[Federal Register Volume 78, Number 42 (Monday, March 4, 2013)]
[Notices]
[Pages 14084-14087]
From the Federal Register Online via the Government Printing 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