English Language Learners (ELLs) are the fastest growing group in America’s schools. The debate over how to best serve them is largely dominated by fights over English-only versus bilingual instruction. This controversy is once again taking center stage, as states like California and Massachusetts reassess their language programs after a decade of English-only laws on the books. But once again, lost in the battle over language pedagogy is the fact that ELLs face educational challenges beyond language. Like any other student population, the ELL cohort includes students with disabilities who need special education services. In theory, two different statutes protect the rights of ELLs with disabilities: the Individuals with Disabilities Education Act (IDEA), and the Equal Educational Opportunities Act (EEOA), which guarantees assistance in overcoming language barriers. In reality, however, neither law adequately safeguards ELLs’ equal access to education. Rather, when students have both language and disability challenges, they fall through a gap that exists between the implementation of these two statutes.
To date, schools and courts have largely ignored the intersection of language and disability, operating as though the IDEA addresses one set of students and the EEOA an entirely different set. Many schools select and implement their English language acquisition programs without giving any thought to the unintended consequences on special education. This approach, sanctioned by courts, is both flawed and dangerous because a school’s chosen language program can either impede or enhance the accurate identification of students with disabilities. Even more worrisome, some schools use language acquisition as a justification to delay identification of ELLs with disabilities. While this is inconsistent with the intent of the IDEA, provisions of the IDEA, as interpreted by courts, do not adequately prevent it. Even worse, EEOA precedent may actually encourage such delays. As a result, students with dual challenges of language and disability do not receive the necessary educational services these two statutes are designed to provide. The mixed messages from statutes and courts can be resolved, but such cohesion requires reading the IDEA and EEOA together, not separately. This Article provides the specific analysis by which to do so.