1. (a) Each school district which has an enrollment of 20 or more limited English proficient students in any language classification in the same grade level district-wide shall offer a bilingual education program as described in subsection (b) of this section for the limited English proficient students in prekindergarten through the elementary grades who speak that language. "Elementary grades" shall include at least prekindergarten through Grade 5; sixth grade shall be included when clustered with elementary grades.

2. (b) A district shall provide a bilingual education program by offering:

   1. (1) a dual language program in prekindergarten through the elementary grades, as described in §89.1210 of this title (relating to Program Content and Design); or
   2. (2) an approved dual language program which addresses the affective, linguistic, and cognitive needs of the limited English proficient students, and which meets the requirements of the Texas Education Code, §29.055(a), as described in §89.1255 of this title (relating to Local Plan).
3. (c) Districts are authorized to establish a bilingual education program at grade levels in which the bilingual education program is not required under subsection (a) of this section.
4. (d) All limited English proficient students for whom a district is not required to offer a bilingual education program shall be provided an English as a second language program as described in subsection (e) of this section, regardless of the students' grade levels and home language, and regardless of the number of such students.

5. (e) A district shall provide an English as a second language program by offering:

   1. (1) an English as a second language program as described in §89.1210 of this title (relating to Program Content and Design); or
   2. (2) an approved English as a second language program which addresses the affective, linguistic, and cognitive needs of the limited English proficient students and meets the requirements of §89.1255 of this title (relating to Local Plan).
6. (f) Districts may join with other districts to provide bilingual education or English as a second language programs.

7. (g) Districts which are unable to provide a bilingual education program as required by subsection (a) of this section shall request from the commissioner of education an exception to the bilingual education program and approval to offer an alternative program. Approval of exceptions to the bilingual education program shall be negotiated on an individual basis and shall be valid for only the school year for which it was negotiated. This request will be submitted by a date determined by the commissioner of education and shall include:

   1. (1) a statement of the reasons the district is unable to offer the bilingual education program with supporting documentation;
   2. (2) a description of the proposed alternative modified bilingual education or intensive English as a second language programs to meet the affective, linguistic, and cognitive needs of the limited English proficient students, including the manner in which the students will be given opportunity to master the essential knowledge and skills required by Chapter 75 of this title (relating to Curriculum);
   3. (3) an assurance that certified personnel available in the district will be assigned to grade levels beginning at prekindergarten followed successively by subsequent grade levels to ensure that the linguistic and academic needs of the limited English proficient students with beginning levels of English proficiency are served on a priority basis;
   4. (4) a description of the training program which the district will provide to improve the skills of the staff which is assigned to implement the proposed alternative program, and an assurance that at least 10% of the bilingual education allotment shall be used to carry out this training program; and
   5. (5) a description of the actions the district will take to ensure that the program required under subsection (a) of this section will be provided the subsequent year, including its plans for recruiting and training an adequate number of teachers to eliminate the need for subsequent exceptions.

8. (h) Districts which, because of an insufficient number of certified teachers, are unable to provide an English as a second language program as required by subsection (d) of this section shall request from the commissioner of education a waiver of the certification requirements for the teachers who will provide the instruction in English as a second language for the limited English proficient students. Approval of waivers of certification requirements shall be negotiated on an individual basis and shall be valid for only the school year for which they were negotiated. This request will be submitted by a date determined by the commissioner of education and shall include:

   1. (1) a statement of the reasons the district is unable to provide a sufficient number of certified teachers to offer the English as a second language program;
   2. (2) a description of the manner in which the teachers in the English as a second language program will meet the affective, linguistic, and cognitive needs of the limited English proficient student, including the manner by which the students will be given opportunity to master the essential knowledge and skills required by Chapter 75 of this title (relating to Curriculum);
   3. (3) an assurance that certified personnel available in the district will be assigned to grade levels beginning at prekindergarten followed successively by subsequent grade levels in the elementary school campus, and on the basis of need for secondary campuses, to ensure that the linguistic and academic needs of the limited English proficient students with the lower levels of English proficiency are served on a priority basis;
   4. (4) the names of the teachers not on permit who are assigned to implement the English as a second language program and estimated date for the completion of the English as a second language endorsement for each teacher under a waiver;
   5. (5) a description of the training program which the district will provide to improve the skills of the staff which is assigned to implement the proposed English as a second language program, and an assurance that at least 10% of the bilingual education allotment shall be used to carry out this training; and
   6. (6) a description of the actions the district will take to ensure that the program required under subsection (d) of this section will be provided the subsequent year, including its plans for recruiting and training an adequate number of teachers to eliminate the need for subsequent waivers.

Source Note:The provisions of this §89.1205 adopted to be effective September 1, 1996, 21 TexReg 5700.