August 24, 2012
Dear County and District Superintendents:
The purpose of this letter is to remind you about the laws and regulations governing parental waivers as they relate to instruction for English learners (ELs).
California Education Code (EC) Section 305 requires that, except by parental waiver, all children be placed in English language classrooms. ELs are to be educated through sheltered English immersion during a temporary transition period not normally intended to exceed one year. Once ELs have acquired a good working knowledge of English, they shall be transferred to English language mainstream classrooms.
Per EC Section 310, the requirement to place an EL in an English language classroom may be waived with prior written informed consent, to be provided annually, of the child’s parent or legal guardian. Under approved parental waivers, children may be transferred to classes where they are taught English and other subjects through bilingual education techniques or other generally recognized educational methodologies permitted by law.
At any time, including during the school year, a parent or guardian may have his or her child moved into an English language mainstream classroom. This does not entail going through the waiver process. The parent or guardian need only request this placement (California Code of Regulations, Title 5 [5 CCR] Section 11301[b]).
Per 5 CCR Section 11309(a), all parents and guardians must be informed of the placement of their children in a structured English immersion program and must be notified of an opportunity to apply for a parental exception waiver. The notice shall include a description of the locally-adopted procedures for requesting a parental exception waiver, and any locally-adopted guidelines for evaluating a parental waiver request.
Under EC Section 311, a waiver may be allowed based on any one of the following three conditions:
(1) Children who already know English: The child already possesses good English language skills, as measured by standardized tests of English vocabulary comprehension, reading, and writing, in which the child scores at or above the state average for his or her grade level or at or above the fifth grade average, whichever is lower. Per 5 CCR Section 11309(e), if standardized assessment data is not available for the student, school districts may use equivalent measures as determined by the local governing board.
(2) Older children: The child is age 10 years or older, and it is the informed belief of the school principal and educational staff that an alternate course of educational study would be better suited to the child’s rapid acquisition of basic English language skills.
(3) Children with special needs: The child already has been placed for a period of not less than 30 calendar days during that school year in an English language classroom, and it is subsequently the informed belief of the school principal and educational staff that the child has such special physical, emotional, psychological, or educational needs that an alternate course of educational study would be better suited to the child’s overall educational development. A written description of these special needs must be provided and any such decision is to be made subject to the examination and approval of the local school superintendent, under guidelines established by and subject to the review of the local board of education and ultimately the State Board of Education. The existence of such special needs shall not compel issuance of a waiver, and the parents shall be fully informed of their right to refuse to agree to a waiver.
The school principal and educational staff may recommend a waiver based on age or special needs to a parent or guardian. Parents and guardians must be informed in writing of any such recommendation for an alternative program and must be given notice of their right to refuse to agree to a waiver. The notice shall include a full description of the recommended alternative program and the educational materials to be used for the alternative program as well as a description of all other programs available to the pupil. If the parent or guardian elects to request the recommended alternative program, he or she must comply with all procedures applicable to a parental exception waiver (EC 311(b) and (c); 5 CCR 11309[b]).
In cases where a waiver based on the age or special needs of the child is denied, the parents or guardians must be informed in writing of the reasons for denial and advised that they may appeal the decision to the local board of education if such an appeal is authorized by the local board of education, or to the court (5 CCR 11309[d]).
EC Section 306 provides the following definitions:
If you have any questions regarding this subject, please contact Karen Cadiero-Kaplan, Director, English Learner Support Division, by phone at 916-319-0938 or by e-mail at KCadieroKaplan@cde.ca.gov.
/s/ Signature on file
Lupita Cortez-Alcalá, Deputy Superintendent
Instruction and Learning Support Branch