DEPARTMENT OF EDUCATION
SUPTS. MEMO NO. 280
November 14, 2008
Patricia I. Wright
Superintendent of Public Instruction
Guidance on Use of Funds for Implementation of Requirements for Limited English Proficient (LEP) Students under Title III, Part A, of the No Child Left Behind Act of 2001
On October 2, 2008, the United States Department of Education (USED)issued a guidance letter to states regarding the use of funds for implementation of the requirements for Limited English Proficient (LEP) students under Title III, Part A, of the No Child Left Behind Act of 2001(NCLB).
guidance is based on the requirement established under Title VI of the Civil
Rights Act of 1964 for states and school divisions to provide language
instruction educational programs and services such that limited English
proficient (LEP) students are able to participate meaningfully in the public
education program. As a result, the recent
guidance document states that funds available under NCLB should supplement, not
supplant, programs and services already in place. The guidance will be applied in
text of the guidance document is provided as an attachment; however, the four areas
of greatest impact for school divisions in
The guidance states that any efforts by a local educational agency (LEA) or school to reduce state and local funds expended to implement language instruction educational programs serving limited English proficient (LEP) students based on the receipt of federal Title III grant funds violates the non-supplanting provision of Title III. An example is given in which Title III subgrantees, for budgetary reasons, use Title III funds to pay the salaries of their English as a Second Language (ESL) teachers. The guidance says that typically ESL teachers provide the core language instruction educational program services and their salaries are the responsibilities of states and LEAs not the federal government.
School divisions are reminded that the Code of Virginia's Standards of Quality (SOQ), Section 22.1-253.13:2(F), allocates state funding for teachers of students with limited English proficiency. The Code states that in addition to the positions supported by basic aid and those in support of regular school year programs of prevention, intervention, and remediation, state funding, pursuant to the Appropriation Act, shall be provided to support 17 full-time equivalent instructional positions for each 1,000 students identified as having limited English proficiency.
The guidance states that generally a state or LEA cannot use Title III funds to pay for the costs of developing ELP assessments without violating the non-supplanting requirement set out in Section 3115(g). The only exceptions to this are: 1) if a state is developing an assessment separate from the ELP assessment required under Title I; and/or 2) the costs of enhancing an existing ELP assessment required under Title I to align it with the state's ELP standards.
The guidance states that in general the costs of administering ELP assessments may not be paid with Title III funds, including funds reserved by the state for state-level activities. Title III state and subgrantee funds may not be used to pay for substitute teachers or materials or for the cost of scoring state ELP assessments if they are supplanting state or local funds used for these purposes. The only exception to this is if a state administers an additional ELP assessment other than the one required under Title I.
The guidance states that neither Title I nor Title III funds may be used for the development or administration of LEP screening or placement assessments if they are supplanting state or local funds used for these purposes. The rationale provided is that states and LEAs are required to identify and make placement decisions for LEP students without federal funding.
School divisions are reminded that the Code of Virginia's Standards of Quality (SOQ), Section 22.1-253.13:D(10)requires local school boards to identify students with limited English proficiency and enroll such students in appropriate instructional programs.
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