California State Board of Education


Purpose of this Advisory

On July 14, 1995, the California State Board of Education (Board) revised its policy statement on local district programs for limited-English proficient (LEP) students, or English learners (1) (Enclosure A). The purpose of this advisory is to clarify districts' responsibilities for services to English learners, including waivers of current legal requirements, in light of the Board's revised policy statement. It suggests what the contents of a general waiver application should contain. Also included are resource and contact lists for districts and schools to use in obtaining assistance in implementing high quality programs for English learners.

The following suggestions provide additional guidance for districts wishing to use the general waiver procedure. The suggestions are illustrations of how, on a case-by-case basis, the Board will be evaluating waiver requests under the federal Castañeda decision. They illustrate a new, reinvigorated emphasis of the Board: namely, what the district will be doing to produce educational results for its English learners.

The Board's revised policy identifies two goals that school districts should seek to achieve in developing programs for English learners: 1) rapid development of English proficiency (literacy), including speaking, reading, and writing, and 2) the opportunity to learn, including access to a challenging core curriculum and access to primary language development.

State Law

The State Board of Education makes clear in its policy that it supports local flexibility in determining instructional programs and methodologies to meet the state required general purposes which have remained operative since the 1987 "sunset" of the Moscone-Chacon Bilingual-Bicultural Education Act of 1976. The Board also expressed the intent to approve waiver requests necessary to enhance such flexibility.

The Board found and declared that the general purposes of the Act are eight in number and expressed as follows, based upon the language contained in Education Code section 52161. The general purposes are listed here in the same order as they appear in the statute.

1. "[T]he Legislature directs school districts to provide for in-service programs to qualify existing and future personnel in the bilingual and crosscultural skills necessary to serve the pupils of limited English proficiency of this state...[and] intends that the public institutions of higher education establish programs to qualify teachers and administrators in the bilingual and crosscultural skills necessary to serve these pupils."

2. "The Legislature finds and declares that the primary goal of all programs under this article is, as effectively and efficiently as possible, to develop in each child fluency in English."

3. "The programs shall also provide positive reinforcement of the self-image of participating pupils... ."

4. "The programs shall also...promote crosscultural understanding... ."

5. "The programs shall also...provide equal opportunity for academic achievement, including, when necessary, academic instruction using the primary language."

6. "It is the purpose of this article to require California school districts to offer bilingual learning opportunities to each pupil of limited English proficiency enrolled in the public schools... ."

7. "It is the purpose of this article to require California school provide adequate supplemental financial support to achieve [the purpose set forth in 6]."

8. "Insofar as the individual pupil is concerned, participation in bilingual programs is voluntary on the part of the parent or guardian."

Federal Law

The revised policy also includes the three-part analysis districts are to use to determine the federally required "appropriate action" they are to take to overcome language barriers that impede students' equal participation in instructional programs. The three-part analysis is as follows:

The 1974 U.S. Supreme Court decision in Lau v. Nichols as codified in the Equal Education Opportunities Act and other federal laws require that each educational agency "...take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs." The following three-part analysis is used to determine "appropriate action:"

Principles for Educational Programs and Services for English Learners.

The Board also established five principles relating to educational programs and services for English learners which can be used to guide districts in meeting the requirements of state and federal law:


The State Board of Education stated that it intends to approve general waiver requests from districts wishing to carry out alternative approaches to meeting the state and federal legal requirements described above where results are being or will be achieved. The general waiver procedures are to be followed to apply for a waiver of one or more provisions of state law (thegeneral purposes) related to programs and services for English learners. For example, a district may wish to waive the requirement for primary language instruction at certain grade levels.

The Board will use the standards of the Castañeda federal court decision to review requests for waivers. As noted above, these standards include 1) a sound educational theory upon which instruction will be based; 2) assurances that adequate procedures, resources, and personnel are in place to apply the theory in the classroom and to implement an effective program; and 3) a method for measuring or evaluating results that demonstrate that students have actually overcome English language barriers and do not have substantive academic deficits.

Suggestions for Development of
a General Waiver Application
State Legal Requirements for English Learners
(See General Waiver Request Form, Enclosure B)

Part I.Education Code section to be waived: EC 62002 and former EC 52161.

Part II.Purpose and Desired Outcomes.
1) Specify the general purpose(s) of former EC 52161 to be waived, pursuant to the Castañeda decision.
2) [Provide attachment.]

Theory, Principles, and Research. Once the specific provision(s) to be waived are identified, the application should describe the theory, principles, research, or other evidence which support the alternative program proposed. Evidence might come from pilot programs or practices used in the district or in other districts, as well as from published research. The principles or theory upon which the program is built should be recognized as sound by some experts in the field or at least deemed to be a legitimate experimental strategy.

In determining whether primary language instruction is or is not necessary, districts should link this determination to individual student assessed needs. Student assessed needs are determined at the district's discretion; however, such determinations should be based upon objective information. Items for districts to consider may include the following: 1) written and oral assessments of English proficiency, 2) performance assessments based upon locally-determined performance standards of academic achievement, 3) written and oral assessments of primary language proficiency, 4) teacher evaluations of the student's work, and 5) other standardized norm-referenced measures of the student's achievement.

If a district proposes a program for English learners which provides no direct instruction through the primary language, it should describe how the program's theory will lead to use of objective information for the selection and modification of instructional programs for individual students over time. Such objective information may include the same measures of language and academic achievement stated above.

Description of Program and Resources. The alternative instructional program needs sufficient detail to set forth the resources, staff, and training which will be dedicated to meeting the language and academic goals for English learners. For instance, if the program relies extensively on paraprofessionals, the application should describe their role, their special skills and training, how many will be deployed, and how teachers and paraprofessionals will be trained to work effectively together.

The application should describe staffing patterns, special materials and techniques to be used, and the proposed professional development efforts which will enable the district to design, implement, and evaluate the chosen program in the schools where it will be operated. This section should describe how the specific services for English learners change over time as they acquire more English proficiency. It would be useful to provide several sample student schedules for selected grade spans and English proficiency levels to illustrate how students will be served.
Evaluation of Educational Results. An evaluation plan must be included. It should include specific student performance objectives and standards of program effectiveness for learning English and academic achievement. The plan can include some or all of the following:

Compliance Review, Due Process, and Administrative Flexibility

The State Board of Education policy directs that the California Department of Education should focus all support and compliance activity on conformity by school districts with the requirements of federal law and applicable requirements of state law as they pertain to educational programs and services for English learners. Compliance requirements for all English learner programs with or without approved waivers on file are to emphasize results; i.e., after a reasonable period of time, the program must actually overcome English language barriers confronting the students and not leave them with substantive academic deficits. In the Board's view, what is a reasonable amount of time will vary according the age and educational background of the district's various English learners. Moreover, the Board expects that the standards for student achievement will have the same rigor for all English learner programs: for primary language programs, English learner programs operating under waiver, and alternative programs designed by local districts which have determined that primary language instruction is "not necessary."

In addition to the flexibility provided to districts by the general waiver authority of the Board, there are six options developed by the CDE and others which are available for local districts in conducting instructional programs for English learners. These six options are being widely used in California and are set forth in the enclosed chart. (See Enclosure C) The flexibility povided by these options or other appropriate programs may be used in combination with the flexibility offered by general waivers.

Additional Questions

The CDE has received the following two specific questions regarding the status of programs and services for English learners.

1. Did the State Board of Education policy eliminate the requirements to provide primary language instruction or support for English learners?

Federal law does not require primary language instruction or support. A provision of state law (which remained operative after the 1987 sunset of most program requirements for bilingual education) requires primary language instruction or support when it is determined to be necessary for individual students in accordance with locally adopted policies. However, this provision of law can be waived by the State Board of Education when so requested by local educational agencies. The Sate Board recognizes that for practical reasons, some local agencies are simply unable to provide instructional or support in the primary language of every pupils for whom the agencies have determined such instruction or support is necessary. The State Board also recognizes that some local agencies have determined that they can better serve the needs of English learners without primary language instruction or support. The State Board has expressed its commitment to approving requests to waive the post-sunset state requirement for primary language instruction or support where an applying local agency shows that "results are being or will be achieved." Local agencies wishing to apply for a waiver may do so and may wish to use this advisory for guidance.

2. How does the U.S. Department of Education, Office for Civil Rights (OCR) policy on services for English learners relate to the State Board of Education policy?

The two policies are aligned. The State Board policy reinforces the Castañeda standard applied by OCR as the ultimate test of appropriateness of all programs for English learners; i.e., that (1) the program is based on a sound theory; (2) adequate procedures, resources, and personnel are provided to implement the program; and (3) evaluation shows that, after a reasonable period, students actually learn English and do not suffer any substantive academic deficits.(3)

Please address additional questions regarding this advisory or about the general waiver application described above to the Complaints Management and Bilingual Compliance Unit (CMBC), at (916) 657-4674 or FAX: (916) 657-3112. For technical assistance on compliance issues for English learners, contact the CMBC consultant assigned to your county or district. (Please see Enclosures D and E.)


A. California State Board of Education, Policy Statement on Educational Programs and Services for Limited-English Proficient Students. July 14, 1995.

B. General Waiver Application Packet, July 1995

C. English Learner Options D. Contact List for English Learner Services

E. CMBC Assignments for Technical Assistance


Castañeda v. Pickard (5th Cir. 1981) 648 F.2d 989.

Office of Administrative Law Determination No. 94-1, issued pursuant to Government Code Section 11347.5; Title 1, California Code of Regulations, Chapter 1, Article 3, Sections 121-128. Office of Administrative Law, December 22, 1994.

Opinion of John K. Van De Kamp No. 87-1001. California Attorney General, January 20, 1988.

Policy Statement on Educational Programs and Services for Limited-English Proficient Students. Sacramento: California Department of Education, Revised July 14, 1995.


1. "Limited-English proficient students" and "English learners" are synonymous and are used interchangeably in the Board's policy statement. The Board recognizes that the term "English learners" is becoming more widely used because it does not imply that the identified students are in any way limited participants in the educational process.

2. Note that district bilingual advisory committees are to be consulted on any waiver application related to programs for English learners.

3. The policies agree that the evaluation requirement applies equally to all programs for English learners -- those that use primary language instructional methodologies and those that do not. Local agencies are expected to use evaluation results to modify and improve programs that are not effective.

Last uploaded on Monday, June 09 1997