1980 Notice of Proposed Rulemaking (Title VI)

The ambiguity about the legal status of the never published Lau Remedies has been noted. While they formed the basis of OCR's compliance reviews and were repeatedly cited by Courts as the standard for programs for language-minority students, they had neither the force of law nor of official Departmental regulation. In 1978, when an Alaskan school district disputed OCR's use of the Lau Remedies for determining compliance with Title VI, the Department of Health; Education and Welfare (HEW) agreed, in a Court-approved consent decree, to replace the Lau Remedies with formallypublished compliance guidelines.⁵³

To fulfill its part of the consent decree, in 1980 the newly formed Department of Education published in the Federal Register a Notice of Proposed Rulemaking (NPRM)⁵⁴ which required school districts receiving Federal assistance to provide special instruction to all limited English proficient (LEP), national origin minority students and, under most conditions, to provide some native-language instruction in academic subjects to LEP students who were more proficient in their native language than in English. Possibly in response to prior criticism about "ambiguities" in the Lau Remedies, the Department's 1980 included objective specifications for:

...the identification of language-minority students;
...the assessment of their English proficiency;
...the provision of proper instructional services;
...criteria for governing exit from special instructional programs.

The highly detailed and prescriptive standards set out in the 1980 NPRM drew widespread criticism, and in response to its solicitation of public comments the Department of Education received over 4,000 letters, most of which objected to one or more of the NPRM's provisions. There were calls for Congressional action in response to the NPRM, and after meeting with congressional leaders, Education Secretary Shirley Hufstedler voluntarily suspended finalization of the new Title VI standards.

As one of the first public acts as Secretary of Education in the newly-installed Reagan Administration, Terrell H. Bell formally withdrew the 1980 NPRM on February 1981. Secretary Bell did not issue new policy guidance beyond vowing:

We will protect the rights of children who do not speak English well, but we will do so by permitting chool districts to use any way that has proven to be successful.

How OCR has translated the Secretary's words into policy and practice was discussed in Chapter V.

Castaneda v. Pickard (1981)⁵⁵

Perhaps the most significant Court decision affecting language-minority education, after Lau, did not impose an instructional program on any school district. But in 1981, in Castaneda v. Pickard, the Fifth Circuit Court of Appeals' decision created a powerful analytical framework for determining whether or not an education agency is fulfilling its EEOA responsibilities to take "appropriate action" on behalf of its language-minority students. Castaneda has strongly affected subsequent Court rulings under Title VI and the EEOA, as well as OCR's Title VI enforcement policies and procedures. The Castaneda decision came in a suit brought against the Raymondville (Texas) Independent School District (RISD) by the parents of Mexican students who made up 80 to 100 percent of the school population in the five schools operated by the RISD.

Plaintiffs in Castaneda claimed that the RISD violated the Fourteenth Amendment, Title VI, and EEOA rights of Mexican American students by:

...unlawfully discriminating against them by using a classroom ability-grouping system based on racially and ethnically discriminatory criteria and resulting in impermissible classroom segregation;
...discriminating in the hiring and promotion of Mexican American faculty and administrators;
...failing to implement adequate bilingual education programs to overcome the linguistic barriers that impede the language-minority students' equal participation in the educational program in the district.⁵⁶

In 1978, the U.S. District Court for the Southern District of Texas entered judgement in favor of the school district, determining that the policies and practices of the RISD did not violate any constitutional or statutory rights of the plaintiffs; the Mexican American parents appealed.

The Court of Appeals took sharp issue with the District Court's handling of the case, rebuking it for failing to make findings of fact as to whether the RISD had segregated and discriminated against Mexican American students in the past. The Court of Appeals pointed out that:

Plaintiffs raised the issue of RISD's past discrimination in their pleadings and introduced substantial evidence in support of this claim in the proceedings before the District Court; thus, the District Court's failure to make findings regarding the history of the district and whether vestiges of past discriminatory practices currently exist in the district cannot be excused on the grounds that these issues were not properly before the Court. The absence of findings on these issues seriously handicaps our review...⁵⁷

The Court of Appeals reversed the District Court's decision on the issues of student ability grouping and discrimination in employment, remanding those portions of the case for proper analysis and essential finding of facts. Regarding ability grouping, the Court of Appeals advised:

Language grouping is...an unobjectionable practice, even in a district with a past history of discrimination. However, a practice which actually groups children on the basis of their language ability and then identifies these groups not by a description of their language ability but with a general ability label is, we think, highly suspect...Even in the absence of such a history, we think that if the District Court finds that the RISD's ability grouping practices operate to confuse measures of two different characteristics, i.e., language and intelligence, with the result that predominantly Spanish speaking children are inaccurately labeled as "low ability," the Court should consider the extent to which such an irrational procedure may in and of itself be evidence of a discriminatory intent to stigmatize these children as inferior on the basis of their ethnic background.⁵⁸

The Court of Appeals agreed with the lower Court that "Title VI, like the Equal Protection Clause, is violated only by conduct animated by an intent to discrimination and not by conduct which, although benignly motivated, has a differential impact on persons of different races."⁵⁹ (However, the view that only intentional discrimination is barred by Title VI and Federal implementing regulations was rejected by a majority of the Justices in Guardians Association v. Civil Service Commission of the City of New York 463 U.S. 582, 1983).

The Court then rejected the argument that RISD's programs were educationally unsound and that the district goals overemphasized the development of English language skills to the detriment of the child's overall cognitive development.⁶⁰ The Court also dismissed the Lau Remedies as not being "the sort of administrative document to which we customarily give great deference in our determinations of compliance with a statute."⁶¹

The feature of the Court of Appeal's opinions in Castaneda that gives it landmark significance came in response to the claim that RISD's language remediation programsviolated EEOA. Although the Appeals Court did not rule on the ultimate merits of this claim, it developed an analytical framework and a set of basic standards for resolving EEOA claims which have been followed by other Federal Courts and the Department of Education's Office for Civil Rights.

The Appeals Court argued that in EEOA, Congress intended to go beyond the essential requirement of Lau that the schools do something, and to impose through the use of the term "appropriate action" a more specific obligation on state and local education authorities:

We think Congress' use of the less specific term, "appropriate action," rather than "bilingual education," indicates that Congress intended to leave state and local educational authorities a substantial amount of latitude in choosing the programs and techniques they would use to meet their obligations under the EEOA. However, by including an obligation to address the problem of language barriers in the EEOA and granting limited English speaking students a private right of action to enforce that obligation in 1706, Congress also must have intended to insure that schools made a genuine and good faith effort, consistent with local circumstances and resources, to remedy the language deficiencies of their students and deliberately placed on Federal Courts the difficult responsibility of determining whether that obligation has been met.⁶²

Then the Court confronted the toughest question - - what does "appropriate" mean?

Congress has provided us with almost no guidance, in the form of text or legislative history, to assist us in determining whether a school district's language remediation efforts are "appropriate." ...Confronted, reluctantly, with this type of task in this case, we have ttempted to devise a mode of analysis which will permit ourselves and lower Courts to fulfill the responsibility Congress has assigned to us without unduly substituting our educational values and theories for the educational and political decisions reserved to state or local school authorities or the expert knowledge of educators.⁶³

The Court of Appeals then formulated the following three-part test to measure compliance with the EEOA requirement of "appropriate action.

(1) Theory: The Court's responsibility, insofar as educational theory is concerned, is only to ascertain that a school system is pursuing a program informed by an educational theory recognized as sound by some experts in the field or, at least, deemed a legitimate experimental strategy.
(2) Practice: The Court's second inquiry would be whether the programs and practices actually used by a school system are reasonably calculated to implement effectively the educational theory adopted by the school. We do not believe that it may fairly be said that a school system is taking appropriate action to remedy language barriers if, despite the adoption of a promising theory, the system fails to follow through with the practices, resources, and personnel necessary to transform the theory into reality.
(3) Results: If a school's program, although premised on a legitimate educational theory and implemented through the use of adequate techniques, fails, after being employed for a period of time sufficient to give the plan a legitimate trial, to produce results indicating that the language barriers confronting students are actually being overcome, that program may, at that point, no longer constitute appropriate action as far as that school is concerned. We do not believe Congress intended that under Section 1703(f) a school would be free to persist in a policy which, although it may have been "appropriate" when adopted, in the sense that there were sound expectations for success and bona fide efforts to make the program work, has, in practice, proved a failure.⁶⁴

The Fifth Circuit supplemented its "Theory-Practice-Results" analysis with the following "mission" standards:

Limited English speaking students entering school face a task not encountered by students who are already proficient in English. Since the number of hours in any school day is limited, some of the time which limited English speaking children will spend learning English may be devoted to other subjects by students who entered school already proficient in English...We understand 1703(f) to impose on educational agencies not only an obligation to overcome the direct obstacle to learning which the language barrier itself poses, but also a duty to provide limited English speaking ability students with assistance in other areas of the curriculum where their equal participation may be impaired because of deficits incurred during participation in an agency's language remediation program. If no remedial action is taken to overcome the academic deficits that limited English speaking students may incur during a period of intensive language training, then the language barrier, although itself remedied, might, nevertheless, pose a lingering and indirect impediment to these students' equal participation in the regular instructional program. We also believe however, that 1703(f) leaves schools free...to determine the sequence and manner in which limited English challenge so speaking students tackle this dual long as the schools design programs which are reasonably calculated to enable these students to attain parity of participation in the standard instructional program within a reasonable length of time after they enter the school system.⁶⁵

As for the Raymondville Independent School District, the Court of Appeals applied its three-part test and decided:

(1) The district's bilingual language remediation program was based on a sound theory.
(2) The Court expressed concern about the adequacy of RISD's program implementation, citing unqualified teachers and inadequate testing, including the failure to test students' educational progress in their own language.⁶⁶
(3) The Court declined to proceed to the "results" compliance test even though plaintiffs complained that the limited English speaking students in the district's bilingual education program do not achieve at the same level as monolingual students.⁶⁷ Such inquiry, according to the Court, should come after the inadequacies in the implementation of the RISD's program have been corrected.⁶⁸

Office for Civil Rights Enforcement Policy in the Mid-1980's

When Education Secretary Bell withdrew the Department of Education's 1980 Notice of Proposed Rulemaking which would have established Departmental guidelines for Title VI compliance, he promised to "protect the rights of children who do not speak English well." Subsequently, OCR staff developed a new set of Title VI Lau compliance procedures and standards.69 Like the 1975 Lau Remedies, the new OCR compliance standards have not been published in the Federal Register, and thus lack the full force of formal regulations. Consistent with Secretary Bell's announced intention of "permitting school districts to use any way that has proven to be successful," current OCR guidelines refrain from prescribing educational approaches.

Current OCR guidelines are grounded on the Title VI requirement announced in OCR's May 25, 1970, Memorandum (discussed above), affirmed in the Lau decision, that school districts serving limited English proficient students must "take affirmative steps" to open their instructional programs to language-minority students.⁷⁰ In carrying out this affirmative obligation, current OCR policy provides that "school districts may use any method or program that has proven successful, or may implement any sound educational program that promises to be successful."⁷¹ OCR's Title VI language-minority compliance procedures focus on two general areas:

(1) ...whether there is a need for the district to provide an alternative program designed to meet the educational needs of all language minority students.
(2)...whether the alternative district program is likely to be effective in meeting the educational needs of its language minority students.⁷²

According to OCR, the first question will be answered by:

.determining whether language minority students are able to participate effectively in the regular instructional program. When they are not, the school district must provide an alternative program. In cases where the number of these students is small, the alternative program may be informal.⁷³

To answer the second question - whether the alternative district program is likely to be effectiveÄthe OCR procedures propound three sub-questions which generally follow Castaneda's three-part test of a language remediation program under the EEOA. The three questions OCR uses to determine whether an alternative instruction program for LEP language-minority students satisfies Title VI are:

(1)Is the alternative program based on a sound design?
(2)Is the alternative program being carried out in such a way as to ensure the effective participation of language minority students as soon as reasonably possible?
(3) Is the alternative program being evaluated by the district and are modifications being made in the program when the district evaluation indicates they are needed? ⁷⁴

There is little basis on which to judge the impact, or efficacy, of OCR's new compliance procedures and standards regarding language-minority students. As yet unpublished, the Title VI standards and procedures have attracted little public attention; nor they been cited in reported Court decisions.

More importantly, perhaps, the extent to which the new procedures have actually been implemented by OCR staff conducting compliance reviews and complaint investigations is unclear. The June 4, 1986, edition of Education Week reported a sharp falling-off of OCR Title VI Lau enforcement activity during 1980-1985, the period immediately prior to formal adoption of OCR's new language-minority compliance procedures.⁷⁵ OCR's Title VI enforcement program has been the subject of recent Congressional oversight, and the House Education and Labor Committee is currently conducting a staff investigation of OCR's total enforcement effort, including activities to protect language-minority students.

Office for Civil Rights Policy Update on Schools' Obligations Toward National Origin Minority Students with Limited English Proficiency (1991)* ⁷⁶

PURPOSE OF THE POLICY UPDATE

Q: Why is this issue important?
A: Without special language assistance, an estimated two million limited English proficient (LEP) students from a wide variety of ethnic and racial backgrounds may not have meaningful access to their schools' programs. In his America 2000 strategy, President Bush calls for meeting the educational needs of all students.

Q: Why is OCR involved in this area?
A: OCR is responsible for enforcing Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in programs or activities that receive Federal financial assistance. OCR has interpreted Title VI to require that school districts "take affirmative steps to rectify [English] language deficiencies which have the effect of excluding national origin minority children from participation in the educational program offered." In Lau v. Nichols, 414 u.s. 563 (1974), the Supreme Court upheld this interpretation of Title IV.

Q: What is the purpose of the policy update?
A: The policy update is designed to provide additional guidance to our regional offices about what schools must do to comply with Title VI. OCR has distributed this policy widely to make schools, parents, and students aware of schools' obligations under Title VI and to ensure better compliance with Title VI. This policy update does not change OCR's policy under Title VI.

ACCEPTABLE ALTERNATIVE LANGUAGE PROGRAMS

Q: Must school districts use a particular type of alternative language program, such as transitional bilingual education, or English as a Second Language (ESL), to comply with Title VI?
A: No. Districts may use any program that is recognized as sound by some experts in the field or is considered a legitimate experimental strategy. Examples of such programs include transitional bilingual education, bilingual-bicultural education, structured immersion, developmental bilingual education, and English as a Second Language.

Q: Has a school district satisfied its responsibilities under Title VI once it chooses an appropriate alternative language program?
A: No. The district must also carry out the program properly and provide the teachers and resources necessary for the program to succeed. In addition, the school district must modify its program if, after a legitimate trial, it does not succeed in enabling LEP students to overcome their language barriers. As a practical matter, school districts will be unable to comply with this requirement without periodically evaluating their programs.

STAFFING REQUIREMENTS

Q: What sort of qualifications must teachers in a bilingual education program have?
A: Teachers of bilingual classes must be able to speak, read, and write both languages, and they should have received adequate instruction in the methods of bilingual education. They must also be fully qualified to teach the subject matter of the bilingual courses. In addition, the school district must be able to show that it has determined that its bilingual education teachers have the required skills.

Q: If a school district uses a program other than bilingual education, what sort of qualifications must the program's teachers have?
A: The program's teachers must have received adequate training in the specific teaching methods required by that program. This training can take the form of in-service training, formal college coursework, or a combination of the two. The district should ensure, through testing and classroom observation, that teachers have actually mastered the skills necessary to teach in the program successfully.

Q: How can a school district comply with Title VI if qualified teachers for its program are unavailable?
A: First, a district should be prepared to describe the efforts it has made to hire qualified teachers. If qualified teachers are temporarily unavailable, the district must require its teachers to work toward obtaining formal qualifications. In addition, the district must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom, as well as any assistance they may need from bilingual aides that may be necessary to carry out the district's interim program.

Q: Can LEP students be taught solely by bilingual aides?
A: No. Bilingual aides must work under the direct supervision of qualified classroom teachers. LEP students should not be receiving instruction from aides rather than teachers.

Q: What qualifications must bilingual aides meet?
A: To the extent that the district's chosen educational program requires native language support, and if the district relies on bilingual aides to provide such support, the district should be able to demonstrate that it had determined that its aides have the appropriate level of skill in speaking, reading, and writing both languages. Aides at the kindergarten and first grade level, however, need not demonstrate reading and writing proficiency.

EXIT CRITERIA FOR LANGUAGE-MINORITY LEP STUDENTS

Q: When can a school district exit a student from an alternative language program?
A: Students may not be exited from an alternative language program unless they can read, write, and comprehend English well enough to participate meaningfully in the district's regular program. Exit criteria that simply measure a student's oral language skills are inadequate. The district's exit criteria should be based on objective standards, such as test scores, and the district should be able to explain why students meeting those criteria will be able to participate meaningfully in the regular classroom.

Q: If a school district elects to emphasize English over other subjects when LEP students first enroll, does the district have any obligation to provide special instruction to the students once they learn English well enough to function in the regular classroom?
A: Yes. While schools with such programs may discontinue special instruction in English once LEP students become English proficient, schools must provide the assistance necessary to remedy academic deficiencies that may have occurred in other subjects while the student was focusing on learning English.

GIFTED AND TALENTED PROGRAMS

Q: Can school districts refuse to consider admitting LEP students to gifted and talented programs?
A: No. If a district has a process for locating and identifying gifted and talented students, it must also locate and identify gifted and talented LEP students who could benefit from the program. Exclusion of LEP students from gifted and talented programs must be justified by the needs of the particular student or by the nature of the program.

OCR COMPLIANCE ACTIVITIES

Q: How does OCR ensure that school districts fulfill their obligations under Title VI?
A: OCR investigates complaints filed by individuals, or groups, who believe that they, or others, have been subjected to discrimination. Even if no formal complaint has been filed OCR can conduct compliance reviews of school districts to determine whether they are fulfilling their obligations under Title VI. In addition to conducting investigations, OCR provides technical assistance to state and local education agencies and program beneficiaries to inform them of their obligations and rights under Title VI. Technical assistance is provided using a variety of methods including on-site consultations, training, workshops, and meetings.

Q: What happens if OCR finds that a school district's treatment of LEP students violates Title VI?
A: If OCR finds a Title VI violation, we try to negotiate a corrective action plan under which the district specifies the actions it will take to remedy the violation. If negotiations are successful, OCR issues a letter of findings detailing the Title VI violation and stating that the district has agreed to remedy the violation. We then monitor the district's actions to ensure that it has carried out the corrective action plan.

If OCR is unable to get the district to agree to a corrective action plan, we initiate formal enforcement activities which, after an administrative hearing, can leadto the termination of all Federal financial assistance to the district unless the district agrees to remedy the Title VI violation.

Q: Who can we contact for information on how to file a complaint, or to obtain technical assistance?
A: You can call the Office for Civil Rights at (202) 732-1213 to obtain the address and telephone number of the OCR regional office responsible for your area. The regional office will be able to give you specific information about filing a complaint or obtaining technical assistance.

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Checklist for Self-Evaluation of Compliance with OCR Regulations School districts can use the following checklist to see whether they are complying with OCR standards under Title VI of the Civil Rights Act of 1964.

I. IDENTIFYING LEP STUDENTS IN NEED OF ALTERNATIVE LANGUAGE SERVICES

1. Do we have a procedure for identifying limited English proficient (LEP) students and assessing their language proficiency?
2. Do our identification and assessment procedures accurately identify and assess all LEP students?

II. ADEQUACY OF OUR PROGRAM

3. Soundness: Is our alternative language program endorsed by an expert in the field?
4. Implementation:

a. Are there sufficient staff qualified to teach LEP students in the alternative language program we have chosen?
b. Do our exit criteria assess oral, written, reading and comprehension skills?
c. Do our LEP students have access to special education services? Do our evaluation procedures take into account LEP students' limited English proficiency?
d. Do our LEP students have access to gifted and talented programs?

5. Evaluation:

a. How do we know whether our program is successful?
b. Have we modified our program when we have found problems with it?
c. Do our LEP students who have exited the program have meaningful access to our school district's school curricula?

i. How do they perform compared to non-LEP peers?
ii. What is their rate of participation in our school curricula?
iii. Is their dropout rate and in-grade-retention rate comparable to their non-LEP peers?

III. LEAST SEGREGATIVE MANNER

6. Are our LEP students segregated for recess, physical education, music, or art?
7. Do our students stay in the program longer than is necessary to achieve the educational goals for the program?

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Copyright © 1988. Revised and Reprinted 1992.
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