[Federal Register Volume 78, Number 42 (Monday, March 4, 2013)]
[Notices]
[Pages 14084-14087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04819]
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DEPARTMENT OF EDUCATION
[Docket ID: ED-2013-OESE-0016]
Request for Information To Gather Technical Expertise Pertaining
to the Identification and Placement of Native American Students Who Are
English Learners in Language Instruction Educational Programs
AGENCY: Office of Elementary and Secondary Education, U.S. Department
of Education.
ACTION: Request for information.
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SUMMARY: The U.S. Department of Education (the Department) requests
information about practices used to accurately identify Native American
students in grades K-12 as English learners and to appropriately place
these students in language instruction educational programs (LIEPs).
The Department makes this request to help State educational agencies
(SEAs), local educational agencies (LEAs), schools, tribes, and other
interested entities identify, share, and implement practices for
accurately identifying Native American students who are English
learners.
DATES: Written submissions must be received by the Department on or
before 5:00 p.m., Washington, DC time, on May 3, 2013.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments by fax or by email. To ensure that we do not receive
duplicate copies, please submit your comments only once. In addition,
please include the Docket ID and the term ``Identification of English
Learner Native American Students response'' at the top of your
comments.
Federal eRulemaking Portal: Go to www.regulations.gov to
submit your comments electronically. Information on using
Regulations.gov, including instructions for accessing agency documents,
submitting comments, and viewing the docket, is available on the site
under ``Are you new to this site?''
Postal Mail, Commercial Delivery, or Hand Delivery: If you
mail or deliver your comments, address them to Supreet Anand, Office of
Elementary and Secondary Education, Attention: Native American English
Learner RFI, U.S. Department of Education, 400 Maryland Avenue SW.,
room 3W106, Washington, DC 20202-6132.
Privacy Note: The Department's policy for comments
received from members of the public (including comments submitted by
mail, commercial delivery, or hand delivery) is to make these
submissions available for public viewing in their entirety on the
Federal eRulemaking Portal at www.regulations.gov. Therefore,
commenters should be careful to include in their comments only
information that they wish to make publicly available on the Internet.
Submission of Proprietary Information: Given the subject matter, some
comments may include proprietary information as it relates to
confidential commercial information. The Freedom of Information Act
defines ``confidential commercial information'' as information the
disclosure of which could reasonably be expected to cause substantial
competitive harm. You may wish to request that we not disclose what you
regard as confidential commercial information.
To assist us in making a determination on your request, we
encourage you to identify in your comments any specific information
that you consider confidential commercial information. Please list the
information by page and paragraph numbers.
This Request for Information (RFI) is issued solely for information
and planning purposes and is not a request for proposals (RFPs) or a
promise to issue an RFP or a notice inviting applications. This RFI
does not commit the Department to contract for any supply or service.
Further, the Department is not now seeking proposals and will not
accept unsolicited proposals. The Department will not pay for any
information or administrative costs that you may incur in responding to
this RFI.
If you do not respond to this RFI, you may still apply for future
contracts and grants. The Department posts RFPs on the Federal Business
Opportunities Web site (www.fbo.gov). The Department announces grant
competitions in the Federal Register (www.gpo.gov/fdsys). It is your
responsibility to monitor these sites to determine whether the
Department issues an RFP or notice inviting applications after
considering the information received in response to this RFI.
The documents and information submitted in response to this RFI
[[Page 14085]]
become the property of the U.S. Government and will not be returned.
FOR FURTHER INFORMATION CONTACT: Supreet Anand, U.S. Department of
Education, 400 Maryland Avenue SW., room 3W106, Washington, DC 20202-
6132. Telephone: 202-401-9795.
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
1. Introduction
The purpose of title III, part A of the Elementary and Secondary
Education Act of 1965, as amended (ESEA) is to help ensure that
children who are limited English proficient (LEP) attain English
language proficiency and meet the same State academic content and
achievement standards all children are expected to meet. One of the
President's education goals is for American students, including Native
American students, to be first in the world in college completion by
2020.
At present, however, Native American students, compared to non-
Native American peers, face substantial achievement gaps (U.S.
Department of Education, November 30, 2011). The National Caucus of
Native American State Legislators has described the state of education
for Native American students as ``distressing,'' pointing to academic
achievement that is two to three years behind that of their white
peers, high dropout and expulsion rates, and low college-completion
rates (National Caucus of Native American State Legislators, 2008). On
the 2011 National Assessment of Educational Progress, for example,
Native American students in grade four performed lower in reading than
any other group of students. Native American students also have higher
dropout rates than other students. According to the 2010 American
Community Survey, the percentage of dropouts for ages 16 through 24 was
14.9 percent for Native American students compared with 5.1 percent for
white students and 9.1 percent for black students (Institute of
Education Sciences, American Community Survey).
With this RFI the Department is taking several steps to collect
information and gather suggestions to help SEAs, LEAs, schools, tribes,
and other entities identify, share, and implement practices for
accurately identifying Native American students who are English
learners so that more Native American students will be college- and
career-ready.
First, we pose a series of questions--to which we invite interested
members of the public to respond--about identifying Native American
students as English learners.
Second, the Department will host a Web dialogue and conference call
during which external experts and the public can engage in further
discussion on accurate identification of Native American English
learners.
Third, the Department will make available to the public the
information collected from this RFI and the Web dialogue and conference
call, as well as other resources identified by external experts
participating in the Web dialogue and conference call.
2. Definitions
The following definitions apply to this RFI. Statutory definitions
are indicated by the citation at the end of the definition.
English learner means a student who is limited English proficient.
Limited English proficient (LEP) means an individual--
(A) Who is aged 3 through 21;
(B) Who is enrolled or preparing to enroll in an elementary school
or secondary school;
(C)(i) Who was not born in the United States or whose native
language is a language other than English;
(ii)(I) Who is a Native American or Alaska Native or a native
resident of the outlying areas; and
(II) Who comes from an environment where a language other than
English has had a significant impact on the individual's level of
English language proficiency; or
(iii) Who is migratory, whose native language is a language other
than English, and who comes from an environment where a language other
than English is dominant; and
(D) Whose difficulties in speaking, reading, writing, or
understanding the English language may be sufficient to deny the
individual--
(i) The ability to meet the State's proficient level of achievement
on State assessments described in section 1111(b)(3) of the ESEA;
(ii) The ability to successfully achieve in classrooms where the
language of instruction is English; or
(iii) The opportunity to participate fully in society. (section
9101(25) of the ESEA, 20 U.S.C. 7801(25)) (emphasis added).
Native American means an individual who is Indian, Alaska Native,
Native Hawaiian, Native American Pacific Islander, or a native resident
of the outlying areas (20 U.S.C. 7801(25) and (28); 20 U.S.C. 7491(3);
25 U.S.C. 2902).
3. Discussion
In this RFI we specifically inquire into practices regarding: (1)
Accurate initial identification of Native American students who are
English learners; (2) the use of a survey of primary or home language
other than English (PHLOTE survey), as well as other methods, in
identifying Native American students as potential English learners for
the purpose of placement in a LIEP; (3) the use of multi-step processes
for identifying Native American English learners; and (4) defining
significant impact of a Native American language on English language
proficiency and implementing that definition for determination of
English language proficiency.
To be eligible as LEP under the ESEA, Native American students must
not only meet the significant impact requirement in section
9101(25)(C)(ii) of the ESEA; they must also meet the eligibility
requirement in subparagraph (D) of that section. In this RFI we focus
on the significant impact requirement.
Accurate identification of English learner students is essential to
ensure that these students receive the services necessary to
meaningfully access an educational program, as required under title VI
of the Civil Rights Act of 1964 (Civil Rights Act), and the services
for which they are eligible under title III, part A of the ESEA. Under
the ESEA and title VI, Native American students who come from an
environment in which a language other than English has had a
significant impact on English language proficiency may be identified as
English learners. Even if a Native American child does not speak the
language of his or her tribe, this language may still have a
significant impact on his or her English mastery (Leap, 1993). Language
impact may manifest itself in the way a student constructs meaning or
applies syntax or vocabulary.
All States at the very least recommend, if not require, the use of
a PHLOTE survey as a first step in identifying which students may need
to take an English language proficiency assessment (Bailey and Kelly,
2010). A student's performance on that assessment helps determine
whether she or he is identified as an English learner student. Any
methods used to identify Native American students as English learners
must be objective, valid, and reliable. This includes both initial
identification as English learners and identification after an initial
identification as non-English learners based on academic performance.
Section 3302(f) of the ESEA provides
[[Page 14086]]
that a child not be admitted to, or excluded from, any federally
assisted education program on the basis of a surname or language-
minority status.
Researchers including Bailey and Kelly (2010) have pointed to the
great variability in the use of PHLOTE surveys, both across and within
States, thereby calling into question the validity of the process for
identifying students as English learners. Some States permit local
variability in the questions included in the PHLOTE survey. As PHLOTE
surveys are individually and locally administered, the variability in
their administration is also great. Families may vary their responses
to these surveys, indicating in one year that a language other than
English is spoken at home and, in another year that it is not.
Use of PHLOTE surveys with Native American students is particularly
complex due to the current status of many Native American languages;
e.g., the child may not speak the language in the home but may have a
relative who does, or may have grown up in an environment in which the
syntax, rhetorical style, and sociolinguistic patterns reflect the
significant impact of the language. Additionally, among some
communities, there may be a hesitancy to disclose Native American
heritage or use of a Native American language (Weaver, 2001). As a
result of these factors, Native American students may be incorrectly
identified as English learners or as non-English learners upon their
entry into school, and educators may find at a later point in a child's
educational career that she or he has not been appropriately placed in
a LIEP, or in a mainstream classroom with supports, as needed.
Under title VI of the Civil Rights Act and related requirements,
school districts must provide meaningful access to educational programs
for children who are English learners. Further, the Office for Civil
Rights memorandum of May 25, 1970, states that:
Where inability to speak and understand the English language
excludes national origin-minority group children from effective
participation in the educational program offered by a school
district, the district must take affirmative steps to rectify the
language deficiency in order to open its instructional program to
these students.
``Identification of Discrimination and Denial of Services on the Basis
of National Origin,'' Department of Health, Education, and Welfare, 35
FR 11,595 (July 18, 1970).
Accurate identification of students as English learners is critical
to compliance with the requirements (1) to properly serve and identify
English learners under title VI of the Civil Rights Act and (2) to
provide appropriate services under title III, part A of the ESEA.
Accordingly, SEAs, LEAs, and schools have an interest in, and must
share responsibility for, developing and implementing practices that
correctly identify all students, including Native American students,
who are English learners. According to the 2010 U.S. Census, 5.2
million Americans identify themselves as Native American. This is an
increase of 1.1 million since the 2000 Census. The 2010 Census also
indicates that 28 percent of Native Americans ages 5 and older speak a
language other than English at home, as compared to 21 percent of the
population of the Nation as a whole. Recent estimates indicate that
approximately 200 Native American languages are ``living languages'';
i.e., currently spoken (Bright, 2004; Encyclopedia Britannica, 2012).
Due to its responsibilities under title VI of the Civil Rights Act
of 1964 and title I, part A and title III, part A of the ESEA, the
Department also has a role in supporting development and implementation
of practices that correctly identify students, including Native
American students, as English learners. For these reasons this RFI
seeks solutions; advice; technical information; legal, regulatory, and
policy approaches; and other information from the public about
practices for accurately identifying Native American students who are
English learners. Through this RFI, the Department also seeks to gather
information and suggestions for SEAs, LEAs, and schools on how to
address these issues. The Department welcomes input from SEAs, LEAs,
and schools, as well as from tribes, researchers, and other
organizations or individuals.
In addition, the Department will host a Web dialogue and conference
call to engage external experts in an in-depth discussion about these
issues. Responses to the RFI will be shared with the external experts
and the public to inform the planning for the Web dialogue and
conference call. Following the initial Web dialogue and conference
call, the Department will decide the format and process through which
to make available the collected public input. This format could include
an online link to all submissions, a document summarizing this
information, a question-and-answer document to be posted on the
Department's Web site, further Webinars, or other methods.
4. Context for Responses
4.1 The primary goal of this RFI is to gather information that will
help SEAs and LEAs better understand existing practices for identifying
Native American students who are English learners. Because the
questions in section 4.2 of this notice are only guides to helping us
better understand the issues surrounding identification of Native
American students who are English learners, you do not have to respond
to any specific question. You may provide comments in any convenient
format. You may also provide relevant information that is not
responsive to a particular question but may, nevertheless, be helpful.
4.2 Questions Regarding the Identification of Native American Students
Who are English Learners
4.2.1 Practices and Policies. What are the practices and policies
that SEAs and LEAs have implemented for accurate initial identification
of Native American students who are English learners? In the case of
Native American students who may have been misidentified as English
learners or non-English learners, describe the practices and policies
that SEAs and LEAs have implemented to accurately identify these
students? In the case of Native American students with disabilities who
may have been misidentified as English learners or non-English
learners, describe the practices and policies that SEAs and LEAs have
implemented to accurately identify these students.
What guidance have the SEAs and LEAs provided regarding accurate
identification of Native American English learners? What evidence
exists that these are practices that result in accurate identification
of Native American students who are English learners? Where have these
practices been adopted? What are the general lessons learned from these
adoptions? How might these practices be modified and improved for use
in the future? Are there barriers to the adoption of these practices at
the SEA, LEA, or school level? Are any of these practices promising? If
so, please describe the practices, as well as evidence to support that
they are promising.
4.2.2 Defining Significant Impact of a Language Other Than English
on English Language Proficiency. To be eligible as English learners,
Native American students must come ``from an environment where a
language other than English has had a significant impact on the
individual's level of English language proficiency'' (section 9101(25)
of the ESEA). How does the
[[Page 14087]]
SEA, LEA, or school define and implement significant impact of a
language other than English on English language proficiency? What are
the factors that determine the number of generations that are affected
by this significant impact? How sensitive are current English language
proficiency assessment instruments in measuring the significant impact
of an environment in which a language other than English is spoken?
What trends or patterns have SEAs, LEAs, schools, or tribes observed
regarding the identification of Native American students as English
learners and the progress of these students in acquiring English and
attaining English proficiency?
4.2.3 PHLOTE Surveys. How do SEAs and LEAs frame questions on
PHLOTE surveys to ascertain that a language other than English has had
a significant impact on a student's level of English language
proficiency? What are the practices and policies with regard to PHLOTE
surveys that SEAs and LEAs have used to accurately identify Native
American students who are English learners? Are any of these practices
promising? If so, please describe the practices, as well as evidence to
support that they are promising.
4.2.4 Multi-Step Process for Identifying Native American English
Learners. Several States have indicated that they use a multi-step
process to identify Native American English learners, such as
interviewing a parent after completion of the PHLOTE survey or using a
teacher language-observation checklist to verify a child's language
needs. What are the multi-step processes used in the State, LEA, or
school, including the components, timeline, and roles and
responsibilities of individuals who assist with identification of
students?
What evidence or research exists to support that a multi-step
process is effective in accurately identifying Native American English
learner students? What steps or considerations in a multi-step process
are of value in evaluating Native American students who are English
learners and who have or may be suspected of having disabilities; e.g.,
hearing impairment, particularly in the younger age range when
eligibility evaluations for special education services are often
conducted? What are the benefits and drawbacks of using a multi-step
process? What are the roles of parents and community members in
assisting with identification of these students as English learners?
Are there barriers to the adoption of these practices at the SEA, LEA,
or school level?
Accessible Format: Individuals with disabilities can obtain this
document in an accessible format (e.g., braille, large print,
audiotape, or compact disc) on request to the program contact person
listed under FOR FURTHER INFORMATION CONTACT.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. Free
Internet access to the official edition of the Federal Register and the
Code of Federal Regulations is available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you can view this document, as well
as all other documents of this Department published in the Federal
Register, in text or Adobe Portable Document Format (PDF). To use PDF
you must have Adobe Acrobat Reader, which is available free at the
site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at:
www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
Program Authority: 20 U.S.C. 6801-6871.
Dated: February 26, 2013.
Deborah S. Delisle,
Assistant Secretary for Elementary and Secondary Education.
References
Bailey, A. L. and Kelly, K. R. (July 2010). The Use and Validity of
Home Language Surveys in State English Language Proficiency
Assessment Systems: A Review and Issues Perspective.
Bright, W. (2004). American Indian Languages. Retrieved from http://anthropology.si.edu/outreach/indbibl/americanindianlanguages.pdf.
Department of Health, Education, and Welfare. (July 18, 1970).
Identification of Discrimination and Denial of Services on the Basis
of National Origin. 35 FR 11,595 available at www.ed.gov/ocr/docs/lau1970.html.
Encyclopedia Britannica. (2012). North American Indian Languages.
Encyclopedia Britannica Online Academic Education. Retrieved from
www.britannica.com/EBchecked/topic/418877/North-American-Indian-languages.
Institute of Education Sciences, U.S. Department of Education.
(November 2011). NCES 2012459 The Nation's Report Card: Findings in
Brief Reading and Mathematics 2011.
Institute of Education Sciences, U.S. Department of Education. Table
A-33-2. Number of status dropouts and status dropout rates of 16-
through 24-year-olds in the noninstitutionalized group quarters and
household population, by nativity and selected characteristics:
American Community Survey (ACS) 2010. Retrieved from http://nces.ed.gov/programs/coe/tables/table-sde-2.asp.
Leap, W.L. (1993). American Indian English. Salt Lake City, UT:
University of Utah Press.
National Caucus of Native American State Legislators. (2008).
Striving to Achieve Helping Native American Students Succeed.
Retrieved from Retrieved from www.ncsl.org/print/statetribe/strivingtoachieve.pdf.
U.S. Department of Education. (November 30, 2011). Tribal Leaders
Speak: The State of American Indian Education, 2010. Retrieved from
www.ed.gov/edblogs/whiaiane/files/2012/04/Tribal-Leaders-Speak-2010.pdf.
United States Census (nd). American Indians by the Numbers.
Retrieved from www.infoplease.com/spot/aihmcensus1.html.
Weaver, H. N. (2001). Indigenous Identity: What is it and Who Really
Has it? The American Indian Quarterly. Volume 25, Number 2, Spring
2001. pp. 240-255.
[FR Doc. 2013-04819 Filed 3-1-13; 8:45 am]
BILLING CODE 4000-01-P