[i]f the parent says mostly English [in response to follow-up questions], then we
don’t test.” But the District should not rely on assertions from parents about their child’s
language abilities in a follow-up conversation as a substitute for a valid and reliable English
proficiency test. See Keyes, 576 F. Supp. at 1514. Another placement officer said, “If they’re
born here, we usually don’t test. That came from [the EL Director].” The placement officers also
told us that the EL Director informed the Enrollment Center that it was “over testing and setting
up too many appointments.” Such statements are troubling because most ELs were born in the
United States, and only valid and reliable testing can accurately identify all ELs. See id.; Rios,
480 F. Supp. at 23.
Also troubling are the District’s discrepant reports about the number of students whom
the Enrollment Center did not test even though their home language surveys indicated a primary
or home language other than English. The District’s initial 2016-17 report to us showed that it
had not tested more than 1,000 such students. Later, the District reduced that number to 69
students, asserting that many had already been tested in another state. Of these 69 students, 41
13

 had home language surveys identifying Spanish as both the language the parent uses most often
with the child and the language the child first learned to speak. In its most recent report, the
District reported only 11 students whose lack of testing it considered unjustified, but we have
concerns about the way the District calculated this number. Whatever the actual number is, it is
clear that the District’s unreliable enrollment procedures discussed above lead to failures to test
the English proficiency of students who are likely to be ELs based on their home language
surveys, and therefore a failure to timely identify all ELs. See Rios, 480 F. Supp. at 23-24;
Cintron, 455 F. Supp. at 64.
11. The District Does Not Effectively Communicate with Many LEP Parents
A district must take appropriate action to ensure meaningful communication with LEP
parents about its programs and the procedures for accessing those programs so that their children
are not denied an equal opportunity to participate. See 20 U.S.C. § 1703(f). Ensuring equal
educational opportunities for ELs requires adequately notifying their parents of district and
school activities, and effectively communicating in district and school meetings, such as IEP
meetings, through interpreters and translated documents. See T.R. v. Sch. Dist. of Philadelphia,
223 F. Supp. 3d 321, 333-35 (E.D. Pa. 2016) (denying school district’s motion to dismiss
plaintiffs’ EEOA, Title VI, and other claims in a case seeking district translation of IEPs and
other special education documents and adequate interpretation at IEP meetings for LEP parents).
The District fails to communicate effectively with LEP parents at the Enrollment Center.
The home language survey and the form to waive EL services are available only in English and
Spanish, which excludes the parents of at least 561 students who speak other languages. In
addition, the forms about EL program options are inaccurate and not translated. While the
District need not translate these forms into every language, it should translate them into
languages the District has identified as the next most common languages, such as Arabic,
Swahili, Creole, Portuguese, and Khmer, and have interpreters available for less common
languages. The District, however, lacks a procedure for the Enrollment Center staff to obtain
qualified interpreters for parents who speak languages other than those spoken by the staff. The
Enrollment Center staff explained that they often communicate with LEP parents using webbased, automated translation services, like Google Translate, or rely upon family members to
interpret when communicating essential information about the enrollment process and the
programs available to ELs in the District. In the event that an LEP parent arrives at the
Enrollment Center without a family member or other representative who can interpret, and the
LEP parent speaks a language other than those spoken by the staff, the placement officers
explained that they request that the family member return with an interpreter.
Communications with LEP parents at the school level are also inadequate. Interviews
with administrators and teachers revealed that schools often fail to use the LEP parent
information gathered on the home language survey or the District’s contract for interpretation
and translation services. Some administrators reported they could use the District translation
service if necessary, but most reported that they relied on untrained office staff or Englishspeaking friends or family members when communicating with LEP parents. School personnel
also reported using students, friends, family members, and Google translate to communicate
about school programs and activities with LEP parents and EL students.
14

 Many of the schools we visited had bilingual office staff, but neither they, nor the
District, had trained such staff on the practice of translating and interpreting. Few schools we
visited reported requesting an interpreter for any reason other than an IEP meeting. No school
personnel had ever known an IEP to be translated from English into another language. See T.R.,
223 F. Supp. 3d at 333-35.
Collectively, the District’s failures to communicate effectively with LEP parents deny
ELs equal opportunities to participate in its instructional programs, whether it be an EL program,
its special education program, or an Advanced Academic program. The District must ensure that
LEP parents have timely and meaningful access to information about its educational programs so
that LEP parents are empowered to make informed educational decisions for their children and
are not placed at a disadvantage relative to parents and students who are native English speakers.
12. ELs Lack Equal Opportunities to Participate in Specialized Programs
Taking “appropriate action” to provide ELs with “an equal educational opportunity” to
participate in the District’s “instructional programs” includes not only the core curriculum, but
also its specialized programs like gifted, vocational, and special education programs. See 20
U.S.C. § 1703(f). Though the District does not have a policy that categorically excludes ELs
from these programs, we are concerned that the District’s practices are deterring ELs from
participating or remaining in these specialized programs or delaying their access to them.
ELs clearly face barriers to participation in the District’s Advanced Academic program at
Greene, Williams, and Classical High School and its career and technical education program at
Providence Career & Technical Academy. Though the District had approximately 1,083 ELs in
middle school in the 2016-17 school year, only one enrolled in a middle school Advanced
Academic program, and that EL at Greene was an Eligible but Not Enrolled student whose
parents apparently waived EL services. See Dist. Response G, provided May 24, 2017. The ELs
enrolled in the Sheltered ESL Program at Greene—which is the only EL program the school
offers—take all core content courses with other ELs, and therefore cannot enroll in the Advanced
Academics program. Thus, the District’s implementation of the Sheltered ESL program at
Greene effectively requires an EL who wishes to enroll in the Advanced Academics program to
waive EL services. Being a current EL is not the only barrier, however, because very few former
ELs participated in the District’s Advanced Academic program. 10 For example, only one of
1,774 high school ELs (0.06%) in the District and 11 of 264 former ELs in high school (4%)
were enrolled in this program at Classical High School, as compared to 1,120 of the 4,970
(22.5%) never ELs in high school. Id. The 2016-17 data further show that approximately 99%
(1,120) of the 1,132 students at Classical were never-ELs and only 0.01% were current ELs (1)
and 1% (11) were former ELs.
We also have concerns about EL students’ access to the Providence Career & Technical
Academy. While on site, we learned that the school has a set number of seats for EL students in
each entering ninth-grade class. We determined that the percentage of these seats (11%) is not
commensurate with the percentage of total ELs in grade nine (approximately 36%). We also
10

In the 2016-17 school year, only 25 of the 649 former ELs in the District in grades six through eight were
enrolled in this program at Greene and Williams. Id.

15

 noticed that the number of ELs in this school declines across grades nine to twelve and is less
than half of the entering number of ninth-grade students by senior year. These numbers suggest
that some ELs transfer or otherwise withdraw after ninth grade, losing an important opportunity
for vocational training. Further, we are concerned that EL students may be withdrawing due to
inadequate language assistance. There are only two teachers of ELs, and one is in the first year
of her emergency certification. The District must ensure that its policies and practices are not
impeding ELs from participating in this Academy or other desirable programs based on their EL
status. See 20 U.S.C. § 1703(f).
In addition, interviews at five schools suggested delays in evaluating ELs suspected of
having disabilities based on their language barriers. School personnel informed us that it can
take a significant amount of time for ELs to be evaluated for and receive special education
through the District’s RTI process. One teacher at the Providence Career & Technical Academy
shared that teachers are often met with resistance when they seek to refer an EL for a special
education evaluation because the evaluation process can take years. The District must ensure
that there are no formal or informal policies that require ELs to wait longer than non-ELs to be
evaluated for a disability. When a district delays an EL’s opportunity to participate in its special
education program because the student is an EL, the district fails to take the appropriate action
required by the EEOA. Insisting that ELs suspected of having a disability wait for a specified
time period or until they achieve a certain level of English proficiency before they can be
evaluated for a disability unfairly delays their opportunity to participate in the district’s special
education program. Further, by delaying the special education evaluation of an EL because the
child is an EL, the district makes it difficult, if not impossible, for that child to overcome his or
her language barriers and participate equally in the district’s instructional programs.
13. The District’s Exit Criteria Are Inappropriate and Its Monitoring of Exited
Students is Inadequate
A school district must monitor the progress of its EL students in acquiring English
proficiency and participating in the district’s instructional programs. This monitoring must
include validly and reliably testing their English proficiency and performance in the core content
subjects. See Castañeda, 648 F.2d at 1014 (“Valid testing of student’s progress in these areas is,
we believe, essential to measure the adequacy of a language remediation program.”). When this
testing shows that the EL student has achieved proficiency in English, the district should exit the
student from its EL program and identify the student as a former EL, unless other criteria for exit
indicate that the student needs additional EL services. 11 To ensure that former ELs were not
prematurely exited from EL programs and can participate in instructional programs comparable
to their never-EL peers, the district must monitor the academic progress of its former ELs and reoffer them EL services if the students are struggling based on persistent language barriers. See
20 U.S.C. § 1703(f); Castañeda, 648 F.2d at 1014 (“The progress of limited English speaking
“Any ability grouping or tracking system employed by the school system to deal with the special language skill
needs of national origin-minority group children must be designed to meet such language skill needs as soon as
possible and must not operate as an educational dead-end or permanent track.” Lau, 414 U.S. at 568 (quoting May
25, 1970 Mem. of Dep’t of Health, Education, & Welfare (now replaced by the Dep’t of Education), 35 Fed. Reg.
11595 (July 18, 1970), re: Title VI obligation not to discriminate based on national origin). In other words, districts
should not keep ELs in EL programs longer than necessary and should exit them when their language barriers have
been overcome and no longer deny their participation in instructional programs.

11

16

 students in these other areas of the curriculum must be measured by means of a standardized test
. . . because no other device is adequate to determine their progress vis-à-vis that of their English
speaking counterparts.”). As Section 1703(f) and Castañeda make clear, the ultimate question is
whether ELs who participated in the district’s EL program have overcome their language barriers
(i.e., became former ELs) and are able to participate equally in the district’s instructional
programs.
The District inappropriately precludes ELs from exiting its EL programs until they reach
the third grade. See EL Handbook at 16 (“students in grades 1 and 2 will not be exited from EL
program”). Rhode Island’s exit criteria do not include this limitation. The District did not
proffer any explanation for this requirement, and at least one elementary principal reported that
she had several ELs who could have exited but for this requirement. By requiring ELs to remain
in an EL program when they have demonstrated proficiency on a valid and reliable test of
English proficiency, the District is denying these students an equal opportunity to participate in
the standard instructional program and unnecessarily segregating them in EL-only classes.
As for the students who have exited the EL program, the District is not meaningfully
evaluating these former ELs to ensure they are able to participate comparably to their never-EL
peers. See Castañeda, 648 F.2d at 1011, 1014. According to our interviews, teachers are often
not aware of the former ELs who need periodic monitoring to ensure that they no longer need EL
services. Though teachers of a former EL are most likely to know if the former EL is struggling
due to a persistent language barrier, their input is often not meaningfully gathered from the
guidance counselors and other school personnel who are responsible for filling out the
monitoring forms for former ELs. Interviewed staff also could not recall an instance of a former
EL reentering EL services because of a persistent language barrier. Without meaningful
monitoring of the individual performance of former ELs, the District has no way of knowing if
they have overcome their language barriers or need additional EL services.
14. The District Has Not Adequately Evaluated Its EL Programs for Effectiveness
The District has not adequately evaluated the effectiveness of its EL programs over time
to ensure that they enable EL students to acquire English proficiency and “to attain parity of
participation in the standard instructional program” within a reasonable period of time.
Castaneda, 648 F.2d at 1011. To accurately assess the effectiveness of an EL program, a district
must evaluate data that provides a comprehensive and reliable comparison of how ELs, former
ELs, and never-ELs are performing in the district’s instructional programs longitudinally. See id.
at 1011, 1014 (“Valid testing of students’ progress … is, we believe, essential to measure the
adequacy of a language remediation program.”).
Based on our review of the data produced by the District and our interviews of District
staff, the District has not properly evaluated its nine EL programs. First, the District has not
disaggregated any of its student performance data by EL program. See Issa, 847 F.3d at 137-38
(discussing district’s failure to evaluate the effectiveness of the EL program). Second, the
District is not comparing the academic performance of ELs, former ELs, and never-EL students.
See Castañeda, 648 F.2d at 1014 (“The progress of limited English speaking students in these
other areas of the curriculum must be measured by means of a standardized test . . . because no
other device is adequate to determine their progress vis-à-vis that of their English speaking
17

 counterparts.”). Third, the District is not analyzing student performance data longitudinally (i.e.,
tracking cohorts of ELs who remain in the EL program over time to assess its effectiveness). See
id. at 1011; Horne v. Flores, 557 U.S. 433, 464 (“[A]s the Court of Appeals recognized, the
absence of longitudinal data in the record precludes useful comparisons” when evaluating the
effectiveness of an EL program.”); U.S. v. Texas, 601 F.3d 354, 371 (5th Cir. 2010) (same). For
example, even though the Superintendent acknowledged, and our review of the available data
confirmed, that middle school is where ELs experience considerable difficulty with attaining
proficiency, the District had not done a longitudinal analysis of middle school ELs to determine
how best to improve their performance. The District should closely evaluate this and the EL
programs at schools that retained a large percentage of ELs. For example, the Juanita Sanchez
Educational Complex retained 28% of ELs in the 2015-16 school year, which is nearly twice the
number of never-EL students retained. See Request #14_FINAL_RetentionELLStatus. In ninth
grade alone, JSEC retained 43% of ELs. See id. Similarly, Central retained 21% of ELs in the
2015-16 school year compared to only 10% of the never-ELs. See id.
RECOMMENDED REMEDIAL MEASURES
The District should promptly implement minimum remedial measures—set forth here and
in more detail in the enclosed proposed settlement agreement—to remedy the conditions
discussed above and protect the EEOA rights of EL students in the District. In broad terms, the
District must ensure that all ELs are reliably and timely identified; provided with adequate ESL,
including an ESL-certified teacher; and receive meaningful access to their core curriculum from
teachers who are adequately trained to teach content to ELs. The District also must provide
appropriate materials for its EL programs, train principals to implement its EL programs,
increase ELs’ access to its specialized programs, and ensure meaningful communications with
LEP parents through qualified interpreters and translated materials. Finally, the District must use
appropriate exit criteria, adequately monitor former ELs, and effectively evaluate its EL
programs over time.
CONCLUSION
We look forward to speaking with you and District administrators about this letter and the
enclosed proposed settlement agreement. We hope to work collaboratively to help the District’s
EL students succeed.
Sincerely,

Andrea E. Hamilton
Andrew K. Jondahl
Trial Attorneys

Amy R. Romero
Assistant U.S. Attorney
District of Rhode Island

18