A quarter of a century does not seem to have lessened the intent of Congress to protect the rights of national origin minority students: rights that it established in Title VI of the Civil Rights Act of 1964. On the contrary, in 1988 Congress acted to restore its intent to deny all Federal assistance to school districts that violate the educational rights of students because of race, color, or national origin in any of its programs. The strength of Congress' commitment can be seen in the fact that it overrode a Presidential veto on this issue. The relevance of Congressional concern is also illustrated by the all too familiar education statistics which continue to show national origin minority students achieving at levels significantly below the national average.
In these pages we have sought to trace the evolution of legislation, judicial decision, and administrative regulation that together define the legal obligations of education agencies for the education of national origin minority students. As the reader must appreciate, those responsibilities do not lend themselves to simple or definitive summarization. The multiple sources of legal responsibilities; the concurrent, and sometimes conflicting, participation of all three branches of the Federal government in defining those legal responsibilities; and the nature of Federal Court adjudication, are just some of the factors that make this body of law both complex and dynamic.
The lack of clear guidelines, or standards, for program compliance with legal requirements contributes much to the complexity for those who must meet national origin minority students' educational needs. When the Department of Health, Education and Welfare agreed in 1978 to publish formal Title VI regulations, the detailed 1975 Lau Remedies were abandoned and the proposed new regulations, published by the new Department of Education in 1980, were formally withdrawn in 1981. Since then, the Department of Education has not published any new compliance standards; however, in 1991 it did issue a policy update which provided additional guidance on how to ensure better compliance with Title VI regulations.
Yet despite these complexities, parents and educational administrators can and must determine whether education agencies are fulfilling their legal responsibilities to national origin minority students. Where should they turn for guidance? How should they proceed? Any compliance assessment should involve, at the least, a review of the school district's adherence to the requirements of Title VI and the EEOA. While Title VI responsibilities may be conditioned by the number of language-minority students enrolled, the EEOA requires appropriate action by school districts serving even a single limited English proficient student. And where special education placements or services are involved, either through provision or omission, consideration must also be given to the requirements of the Education of the Handicapped Act and to section 504 of the Rehabilitation Act of 1973.
With respect to Title VI compliance, a good starting point is consideration of the four basic injunctions set out in OCR's memorandum of May 25, 1970:
(1) Where inability to speak and understand the English language excludes national origin minorit 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.
Accurate identification of non-English language background students and assessment of their language proficiency is the first step which must be taken to fulfill this basic responsibility. Accurate, linguistically and culturally relevant assessment of student skills and instructional needs is also fundamental to the next two basic injunctions.
(2) School districts must not assign national origin minority 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 children access to college preparatory courses on a basis directly related to the failure of the school system to inculcate English language skills.This later injunction also implies the use of accurate student assessment and exit program criteria to determine when an individual student no longer needs language related instructional programs or services.(3) Any ability grouping or tracking system employed by the school system to deal with the special language skill needs of national origin minority 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.
And finally, according to the May 25th memorandum:
(4) School districts have the responsibility to adequately notify national origin minority 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.This last injunction may be affected by the number of students and parents involved. Additional responsibilities regarding parent notification may also apply if special education services are at issue.
Beyond the May25th memorandum, parents and educators should look to the compliance standards and three-part test set forth in Castaneda. While this case concerned legal responsibilities under the EEOA, it should be noted that other Courts and the OCR have found the three-part test relevant in evaluating a school district's Title VI compliance.
The affirmative responsibility imposed by the EEOA, according to Castaneda, is to ensure that language-minority students "attain parity of participation in the standard instructional program within a reasonable length of time after they enter the school system." And "parity of participation," according to Castaneda, means "not only an obligation to overcome the direct obstacle to learning which the language barrier itself poses, but also a duty toprovide limited English speaking 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."
To determine whether a school district is meeting its affirmative obligations to ensure "parity of participation," parents and school officials should apply the three-part "Theory-Practice-Results" test of Castenada to their local situation. Further guidance on the application of this legal test to specific features of a district's programÄsuch as student identification and placement, curriculum, staffing, training, program evaluation, and program exitingÄcan be derived from Castaneda and other reported Court decisions, many of which have been reviewed above.
Finally, where an education agency is not fulfilling its responsibilities to language-minority students, parents and educators must work together to bring about the changes required by law. To be effective these changes may, (as the Court noted in 1983 Keyes decision) require "a change in the institutional commitment to the objective (of equal educational opportunity) and a recognition that to assist disadvantaged children to participate in public education is to help them enter the mainstream of our social, economic, and political systems. The resulting benefits to the community are self-evident and the production of such benefits is the purpose of tax supported education in the United States."
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