Education of Limited English Proficient and Recent Immigrant Students: Provisions in the No Child Left Behind Act of 2001

Education of Limited English Proficient and
Recent Immigrant Students: Provisions in the
No Child Left Behind Act of 2001
Updated January 11, 2007
Jeffrey J. Kuenzi
Analyst in Social Legislation
Domestic Social Policy Division

Education of Limited English Proficient and
Recent Immigrant Students: Provisions in the
No Child Left Behind Act of 2001
The No Child Left Behind Act of 2001 (NCLBA, P.L. 107-110) represents a
major overhaul of federal programs for the education of limited English proficient
and recent immigrant students. Programs for bilingual and immigrant education
under the Elementary and Secondary Education Act of 1965 (ESEA) were
consolidated and underwent several important changes with regard to the funding
mechanism, method of instructional delivery, and focus on educational outcomes and
The NCLBA consolidated several competitively awarded grants in the Bilingual
Education Act and a formula grant in the Emergency Immigrant Education Act
(ESEA, Title VII, Parts A and C) into a single population-based formula grant. The
new Language Acquisition State Formula Grant Program (ESEA, Title III) allocates

80% of funding according to the population of limited English proficient (LEP)

students and 20% according to the population of recently arriving immigrants.
The law gives state and local educational agencies greater flexibility in the
design and administration of language instructional programs and removes language
in Title VII that encouraged bilingual instruction methods (i.e., curricula that develop
proficiency in more than one language). At the same time, the law develops and
focuses greater attention to the achievement of English proficiency.
Among many amendments to pupil assessment, the NCLBA builds upon
language in the 1994 ESEA amendments. The law increases the reporting
requirements for language and academic assessments as well as the accommodations
under which those assessments are given to LEP pupils. Recipients of Title III
money are also subjected to greater accountability standards tied to Title I adequate
yearly progress (AYP) provisions.
In the first year of its existence, funding for Title III was dramatically increased
over the previous year’s Title VII appropriation — from $460 million in FY2001 to
$665 million in FY2002. Since that time, the appropriations for the program have
remained stable — $684 million in FY2003, $681 million in FY2004, $676 million
in FY2005, and $669 million in FY2006.
Title III, along with the rest of the ESEA, will likely be considered for
reauthorization by the 110th Congress; however, this report will not be updated.
Rather, legislative developments in this area will be tracked in a forthcoming CRS

In troduction ......................................................1
Demographic Trends...........................................1
Student Assessment............................................2
Title III Provisions.................................................3
Formula Grants...............................................3
Grants to States...........................................4
Continuation Awards and Reservations.........................4
Data for Determinations.....................................4
Subgrants to Eligible Entities.................................4
Flexibility and Accountability....................................5
Local Plans...............................................5
Reporting Requirements....................................5
Academic and LEP Assessments..............................5
Achievement Objectives....................................5
Accountability Provisions...................................6
Parental Notification.......................................6
ED Policy Implementation.......................................6
Funding .........................................................8
List of Tables
Table 1. Language Acquisition State Grants.............................8

Education of Limited English Proficient and
Recent Immigrant Students: Provisions in
the No Child Left Behind Act of 2001
The Language Acquisition State Grant Program under Title III of the Elementary
and Secondary Education Act of 1965 (ESEA) as amended by the No Child Left
Behind Act (NCLBA) contains provisions intended to address the specific
educational needs of limited English proficient (LEP) students and students who have
recently immigrated to the United States.1 Title III represents a major overhaul of
federal programs for LEP students formerly provided under ESEA, Title VII, Parts
A and C.
One of the most significant policy changes made in this part of the law (P.L.
107-110) was the shift from several competitively awarded grants to a single
population-based formula grant. State educational agencies (SEAs) and local
educational agencies (LEAs) were also given greater flexibility in the design and
administration of language instructional programs. At the same time, program
objectives were more narrowly defined and were subject to new accountability
standards as well as parental notification requirements. Appropriations for this
program increased nearly 45% from $460 million in FY2001 to $665 million in
FY2002 and leveled off at $686 million for FY2003, $681 million in FY2004, $676
million in FY2005, and $669 million in FY2006.
These amendments occurred at the end of a decade that saw two important and
potentially conflicting developments with regard to the education of LEP students.
The first concerns rapid growth of the non-native English speaking student
population. The second involves increasing pressure to conduct assessments and
hold schools accountable for academic achievement.
Demographic Trends
The population of foreign-born individuals residing in the United States
increased by more than 50% during the 1990s — from 20 million in 1990 to 31
million in 2000.2 In fact, the growth of this group accounts for nearly half of the
nation’s overall population growth during the decade — from 249 to 274 million.

1 In this report these two groups of students will be referred to as LEP students.
2 U.S. Census Bureau, 1990 and 2000 Census Summary Files.

This population trend has been nearly matched by a 43% increase in the number
of U.S. residents who report having poor English-speaking ability. Of the 45 million
individuals who spoke a language other than English at home in 2000, 20 million
(44%) said they spoke English less than “very well.” In 1990, of the 32 million who
spoke non-English languages at home, 14 million (44%) spoke English less than
“very well.”3
School enrollment data suggest that the increase in LEP students has been even
more rapid. The U.S. Department of Education’s National Clearinghouse for
Bilingual Education estimates that LEP enrollment in U.S. schools during the 1999-

2000 academic year was 4 million students — up from 2 million during the 1989-

1990 academic year.4

Student Assessment
Simultaneous with the influx of immigrants and students with limited English
skills, there has been growing pressure on SEAs and LEAs to develop academic
assessments and require that schools meet performance standards. In addition to
education policies adopted in most states,5 the Improving America’s Schools Act of

1994 (IASA, P.L. 103-382) directed states to develop and implement “standards-

based” assessments. In the late 1990s, schools were facing increasing pressure to test
their students and, in some cases, demonstrate improvement in student achievement.
The IASA also required “reasonable adaptations and accommodations” be made
for LEP pupils. The purpose of these accommodations was to provide an accurate
and reliable measure of students’ knowledge in core academic areas (in subjects other
than English, such as math and science). The NCLBA also contains such
accommodations but stipulates that they can only be made during an LEP pupil’s first
three years in U.S. schools. After three consecutive years in U.S. schools, LEP
students are to be assessed in English.6

3 Ibid.
4 U.S. Department of Education, Annual Surveys of the States’ Limited English Proficient
Students and Available Educational Programs and Services, 1990-1998.
5 According to Assessment and Accountability Systems: 50 State Profiles, by the Consortium
for Policy Research in Education, all but one state (Iowa) required assessments by 2001.
6 ESEA, §3113(b)(3)(C)(x). The assessment of LEP students will be discussed in greater
detail later in this report. For further information on overall NCLBA assessments see CRS
Report RL31407, Educational Testing: Implementation of ESEA Title I-A Requirements
Under the No Child Left Behind Act, by Wayne Riddle.

Title III Provisions
The NCLBA also raised the stakes for poor student assessment outcomes and
failure to meet progressively higher levels of academic performance. Schools must
develop academic standards, establish levels of adequate yearly progress (AYP), and7
face serious consequences for failing to achieve that progress. LEP students and the
LEAs that serve them face particularly difficult challenges in achieving the goals set
by the NCLBA.
According to the conference report (H.Rept. 107-334) for the legislation, the
specific goals set by Title III are to:
!help ensure that LEP and recent immigrant children develop English
!assist these students in achieving academic standards in core subject
!develop language instruction education programs that assist SEAs
and LEAs in teaching LEP and recent immigrant students,
!assist in preparing students to enter all-English instruction settings,
!promote parental and community participation in these programs,
!streamline programs designed to provide language instruction,
!hold SEAs and LEAs accountable for annual increases in English
proficiency and core academic content, and
!provide SEAs and LEAs flexibility in implementing these programs.
Formula Grants
To meet these goals, the NCBLA created an entirely new way of funding
programs that serve LEP students. That is, Title III consolidated several Title VII
programs into a single formula grant program (for fiscal years in which
appropriations reach or exceed $650 million).8

7 For more information, see CRS Report RL31487, Education for the Disadvantaged:
Overview of ESEA Title I-A Amendments Under the No Child Left Behind Act, by Wayne
8 Title VII provided funds to SEAs and other eligible entities for numerous distinct language
instructional programs and services. Part A, the Bilingual Education Act (BEA), awarded
competitive grants for bilingual instructional and support services, professional development
and foreign language instruction. Part C, the Emergency Immigrant Education Program,
awarded formula grants to LEAs that recently experienced a large influx of immigrant
students. Part B, the Foreign Language Assistance Program, is continued in the current
reauthorization under Title V, Part D, Subpart 9. For further details on Title VII programs,
see CRS Report 98-501, Bilingual Education: An Overview; CRS Report RS20042, The
Federal Emergency Immigrant Education Program; and CRS Report RL31401, Provisions
for Limited English Proficient Students in H.R. 1, as Passed by the House and Senate, all
by Patricia Osorio-O’Dea.

Grants to States. Grants are distributed to the 50 states, the District of
Columbia, and Puerto Rico based on proportions of their LEP and recent immigrant
populations relative to national counts of these populations. No state can receive a
grant less than $500,000.9 The grant to Puerto Rico cannot exceed 0.5% of the total
available for state distribution. Each state’s share of the funds available for
distribution (i.e., after continuation awards and reservations are removed) is
described by the following equation:
State L EP Pop State RIM Pop__. __.⎛ ⎞ ⎛ ⎞
State Share_ *. *.= ⎜ ⎟ + ⎜ ⎟08 0 2
US LEP Pop US RIM Pop.._ _ . .._ _ .⎝ ⎠ ⎝ ⎠
“State_LEP_Pop.” equals the number of LEP children in a state,
“State_RIM_Pop.” equals the number of recent immigrant children in a state,
“U.S._LEP_Pop.” equals the number of LEP children in all states, and
“U.S._RIM_Pop.” equals the number of recent immigrant children in all states.
Continuation Awards and Reservations. LEAs and other eligible
recipients of Title VII grants under Subparts 1 and 3 of Parts A and C whose grants
have not yet expired will continue to receive funds. These continuations as well as
three reservations are set aside before state grants are distributed. The first
reservation, a set-aside of 6.5%, provides (1) support for professional development
through the National Professional Development Project and (2) continued funding
of the National Clearinghouse for Bilingual Education (renamed National
Clearinghouse for English Language Acquisition and Language Instruction
Programs). A second set-aside of 0.5% (or $5,000,000, whichever is greater)
provides grants to schools that predominantly serve Native American and Alaska
Native children. A third set-aside of 0.5% is reserved for schools in the Outlying
Data for Determinations. The Secretary is given the discretion to determine
(between U.S. Census Bureau data and state-submitted data) the most timely and
accurate source of data on which to base grant distribution. In the implementation
thus far, population estimates for the number of LEP children were taken both from
data available through the Census Bureau while estimates for the number of recent
immigrant children were taken from data submitted by SEAs.
Subgrants to Eligible Entities. Within-state distribution of funds is based
on the number of LEP children only — regardless of their immigrant status.
However, states can reserve up to 15% for grants to eligible entities containing
schools that have recently experienced large influxes of immigrant children. An
eligible entity is defined as one or more LEAs in collaboration with an institution of
higher education, a community-based organization, or an SEA. Before formula
allocation, SEAs can reserve an additional 5% for state activities such as professional

9 For the purposes of this report, the term “state” includes the District of Columbia and the
Commonwealth of Puerto Rico.

development, planning, evaluation, administration, technical assistance, and the like.
The minimum grant to an eligible entity (hereafter referred to simply as an LEA) is
Flexibility and Accountability
Title III also gave LEAs the autonomy to create local educational plans and
established accountability provisions to be enforced by the Secretary of the U.S.
Education Department (ED).
Local Plans. Local control of these plans is intended to give LEAs the
flexibility to cater programs to the strengths and needs of their teachers and students.
To receive a grant, each LEA must submit a plan to its SEA describing how it intends
to use the funds for language instruction programs and activities designed to meet the
goals and objectives laid out in Titles I and III. No specific methods of instruction
are mandated under Title III. For example, schools are not required to teach students
in their native language.10
Reporting Requirements. On the contrary, according to Section
3121(c)(1)(B), LEAs receiving Title III funds must submit program evaluations that
report on LEP students who “have transitioned into classrooms not tailored to limited
English proficient children.” These evaluations, submitted at the end of every second
fiscal year, must report data on the number of LEP students participating in language
acquisition programs and the proportion of these students who have transitioned out
of these programs. After approving these LEA plans and reports, SEAs must submit
them to the ED for approval.
Academic and LEP Assessments. Title I of the ESEA requires that LEAs,
“will, beginning not later than school year 2002-2003, provide for an annual
assessment of English proficiency (measuring students’ oral language, reading, and
writing skills in English) of all students with limited English proficiency”
(§1111(b)(7)). In addition to these assessments that test for limited English
proficiency, academic assessments of students’ skills in math as well as reading and
language arts are required of all students. LEP student may receive language
accommodations for the math portion of the assessment; however, those who have
attended U.S. schools for three consecutive years must take reading and language arts11
assessments using tests written in English.
Achievement Objectives. SEAs must develop annual measurable
achievement objectives that reflect (1) the amount of time individual children are
enrolled in programs, (2) annual increases in the number or percentage of children
learning English, and (3) the number or percentage of students receiving waivers for

10 Under the four instructional services grants of the BEA (Title VII, Part A, Subpart 1), not
more than 25% of the funds could be used for local programs that were “special alternative
instructional programs” (i.e., that did not use students’ native language in instruction).
11 LEAs may test LEP students in non-English languages for an additional two years (i.e.,
five years total) if, on an individual pupil basis, it is determined that such accommodations
would a provide more accurate and reliable assessment (§1111(b)(3)(C)(x)).

reading or language arts assessments. These objectives are all tied to provisions for
assessments and adequate yearly progress under Title I, Part A, Section 1111(b).12
Three exceptions to these objectives can be made for LEAs that (1) experience
significant increases in the number of LEP and immigrant children, (2) enroll a
“statistically significant” number of immigrants who lacked access to education in
their home country, or (3) enroll a “statistically significant” number of immigrants
seeking refuge from war or natural disaster (§3122(a)(3)(B)).
Accountability Provisions. SEAs that find LEAs failing to meet these
objectives for two consecutive years can require the LEA to develop an improvement
plan. The SEA must provide technical assistance and consult with the failing LEA
during the development and implementation of this plan. LEAs found to be failing
for four consecutive years can be forced to modify their language instruction
program, have their funds withdrawn, and have relevant personnel replaced by the13
Parental Notification. In addition to requiring LEAs to develop their local
plans in consultation with parents and community groups, Title III provisions require
that LEAs inform parents within 30 days of the beginning of the school year (or two
weeks during the school year) if their child is identified for participation in a
language instruction program. LEAs must also describe to such parents several
aspects of the program, including the reasons for their child’s LEP classification,
their child’s level of English proficiency, the methods of instruction and exit
requirements of the program, and their right to remove their child from the program.14
ED Policy Implementation
In February of 2003, ED issued non-regulatory guidance on the Title III state
grant program.15 This was the second piece of non-regulatory guidance — the first
explained what SEAs and LEAs had to include in their grant applications. The
second document laid out the standards, assessments, and accountability provisions
described in the pages above.
ED has more recently announced two “new policies” regarding the
implementation of the academic assessment and AYP provisions of the NCLBA.16
In a February 19, 2004 press conference, the Secretary described these new policies
as follows:

12 For more information, see CRS Report RL31487, Education for the Disadvantaged:
Overview of ESEA Title I-A Amendments Under the No Child Left Behind Act, by Wayne
13 Ibid.
14 The Office of English Language Acquisition at ED has released a policy statement on this
topic, available at [].
15 Available at [].
16 Available at [].

The new flexibility will allow LEP students, during their first year of enrollment
in U.S. schools, to have the option of taking the reading/language arts content
assessment in addition to taking the English language proficiency assessment.
They would take the mathematics assessment, with accommodations as
appropriate. States may, but would not be required to, include results from the
mathematics and, if given, reading/language arts content assessments in AYP
Since LEP students exit the LEP subgroup once they attain English language
proficiency, states may have difficulty demonstrating improvements on state
assessments for these students. Accordingly, the other new flexibility would, for
AYP calculations, allow states for up to two years to include in the LEP17
subgroup students who have attained English proficiency.
By exercising the option not to give first-year LEP students the reading/language
arts assessment, LEAs could more easily meet the requirement in the AYP provisions
that at least 95% of all pupils in each demographic group within each school must be18
included in assessments. Waiving the requirement that these first-year LEP pupil
content assessments be counted in AYP calculations might also make meeting the
requirements easier. In the later stages of AYP implementation (as states try to meet
progressively higher levels of performance), doing so would presumably increase the19
proportion of LEP students scoring at an adequately high level.
Exercising the second policy option would seem to have a definite positive
effect on state’s ability to meet AYP requirements. Former LEP students recently
moved out of that subgroup would presumably score lower on average (particularly
on reading assessments) than those who never were classified as LEP. Thus,
including former LEP pupil assessments with those a non-LEP subgroup would lower
that subgroup’s average score. Likewise, including former LEP pupil assessments
with those still in the LEP subgroup would raise that subgroup’s average score.
The first of these new policies might have the effect of buffering states and
LEAs, in particular, from the effects caused by a large influx of LEP in-migrants
from other areas. Being able to hold the new students out of AYP calculations would
allow such LEAs to demonstrate the progress they’ve made with the LEP students
that have been in their schools for a year or two. The second of these new policies
will have the effect of smoothing the requirement that schools must transition LEP
pupils into non-LEP classrooms. That is, it may remove one disincentive to
reclassifying LEP students as non-LEP students.

17 The text from this press conference is available at [

2004/02/02192004.html ].

18 For more information, see CRS Report RL31487, Education for the Disadvantaged:
Overview of ESEA Title I-A Amendments Under the No Child Left Behind Act; and CRS
Report RL31407, Educational Testing: Implementation of ESEA Title I-A Requirements
Under the No Child Left Behind Act, both by Wayne Riddle.
19 However, ED has not made clear whether states which do this would also be required to
hold first-year LEP students out of calculation of the “starting point” which is based on data
for the 2001-2002 school year (§1111(2)(E)).

Table 1 shows the formula-based allocation of these funds to each state for the
last three fiscal years. Note that these estimates were produced on October 25, 2006,
and thus were based on the President’s FY2006 request of $675,765,000 rather than
the actual FY2006 appropriation of $669,007,350.
Table 1. Language Acquisition State Grants
State or other20052006from 2005
area2004 ActualEstimateEstimateestimate
Alabama$1,878,554$2,969,385 $3,337,650 $368,265
Alaska$86,161$835,169 $506,735 -$328,434
Arizona$16,453,934$16,053,667 $18,628,864 $2,575,197
Arkansas$1,871,562$1,986,077 $2,170,133 $184,056
California$161,549,115$149,565,827 $167,446,440 $17,880,613
Colorado$7,069,901$9,947,707 $11,277,872 $1,330,165
Connecticut$5,380,812$4,440,248 $4,784,676 $344,428
Delaware$725,465$876,486 $889,114 $12,628
District of$680,354$922,000 $947,074 $25,074
Florida$36,272,809$38,999,401 $39,451,135 $451,734
Georgia$11,254,952$13,281,802 $10,873,006 -$2,408,796
Hawaii$2,186,577$1,645,216 $2,254,592 $609,376
Idaho$1,297,826$2,107,363 $1,401,894 -$705,469
Illinois$25,929,181$24,732,083 $29,941,530 $5,209,447
Indiana$4,276,401$7,644,463 $6,883,187 -$761,276
Iowa$2,193,017$2,907,230 $2,369,957 -$537,273
Kansas$2,975,681$2,417,540 $3,001,512 $583,972
Kentucky$1,812,413$2,404,457 $2,427,174 $22,717
Louisiana$2,328,221$3,317,197 $1,322,119 -$1,995,078
Maine$500,000$500,000 $500,000 —
Maryland$5,867,566$6,654,183 $8,254,527 $1,600,344
Massachusetts$9,673,186$11,258,663 $12,943,819 $1,685,156
Michigan$8,220,261$11,540,302 $10,047,647 -$1,492,655
Minnesota$6,108,755$6,595,273 $7,232,358 $637,085
Mississippi$971,870$1,017,471 $753,405 -$264,066
Missouri$3,130,233$4,538,410 $5,088,266 $549,856
Montana$500,000$500,000 $500,000 —
Nebraska$1,863,656$2,143,231 $2,539,003 $395,772

State or other20052006from 2005
area2004 ActualEstimateEstimateestimate
Nevada$5,706,721$6,865,410 $9,110,190 $2,244,780
New Hampshire$532,764$1,056,420 $795,084 -$261,336
New Jersey$16,278,278$20,186,729 $21,314,703 $1,127,974
New Mexico$5,494,409$5,347,129 $4,714,268 -$632,861
New York$47,907,904$53,923,317 $52,235,038 -$1,688,279
North Carolina$8,883,786$9,979,375 $11,484,558 $1,505,183
North Dakota$500,000$500,000 $500,000 —
Ohio$6,438,717$6,567,211 $8,744,892 $2,177,681
Oklahoma$2,916,153$4,869,319 $3,517,558 -$1,351,761
Oregon$4,951,822$5,300,358 $5,768,467 $468,109
Pennsylvania$9,383,763$8,982,966 $11,518,404 $2,535,438
Rhode Island$1,768,126$2,375,164 $2,306,473 -$68,691
South Carolina$2,442,675$2,588,131 $3,007,497 $419,366
South Dakota$534,980$515,986 $701,006 $185,020
Tennessee$3,686,302$4,546,936 $4,235,980 -$310,956
Texas$74,350,392$82,422,240 $89,353,183 $6,930,943
Utah$3,396,597$2,888,015 $4,318,842 $1,430,827
Vermont$500,000$500,000 $500,000 —
Virginia$7,273,394$9,222,809 $9,094,619 -$128,190
Washington$9,607,031$8,547,438 $11,728,407 $3,180,969
West Virginia$500,000$610,998 $500,000 -$110,998
Wisconsin$4,914,400$6,171,980 $6,621,285 $449,305
Wyoming$500,000$500,000 $500,000 —
American Samoa$1,161,870$1,152,575 $1,152,575 —
Guam$1,199,517$1,189,921 $1,189,921 —
Northern Mariana$912,447$905,147 $905,147 —
Puerto Rico$2,725,136$2,895,823 $3,117,307 $221,484
Virgin Islands$132,241$131,183 $131,183 —
Freely Associated — — — —
Indian set-aside$5,000,000$5,000,000 $5,000,000 —
Other (non-State$127,781,638$88,221,851 $43,924,724 -$44,297,127
Total$681,215,000$675,765,000$675,765,000 —
Source: U.S. Department of Education, Budget Service, Oct. 25, 2005.