Civil Rights Act of 1964

In 1964, Congress passed milestone legislation that banned discrimination on the basis of "race, color, or national origin" in all Federally assisted programs. This legislation, Title VI of the Civil Rights Act of 1964 (referred to simply as Title VI in the pages that follow), declared:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.¹

As noted in Senate debate, Title VI was premised on the idea that: "Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination."²

Section 602 of the 1964 Act directed all grant-making Federal departments and agencies to issue "rules, regulations, or orders of general applicability" to effectuate the prohibition against discrimination, and to enforce nondiscrimination "by the termination of or refusal to grant or to continue assistance" or "by any other means authorized by law."

In keeping with Section 602, the Department of Health, Education, and Welfare (HEW) issued regulations applicable to school districts and other recipients of Federal assistance under HEW programs. Then, in 1968, HEW issued the first in a series of guidelines that interpreted the Act and HEW regulations to mean that Federally assisted "school systems are responsible for assuring that students of a particular race, color, or national origin are not denied the opportunity to obtain the education generally obtained by other students in the system."³

Office for Civil Rights Memorandum (1970)

On May 25, 1970, the Director of the Office for Civil Rights in HEW sent a memorandum to school districts whose national origin minority group enrollments exceeded five percent.⁴ The memorandum noted "a number of common practices which have the effect of denying equality of educational opportunity to Spanish surnamed pupils." The memorandum was specific in broadening the meaning of "national origin minority" beyond Hispanic students. "Similar practices," it continued, "which have the effect of discrimination on the basis of national origin exist in other locations with respect to disadvantaged pupils from other national origin minority groups, for example, Chinese or Portuguese."

To "clarify HEW policy on issues concerning the responsibility of school districts to provide equal educational opportunity to national origin minority group children," the memorandum identified four basic school district responsibilities:

(1) Where inability to speak and understand the English language excludes national origin minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.

(2) School districts must not assign national origin minority group students to classes for the mentally retarded on the basis of criteria which essentially measure or evaluate English language skills; nor may school districts deny national origin minority group children access to college preparatory courses on a basis directly related to the failure of the school system to inculcate English language skills.

(3) Any ability grouping or tracking system employed by the school system to deal with the special language skill needs of national origin minority group children must be designed to meet such language skill needs as soon as possible and must not operate as an educational dead end or permanent track.

(4) School districts have the responsibility to adequately notify national origin minority group parents of school activities which are called to the attention of other parents. Such notice in order to be adequate may have to be provided in a language other than English.

The full significance of the May 25, 1970 memorandum was realized four years later when the United States Supreme Court ruled in Lau v. Nichols rendered by the Supreme Court on the legal responsibilities the only decision ever of school districts for limited English proficient, national origin minority students.

Lau v. Nichols (1974)⁵

Lau v. Nichols was a class action suit brought on behalf of limited English proficient students of Chinese ancestry enrolled in the 16,500 pupil San Francisco Public School System. Of the 2,800 Chinese students, about 1,000 received supplemental instruction in the about 1,800 received no special instruction. The plaintiffs English language; however, alleged that the school district's conduct violated both the Fourteenth Amendment to the Constitution and Title VI of the Civil Rights Act of 1964, but they did not seek a specific remedyÄ"only that the Board of Education be directed to apply its expertise to the problem and rectify the situation. "⁶

First the District Court, and then the Ninth Circuit Court of Appeals, found no violation of the Chinesestudents' statutory or constitutional rights. The Court of Appeals summarized the District Court's opinion as follows:

The Court expressed well-founded sympathy for the plight of the students represented in this action, but concluded that their right to an eduction and to equal educational opportunities had been satisfied, in that they received "the same education made available on the same terms and conditions to the other tens of thousands of students in the San Francisco Unified School District..." Appellees had no duty to rectify appellants' special deficiencies, as long as they provided these students with access to the same educational system made available to all other students.⁷

An argument made by the Chinese plaintiffs was that the school district's refusal to overcome language deficiencies amounted to a "denial" of educational opportunity. The Appeals Court rejected that argument on the grounds that the school district did not have a "duty" to do so:

Every student brings to the starting line of his educational career different advantages and disadvantages...That some of these may be impediments which can be overcome does not amount to a "denial" by the Board of educational opportunities within the meaning of the Fourteenth Amendment should the Board fail to give them special attention, this even though they are characteristic of a particular ethnic group."¹¹

Thus, the Court of Appeals concluded that the school district's duty to non-English students "extends no further than to provide them with the same speaking Chinese facilities, textbooks, teachers, and curriculum as is provided to other children in the district."¹²

In 1974, however, the U.S. Supreme Court unanimously rejected the lower Courts' reasoning and overturned their decisions in Lau, finding that the San Francisco school district had, indeed, violated Title VI. But, since the Court held that violation of the Chinese students' rights under Title VI was sufficient, it did not consider their claim that their constitutional right to equal protection under the law had been violated.

In writing the Court's decision, Justice William Douglas reviewed the provisions of the California Education Code which provide that "English shall be the basic language of instruction in all schools;" permit a school district to determine "when and under what circumstances instruction may be given bilingually;" and announce "the policy of the state" to insure "the mastery of English by all pupils in the schools." Bilingual instruction is authorized "to the extent that it does not interfere with the systematic, sequential, and regular instruction of all pupils in the English language." Justice Douglas also noted that:

Moreover, 8573 of the Education code provides that no pupil shall receive a diploma of graduation from grade 12 who has not met the standards of proficiency in "English." Moreover, by 12101 of the Education Code (Supp. 1973) children between the ages of six and 16 years are (with exceptions not material here) "subject to compulsory full-time education.¹³

Under these state imposed standards, there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum, for students who do not understand English are effectively foreclosed from any meaningful education.

Basic English skills are at the very core of what these public schools teach. Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired those basic skills is to make a mockery of public education. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful."¹⁴

Justice Douglas then cited the general Title VI regulations promulgated by HEW in 1968 which barred actions which are discriminatory in effect even though no purposeful design is present.

It seems obvious that the Chinese-speaking minority receive fewer benefits than the English speaking majority from respondents' school system which denies them a meaningful opportunity to participate in the educational programÄall earmarks of the discrimination banned by the regulations.¹⁵

Finally, Justice Douglas cited the provisions regarding students' English language deficiencies set out in the May 25, 1970, OCR Memorandum regarding national origin discrimination. School districts, the Court noted, agreed to comply with these requirements as a condition for receiving Federal aid:

The Federal Government has power to fix the terms on which its money allotments to the States shall be disbursed. Whatever may be the limits of that power, they have not been reached here.¹⁶

The Department has reasonably and consistently interpreted section 601 to require affirmativeremedial efforts to give special attention to linguistically deprived children.¹⁹

...when, in another case, we are concerned with a very few youngsters, or with just a single child who speaks only German or Polish or Spanish or any language other than English, I would not regard today's decision, or the separate concurrence, as conclusive upon the issue whether the statute and the guidelines required the funded school district to provide special instruction.²¹

Just weeks after the announcement of the Supreme Court's decision in Lau, Congress adopted the Equal Educational Opportunities Act (EEOA) as an amendment to the Education Amendments of 1974.²² Interestingly, since the focus of the EEOA²³ was to limit the use of student transportation to achieve school desegregation, the EEOA amendment was opposed by civil rights and student advocate organizations. But included with the "anti-busing" and pro-"neighborhood school" provisions of the EEOA were new statutory responsibilities placed on school districts serving language-minority students.

EEOA states:

No state shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, byÄ
(f) the failure of an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.²⁴

The EEOA did not define "appropriate action;" nor did its legislative history amplify Congress `intent. Congress' silence about this provision has led some commentators to look for possible guidance to other sections of the Education Amendments of 1974Äparticularly the section reauthorizing and amending the 1968 Bilingual Education Act (BEA).

While the Bilingual Education Act has never been in any sense mandatory (it has always been a voluntary, competitive assistance-grant program), and thus is quite different from the EEOA's requirement that education agencies take "appropriate action to overcome language barriers," the 1974 amendments to the BEA evinced strong support for educational programs of instruction in both English and the student's native language. Accordingly, some commentators cite the 1974 BEA amendments as justification for the inference that EEOA's "appropriate action to overcome language barriers" includes bilingual education services. The ambiguity of this EEOA provision eventually led the Courts to develop a powerful analytical framework for determining whether or not an education agency is fulfilling its EEOA responsibilities to language-minority students (for a discussion of this point see Castaneda v. Pickard, Chapter VI).

Finally, the EEOA provided that:

An individual denied an equal educational opportunity as defined by this part may institute a civil action in an appropriate District Court of the United States against such parties, and for such relief, as may be appropriate. The Attorney General of the United States..., for or in the name of the United States, may also institute such a civil action on behalf of such an individual.²⁵

Copyright © 1988. Revised and Reprinted 1992.
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