Students who are not proficient in English — referred to as English Language Learners or "ELLs" by the Department of Education — have a right to receive bilingual education or English as a Second Language (ESL) classes. These rights are spelled out in detail in the online pamphlet published by Advocates for Children of New York.  Below is a general description of the kinds of programs available.

On this page: ESL / bilingual education | Who is eligible? | Placement

English as a Second Language and bilingual education

What is English as a Second Language (ESL)? ESL is a program in which students for one to three periods a day learn to speak, read and write English from a trained teacher, who may or may not speak the child's native language. Students are taught completely in English. How many ESL periods a student receives a day depends on the student's grade level and proficiency in English. The student attends regular courses in English the rest of the day. Alternatively, parents may choose to enroll their children in bilingual instruction or dual language instruction.

What is bilingual education? Bilingual education classes provide students with ESL instruction as well as instruction in their native language. This way, students can learn academic subjects in their native language while they are learning English. This approach is called the transitional model because as students become more proficient in English, native language instruction decreases.

What is dual language instruction? In some schools students can participate in dual language programs, which put native English speakers and speakers of another language (Spanish, Chinese, French, Korean, Russian, Haitian Creole) together in one classroom with the goal that each group learns the other language. Classroom instruction can alternate between the two languages by day, or half day, such as students learning in English during the morning and the other language during the afternoon, or alternating every other week. Ideally, in a dual language program, half the students will be native English speaking students and half will be native, or at least fluent, speakers of the other language.

Who is eligible for ESL/bilingual education?

1. When your child enters school you and your spouse must complete a Home Language Identification Survey (HLIS).
2. If you respond that a language other than English is used in your home, then your child must take a Language Assessment Battery-Revised (LAB-R) test in English.
3. If your child scores below a minimum cut-off on the LAB-R, he or she is eligible for either bilingual education or ESL, but must at a minimum take ESL.
4. If your child is identified as needing bilingual education or ESL based on his/her LAB-R score, he or she must be placed in ESL or bilingual education within 10 days of enrollment in the school.

Your right to choose: You have the right to choose whether to enter a bilingual education class or ESL class. Every school must offer an ESL program, but not every school is required to have a bilingual education class. If you would like your child to attend a bilingual education class and your child's school does not offer one in your child's native language, you have the right to transfer your child to another school in the district that does offer a bilingual class. That right is guaranteed by a state regulation. If there is no school in your district that offers a bilingual class in your child's native language, you must enroll your child in ESL. If there is an appropriate bilingual class in another district, you may apply for a transfer to that district but are not guaranteed one.

Regardless of what program you choose for your child, you must express your choice in writing to the school. See the section below on "Placement in Bilingual Education or ESL" for more information on the process for choosing a program.

Which schools have bilingual education programs? Elementary and middle schools that have 15 or more ELL students who speak the same language in the same grade or in two consecutive grades are required to have a bilingual education program. High schools that have 20 or more ELL students in the same grade who speak the same language are required to create a bilingual program.

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How is my child placed in bilingual education or ESL?

Every child who is identified as needing bilingual education or ESL must be placed in the program of the parent's choice within 10 school days of the child's enrollment. The school must also provide parents with an orientation on their rights and program options within 10 school days of the child's enrollment. At the end of this orientation, you will be given a Parent Assurance/Survey Form asking for your selection of a bilingual education, dual language or ESL program.

If you prefer a bilingual education program for your child but you know that your child's district does not have one, you should select bilingual education anyway. This way your child will be placed in ESL but the district will count the selections of all parents who want bilingual education. If there are enough parents expressing a preference for bilingual education, the district will create a bilingual education program for the following year.

If you do not make your selection in writing to the school within 10 school days of your child's enrollment, he or she will automatically be placed in bilingual education. If your child's school does not have bilingual education, the school will place your child in ESL.

You may choose to change your child's placement for the next year. However, Department of Education policy discourages parents from doing so because its research shows that students who switch from one program to another do not perform as well as students who stay in one program.

Your right to notification and information: The school must notify you in writing (in your native language and in English) that your child requires bilingual education or ESL and provide you with an orientation explaining your rights and the programs that are available. The school should make an effort to meet with you at least twice a year to help you understand your child's program and how you can help your child. You should receive all school related information in your native language, according to a state regulation.

Support services: Every ELL student has the right to support services to achieve a satisfactory level of academic performance. These services may include counseling, tutoring, group counseling, parent counseling, and home visits. Where appropriate, these services should be provided in the child's native language. Title I funds also provide for extra services for ELL students. If your school receives Title I funds then it should be providing extra services for your child.

Other options: For older students, there are schools for newcomers who have been in the United States for four years or less. Use our Find a School section to search for high schools that serve new immigrants. Contact the Office of English Language Learners or Advocates for Children for more information.

Special education students: Special education students also have a right to bilingual education and ESL. However, the LAB-R score is not the sole determining factor for whether a special education student requires bilingual education or ESL. Some students may score below the minimum cut-off score on the LAB-R because of a learning disability and not because of the lack of English proficiency. Therefore, a special education student's Individualized Education Program (IEP) team (which includes the parent) decides whether a special education student needs bilingual education or ESL. In making this decision the IEP team must consider a wide range of factors including the child's evaluations and information from service providers. In addition, an IEP team can determine that a special education student should receive one service in English but another service in his or her native language. For example, a student could receive bilingual speech therapy but only monolingual English occupational therapy. The evaluation and all relevant material must be translated into the parents' known language. For more information, see our page on special education.

Checking your child's progress: Your child should take the New York State English as a Second Language Achievement Test (NYSESLAT) at the end of every year. If your child tests above a minimum cut-off score on the NYSESLAT, he or she can be referred out of ESL or bilingual education.

Phasing out of ESL or bilingual education: Department of Education policy requires districts to obtain written consent from a parent before continuing bilingual education or ESL for a student beyond three years. However, as long as a student's NYSESLAT score is below the minimum cut-off, the student has the right to continue taking bilingual education or ESL.

Transitional services: A state regulation requires that schools provide supports and services for the first year after students leave an ESL class or bilingual education program. For information about promotion to the next grade level, see our page on promotion. For information about high school graduation requirements, see our page on graduation.

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