Cape school district faces civil rights complaint

Cape Henlopen School District is facing a civil rights complaint alleging discrimination against English language learners.

The complaint, which was filed by Mariner Middle School English language development teacher Louise Michaud Ngido in July 2024, claims the district discriminates against students on the basis of national origin, particularly those with English as a second language, by failing to provide an adequate language assistance program for ESL students.

“We’re not given any resources, any curriculum, any realia, any of the materials that you would need to teach a course,” said Michaud Ngido, who’s worked in the district for three years. “We would never teach math this way; we would never teach science this way. This is not a legitimate ESL program.”

At the time the complaint was filed, Michaud Ngido said Mariner didn’t offer any kind of language assistance program for ESL learners. The school has since implemented one, but Michaud Ngido said it’s still not enough.

Superintendent Bob Fulton denies all allegations and welcomes an investigation of the complaint by the Department of Education’s Office of Civil Rights.

“We feel strongly that all of our [multilingual learners] receive meaningful academic instruction as well as equal meaningful access to all school programming and services,” Fulton said in a statement. “We are confident that our MLL parents receive meaningful access to communications and information regarding their students in a language they understand. At Cape, we have an incredible team of talented MLL educators in all of our schools who work tirelessly to make sure our MLL students receive the very best instruction, supports and access to services they need and deserve each and every day.”

The U.S. Department of Education has established that newcomer students – foreign-born students who have recently arrived in the U.S. and are learning English – do not need to achieve significant language proficiency before they can participate in disciplinary learning. Instead, they should be building their English proficiency and literacy skills while simultaneously accessing grade-level content.

Additionally, the department indicated students do not need simplified content and language as they learn English.

It is the policy of both Cape Henlopen School District and the state to keep ESL students in the general education setting as much as possible, using a push-in model of instruction, said Cape’s Director of Teaching and Learning LouAnn Hudson.

“The goal is always to have them in with their peers as much as possible,” Michaud Ngido agreed. “But that doesn’t mean you don’t also have a program to actually explicitly teach them English.”

Having ESL students in mainstream classes all day with no supplemental English instruction program – which she said Mariner was doing at the time she filed her complaint – is a clear violation of the U.S. Supreme Court case Lau v. Nichols, she said.

The key, she said, is a balance between the mainstream classes and the English language development classes. As the students progress in their understanding of English, she said, they can gradually progress toward taking all mainstream classes.

For example, at a school in Tennessee where she previously worked for seven years, newcomers spent half of every school day for about two years at a different location working on an English language development curriculum and a math curriculum. Then, they spent the other half of each day at their regular home school with an ESL teacher.

The students would graduate from the program within two years or less, depending on their abilities, and would then take all mainstream classes.

“That isn’t the model that every district has to have, because different areas of the country have different needs, and different school systems have different needs,” Michaud Ngido said. 

But some kind of structured model is vital, she said.

Currently, Mariner offers 30-minute English language development classes during the advisory period, so the students don’t miss any of their core classes. The classes are open to students who are either new to the country with limited English proficiency or who immigrated three or more years ago and scored less than 3.0 on the annual WIDA Access test.

Out of about 70 ESL students in total at Mariner, most of whom speak Spanish as their first language, around 12 to 15 are enrolled in those classes. The classes are taught by the school’s other ESL instructor.

According to Michaud Ngido, the school doesn’t have a set space designated for the program, so the class location changes day to day. There’s no transition time built into the allotted 30 minutes, she said, so the actual instructional time is only about 20 minutes.

“A pull-out program that is less than a half-hour per day doesn’t meet the basis of sound educational theory,” she said, suggesting that Mariner’s program doesn’t meet one of the necessary criteria of an adequate ESL program established by the U.S. Supreme Court in Castañeda v. Pickard.

In addition to the pull-out program, Michaud Ngido comes into the 14 or so mainstream core classes (e.g., math, science, English language arts) on a rotating basis to provide extra support for ESL students. She typically gets about 30 minutes in each class a couple days a week, which she said is not enough.

Many of the mainstream classes are overcrowded, with upward of 30 students, adding another layer of difficulty for kids with limited English proficiency. 

“For example, the sixth-graders go into an ELA class every day for an hour with up to 34 kids,” she said. “So not only are they expected to learn sixth-grade curriculum, they’re supposed to do it in a class of 34 kids, and it’s entirely taught in English.”

To follow along in those classes, Michaud Ngido said ESL students will often use Google Translate or seek help from their Spanish-speaking peers.

“That works to a point, but that also puts a huge burden on the other kids,” she said. “And sometimes, the kid that’s explaining to them doesn’t necessarily understand it that well to begin with. Some kids don’t mind it, but that doesn’t mean they’re conveying the right information. Some kids do mind it and don’t want to be bothered, but yet, you’re expected to help your classmates.”

Mariner offers two Spanish immersion classes, social studies and Spanish language arts, so Spanish-speaking ESL students can learn some material each day in a language they understand. But again, Michaud Ngido said, those classes don’t teach English.

She suggested the school offer an English language development class as a core replacement for the mainstream English language arts class, saying there are no rules prohibiting that. 

She urged the district to look to previous OCR settlement agreements, highlighting that those agreements outline exactly what schools should do to be compliant with civil rights. 

Those agreements are publicly available, and she said she sent a list of several relevant ones to the district in October 2024. But she said nothing has changed.

“Nothing has been tweaked, worked out, purchased … They’re just waiting to be forced to do something,” she said. 

The school district receives money through the state’s Opportunity Fund that’s specifically earmarked to enhance English language development programs.

“These things were supposed to go to English learners, but if it’s being spent, I don’t see it,” Michaud Ngido said. “We do a lot of trainings at Cape on equity. I find it very superficial, almost gaslighting. They send us to a training. They say, ‘Go back to your schools and implement equity,’ but we are not getting equity at the district office level. The people that are making decisions are not distributing these funds equitably.”

She said the district is failing not only the ESL students, but also the parents.

According to district officials, critical documents (e.g. yearly scores, notifications of service, student code of conduct, emergency contact forms, school registration forms, etc.) are translated by a professional translation service for parents. Additionally, all messages to a student’s family sent via the district’s mass communication system are translated by the communication software.

However, according to Michaud Ngido, not all the staff members consistently use the professional translation service when communicating with the families who need it. 

“At a school like Mariner, where almost 40% of our parents speak a language other than English, and it’s predominantly Spanish… we don’t have a single employee in the front office or an instructional assistant who speaks Spanish,” she said.

She filed the complaint in hopes of a change for Cape’s ESL community.

“For the most part, with some exceptions, the ESL population is the population with the least amount of social capital in a school district,” she said. “They aren’t the ones going to the school board, they’re not the ones picketing or complaining, and the services reflect that. Everybody knows the squeaky wheel gets all the services, and the school district is no different.”

Many times, ESL and newcomer families aren’t aware of certain rights they have in the school system, such as the right to a certified interpreter, Michaud Ngido said. 

“You can’t ask for something that you don’t even know you have a right to have,” she said. “That’s why I filed a complaint, because I felt like they’re not going to speak up for themselves. And then if I don’t speak up, who will?”

The Office of Civil Rights had been investigating the complaint since around October 2024, but the investigation was halted earlier this year amidst the federal freeze of civil rights proceedings.

According to ProPublica reports, the freeze, which went into effect in late January, has since been lifted only for disability-based civil rights proceedings. Michaud Ngido’s complaint does not fall under that category.

Now, with the Trump administration’s attempts to fully dismantle the federal Department of Education, the waters are even murkier. 

Despite the federal turmoil, Michaud Ngido remains steadfast in her push to see improvements in the Cape district.