Ruling in a case filed two years ago by Rhode Island Legal Services and the American Civil Liberties Union of Rhode Island, a Superior Court judge has found that the Council of Elementary and Secondary Education (“Council”) and the state Department of Education violated the rights of students who were English Language Learners (EL) by providing them less support than the law requires. Judge Netti Vogel ordered the Department to consider what compensatory services the students were owed.


The dispute dates back to 2016 when attorneys for RILS and the ACLU-RI filed an administrative complaint with RIDE on behalf of parents of English Learners in Providence whose children had been provided with few or no direct services by a certified EL teacher. Providence claimed that the children were being adequately served by educators who consulted with an EL certified teacher as infrequently as once every two months and for no specified amount of time. The complaint argued that this “Consultation model” was inadequate under state regulations, and further that it discriminated against children with disabilities by denying them even the less-than-adequate EL services provided to students without disabilities.


In 2018, the U.S. Department of Justice independently concluded that Providence’s “Consultation model” was “educationally unsound” and invalid under federal laws, but both RIDE and the Council refused to take that determination into account in claiming that its use was lawful under state regulations. It was after that decision by the Council that RILS attorney Veronika Kot and ACLU of RI cooperating attorney Ellen Saideman filed suit in Superior Court against the program.  The suit was filed a week after the Council rejected a request from 15 organizations to amend its regulations to bar this type of inadequate service to EL students.


Reviewing the “Consultation model” program in depth, Judge Vogel held that the school district had “violated the clear and unambiguous language” of state regulations by


“fail[ing] to respect the rights of ELLs to receive special education ‘so as to ensure that the students’ educational needs are met on a basis equal to that provided to other students’ and failed to ‘ensure that programs for English Language Learners are based on sound educational theory and appropriately supported, with adequate and effective staff and resources, so that the program may reasonably be expected to be successful.’” (ellipses and brackets omitted)


In a court brief filed in the case, the RILS and ACLU attorneys had argued that by “inviting untrained general or special educators to provide ‘specialized language instruction’ they have not been prepared to provide, the decision of the Council effectively demolishes the entire state regulatory scheme intended to ensure the quality of EL services. In fact, it opens a loophole that swallows the entire quality assurance scheme of Rhode Island’s regulations.”


RILS attorney Kot said today: “This is a critical decision that benefits all English Learners in Rhode Island. It recognizes that they are entitled to receive direct services from teachers certified in the teaching of English Learners. It recognizes that special education students who are also English Learners must receive services that are appropriate to their particular needs, and that any program must be based on sound research and adequate resources. Because the rights of these students have long remained unaddressed, it is hoped that both Providence and the State Department of Education act quickly to make these students whole.


ACLU of RI cooperating attorney Saideman added: “Judge Vogel's opinion could not be clearer. I hope that the Commissioner and Providence will now do the right thing and focus on providing EL students with the compensatory services that they are entitled to under this opinion.”


According to the DOJ findings, there were nearly 400 students who were placed in the Consultation Model and received practically no EL services. In ordering the state to consider appropriate compensatory services to the three named plaintiffs, Judge Vogel’s decision left open the possibility of requiring the state to provide similar services to other affected students.



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