UNITED STATES DEPARTMENT OF  EDUCATIONWASHINGTON, D.C. 20202

MEMORANDUM

SEP 11,  1984

| TO: | Gilbert D. Roman    Regional Civil Rights Director      Region VIII |
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| FROM: | Harry M. Singleton        Assistant Secretary        for Civil Rights |
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SUBJECT: Policy Regarding Title VI Language Minority Investigations

ISSUE
Four specific questions, discussed in detail below, are posed.  These ask  for the criteria and procedures to be used in determining the jurisdictional  basis for a Title VI language minority discrimination investigation involving  reservation-based Native American school children.

BACKGROUND

This memorandum responds to your request, dated July 23, 1984, for guidance  regarding a Title VI investigation of the Fort Yates Public School, Fort Yates,  North Dakota, or the investigation of similar complaints.

The complaint, a copy of which is attached to your memorandum, involves an  alleged Title VI violation on the part of the Fort Yates School.  It alleges  that Native American children enrolled in the Fort Yates School appear to be  having academic difficulty, may be limited-English-proficient, (LEP), and belong  to a culture and a society in which the Dakota and Lakota languages are used.   It does not allege specifically that the students in question are primary Lakota  or Dakota speakers.

The region characterized this complaint as raising possible Title VI issues  regarding equal educational opportunity, specifically:  the possibility of  the recipient's failure to identify and to take into account the linguistic  and cultural characteristics of the students in question (Issue A); and the  failure to provide a possibly required language program designed to meet the  educational needs of the students (Issue B).

In order to process the complaint, or others like it, you asked for policy  guidance in the form of responses to four specific questions.

DISCUSSION
- Is the only legal basis for conducting a Title VI Language Minority      investigation the May 25, 1970 Memorandum ? 

This interpretative guideline announces the basic requirements imposed by  Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, etseq.,  regarding the treatment of language minority students.  The May 25, 1970 Memorandum, "Identification  of Discrimination and Denial of Services on the Basis of National Origin," 35 Fed. Reg.  11395, announced requirements of Title VI and the Department regulations which  implement the Title, 34 C.F.R. Part 100, specifically, 34 C.F.R. § 100.3 (b),  (prohibited discrimination) as these requirements pertain to the treatment  of LEP language minority students.  The requirements announced in the Memorandum were  deemed a proper interpretation of Title VI and its regulations by the United  States Supreme Court in Lau v. Nichols, 414 U.S. 563 (1974).
- What children does the May 25, 1970, Memorandum include as      a protected class, i.e., how does OCR measure it?  (If the definition provided      in the July 2, 1982 memorandum is the operative definition, we do not know      how   "function effectively" is measured and how this is tied      to language.)

Some relationship between the student's "primary or home" language  and his or her inability in English has to be established before the requirementsannounced in the Memorandum come into play.

The May 25, 1970 Memorandum has generally been interpreted to apply  to students who are learning English as a second or other language, or whose  ability to learn English has been clearly and substantially diminished through  lack of exposure to the language.  It does not generally cover national origin  minority students whose only language is English, and who chance to be in difficulty  academically, or who have language skills which, for reason or another, are  less than adequate.  However, other rights of minority students generally,  as against those that specifically relate to the treatment of linguistically  different children, are protected under the more general requirements of Title  VI and the Department rules which implement it.

Thus, Lau v. Nichols, supra, the Supreme Court decision  which initially upheld the propriety of the Title VI requirements announced  in the May 25, 1970 Memorandum, applied these requirements to the lack  of accommodation by the San Francisco Public Schools to its Chinese-speaking  students, rather than to underachieving Chinese-American, or other national  origin minority students, generally.

Subsequent litigation, notably Otero v. Mesa County Valley S.D.    No. 51, 408 F. Supp. 326 (D. Colo, 1975), rev'd on other grounds,    568 F.2d 1312 (10th Cir. 1978), held that the mere fact that numbers of student    were Hispanic and in academic difficulty was, without a showing that the    students in question had arrived at school speaking Spanish rather than English,    insufficient to establish a Title VI violation based on the requirements    announced in the May 25, 1970 Memorandum.1    It is necessary to show, in order to affirmatively establish coverage under    the provisions announced in the May 25, 1970 Memorandum, that students    are handicapped in an English-speaking environment because of their use of,    or exposure to, a different language.2     Only students with a "primary or home" language other than English    fall within the protected class.

If a student meets such criteria, it is still necessary to determine if the  student is LEP.  In addition to being a "language minority" student,  that is, a national origin minority student whose first language is not English,  or whose exposure to English was limited, a student's English language skills  must also be limited enough to warrant assistance in order for the student  to be properly identified as LEP.

The Memorandum does not provide an express definition of limited-English  proficiency, but an analysis of its provisions and stated purpose results in  a fairly clear working definition.  On this point, the Memorandum speaks  in terms of the obligation of a school district to take   "affirmative  steps" to overcome "English language deficiencies."  It also  contains additional provisions requiring that steps taken will permit a LEP  student ultimately to participate effectively in the program of instructionoffered a district's native speakers of English.

The Memorandum specifically notes that a school district may not assign  children to classes for slow learners or the retarded on the basis of their  language skills.  Critically, the Memorandum provides that the school  district, in taking steps to accommodate LEP students, may not employ a tracking  system that leads to isolation of LEP students in "dead end" courses  of study or classes.  See, Cintron v. Brentwood Union Free  School District, 455 F. Supp. 57 (E.D.N.Y. 1978).

Thus, schools must provide assistance that leads to their successful incorporation  into the program of instruction offered native speakers of English.  Whether  or not a student is "deficient" in English must, by the same token,  be answered by reference to whether the student's ability in English is on  a par with that of a student who can successfully negotiate the course of instruction  offered by the school district.

Thus, "deficiency" within the context of OCR policy materials pertaining  to the May 25, 1970 Memorandum refers to a lack of proficiency minimally  adequate to permit successful participation in school.  The legal adequacy  of a school's "entrance and "exit" criteria for programs offering  assistance to LEP students must initially be judged in relationship to the  skills possessed by competent speakers of the language, of the same age, who  have been successful in school.  See, Aspira v. Board of Education  of the City of New York, 394 F. Supp. 1161 (E.D.N.Y. 1975). 

It is to be ordinarily expected that some LEP students will have greater competency  in speaking, understanding, reading, or writing English than will some native  speakers.  A student remains LEP until his or her skills approach those of  an "ordinary" native English-speaking student within the school,  rather than one who, whether or not English was his or her primary language,  has a less than fully adequate command of it.

Since instruction proceeds through English, there is invariably a level of  proficiency which, at minimum, is implicitly expected of students at a particular  grade.  Thus, for example, a student would be expected to be able to read,  understand, and manipulate the material contained in a fourth grade social  studies text in order to obtain the material offered in fourth grade social  studies.  Definitions of LEP used by a school district must be in accord with  these expectations.

The task of developing a specific definition lies within the discretion of  the individual district, however.  In 1981, the Secretary announced that the  Department would not prescribe specific steps or eligibility criteria and recipients  could, therefore, "use any way which has proven to be successful" in  meeting the legal requirements discussed in the May 25, 1970 Memorandum.   (Statement of Secretary Bell, February 2, 1981.)

Thus, as discussed in the policy materials, such as the July 2, 1982 Interim    Procedures Memorandum to which you have referred, the development of    the criteria and procedures for determining whether or not a language minority    student is eligible for assistance, as well as the nature and duration ofthe assistance itself, is a matter for school district discretion.

In evaluating the working definition used by a school district, debatable  issues regarding the completeness and accuracy of the criteria employed must  be resolved in favor of the school district. [See, Interim Procedures Memorandum,  p. 6.]

Without an independent showing, on the basis of expert opinion or common sense,  that a student is incapable of effective participation in school because of  a lack of skill in English, a variety of other causes can be almost invariably  ascribed for academic failure.  Such a showing is a relatively easy matter  where a student simply cannot speak English, or where his or her skills fall  incontrovertibly below that which anyone might believe are needed, but is a  far more difficult matter in other cases.  Thus, OCR must generally accept  the discretionary judgment of school officials regarding whether or not a student  is LEP, if this judgment falls within the realm of professional credibility.
- How does OCR determine who the protected children are ?       - Does the District have an affirmative duty to identify            (1)         children who do not speak and understand English (2)         children who have some ability to speak and understand          English    even in the absence of a finding by OCR that any of these children        exist or are "excluded"?    
  - In light of the "flexibility" allowed          recipients, what is OCR's position when a recipient asserts that no          identification process and/or language program is necessary since all          of its students speak English?  Is this   "visual identification" enough          to meet the requirements of the May 1970 Memo? 

3(a). As discussed above, OCR does not immediately determine which children  within a school district are LEP.  The school district must develop its own  standards for deciding this, and has an affirmative duty to serve such students.   It, therefore, has a duty to "identify" such children in the sense  that it may not leave eligible children unserved.  Where children who do not  speak English, or speak very little English, are not served, a school district  is in noncompliance with Title VI.

Where children speak "some" English, and it is debatable whether  or not such students should be classified as LEP, deference to the discretion  of the school district requires OCR to defer to the school district's determination  of whether such students are eligible for assistance.  Such deference is not,  however, to be confused with a simple acceptance of the school district's rationale.   An independent assessment of the school district's rationale and an investigation  of the circumstances to which it is applied may be necessary.

A useful legal test for the legal adequacy of a recipient's policy is found  in Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981) (construing  substantially similar provisions of the Equal Educational Opportunities Act(EEOA), 20 U.S.C. § 1703 (f)).3

Castaneda attempted to devise a mode of analysis:
. . . [to] permit . . . courts to fulfill the responsibility Congress  has assigned . . . without unduly substituting . . . [the court's] educational  values and theories for the educational and political decisions reserved to  state [sic] and local school authorities or the expert knowledge of  educators.
Thus, the concerns of the court were substantially the same as those which  entered into the formulation of OCR enforcement procedures after the Secretary's  announcement of current policy.  The court's analysis, therefore, not surprisingly  appears an orderly capitulation of the steps OCR might take in implementing  the steps discussed in the Interim Procedures Memorandum.

Castaneda posed a three-stage inquiry, the first two of which are pertinent  to the specific question which you have posed.4   The first was:
. . . to ascertain that a school system is pursuing a program recognized  as sound by some experts in the field, or, at least, deemed a legitimate experimental  strategy.
The second was:
. . . whether the programs and practices actually used by the school  district are reasonably calculated to implement effectively the educational  theory adopted by the school.
3(b). As discussed above, there is a general duty, imposed by Title VI, and  announced in the May 25, 1970 Memorandum, for a school district to serve  all LEP language minority children.  There is no express substantive requirement  that students be generally identified and assessed in order to determine or  not they are language minority or LEP.

However, when a school district offers no services, it has implicitly decided  that no student served by it is entitled to assistance.  If it enrolls any  possibly eligible students, it has, therefore, adopted implicit criteria for  determining service eligibility.  In effect, its criteria lie at some point  below the level of English language skills possessed by its least proficient  language minority student.

The adequacy of these implicit criteria, and the "visual identification" or  any other process used by a school system to ascertain if its students meet  or surpass them, may be judged on the same basis as are express criteria used  by a district to determine whether a student is LEP.  Simply, has the district  failed, either because of defective procedures or the lack of any procedure,  to identify, assess, and serve children who are clearly eligible for assistance?

If the school district has failed to serve students who, when legitimate educational  issues pertaining to identification and assessment are resolved in favor of  the school district's implicit judgment, still appear in need of assistance,  a school district may be found in noncompliance on the ground that it has failedto serve eligible LEP students.
- Where a complaint has been filed on behalf of children who      may speak and understand some English, and the District has no identification/assessment      procedure for identifying these children based on language, how does OCR      identify these children?  On what basis, if any, can OCR require a district      to identify these children?

Where a complainant has alleged that unserved language minority LEP students  are enrolled in a school district which does not have any procedure for identifying  such children, OCR has to determine whether or not such children exist.  The  task is obviously complicated by the fact that, precisely because the school  district has refused to identify students who may be eligible, it will have  no hard information regarding the language backgrounds of individual students,  or the level of language skills which they have.

Inquiry may be made pursuant to the Title VI investigatory authority outlined  at 34 C.F.R. §§ 100.6 and 100.7.  A district may be asked to explain why it  does not believe that it enrolls LEP students, as was asserted in a complaint.   As discussed in the previous subsection of this memorandum, such a decision  is necessarily underpinned by an implicit understanding of LEP which the district  believes none of its students meet.

The district can be asked to supply information supporting the proposition  that no eligible students are enrolled.  That is, it can be required to explain  why its does not believe it enrolls LEP students, and to supply a factual basis  for its decision that none of its students are entitled to the types of assistance  contemplated by the May 25, 1970 Memorandum.

An independent investigation by OCR may be necessary to review data pertaining  to individual students or to obtain other evidence that would confirm or deny  the complaint allegations.

CONCLUSION

In the present case, the region should, therefore, by recontacting the complainants,  or by the techniques described above, ascertain whether the students in question  are bilingual, and otherwise possess language characteristics markedly different  from those of monolingual English speakers.  Once an understanding of the actual  characteristics of the students in question are generally ascertained, the  District's apparent view that it does not enroll eligible LEP children can  be evaluated in light of OCR standards for assessing the legal adequacy of  criteria for eligibility, as also discussed above.

1See,also,Keyes v. Denver School District No. 1,  521 F.2d 465 (10th Cir. 1975).  But see, Martin Luther King Junior  High School Children v. Anne Arbor, Michigan School District, 473  F. Supp. 1371 (E.D. Mich. 1979), which treated Black English as a language  different from Standard English, and imposed a duty to overcome the language  barrier thus confronted by black speakers of this nonstandard dialect.  The  court imposed this duty pursuant to 20 U.S.C. § 1703 (f) of the Equal Education  Opportunities Act (EEOA), which establishes requirements similar to the Title  VI requirements discussed in the May 25, 1970 Memorandum.

The most recent decision in Keyes pertaining to language issues, Civil  Action No. C-1499 (December 30, 1983), alluded to in the Title VI complaint  under discussion, does not disturb the earlier holding of the Appellate Court  referred to above to the effect that the difficulties caused by the "myriad  economic, social, and philosophical problems connected with the education of  minority students" did not fall within the purview of a plan implementing  the Title VI requirements announced in the May 25, 1970 Memorandum.   [Slipop., at 3, quoting 521 F.2d 465, 482-83.]

This recent decision dealt with the adequacy, in light of 20 U.S.C. § 1703(f),  of Denver's current attempts to assist children entitled to assistance under  Colorado State law.

2 The  Region's view of the structure of a language minority case as stated at page  2 of your memorandum of July 23, 1984, is, therefore, incomplete.  In addition  to showing that a child is national-origin-minority and limited-English-proficient,  it is also necessary to show that such lack of proficiency is related to child'suse of or exposure to a language other than English.

3In Castaneda, the Fifth Circuit held that a Title VI violation could  not be established without a showing of discriminatory "intent."   It found that announced Title VI requirements pertaining to language minority  students could be violated without such "intent," and found them,for this reason, overboard.

It looked to Section 204 (f) of the EEOA, 20 U.S.C. § 1703 (f), for an applicable  legal standard. It found that this law did not require proof of   "intent."   The law otherwise imposed requirements substantially the same as those announcedin the May 25, 1970 Memorandum.

Subsequent to Castaneda, the Supreme Court held, in Guardians Assoc. v. Civil    Service Comm. of the City of New York, ___U.S.___, 103 S.Ct. 3221 (1983),    that "intent" need not be shown before a Title VI violation was    established.  Thus, the Title VI requirements announced in the Memorandum may    now be viewed as equally valid as those of Section 204.

As suggested above, the analysis employed by Castaneda in applying  Section 204 (f) of the EEOA may also presently serve as a guide in determining  whether a recipient is in violation of equally valid and virtually identical  Title VI requirements.

4The third stage of the inquiry deals with whether the program has met itsstated objectives after a "legitimate trial."

A program which was not revised after experience determined that it had generally  failed to meet its objectives, would not be legally acceptable.  Castaneda v. Pickard, supra; See, also, Serna v. Portales,  New Mexico Municipal School District, supra.

 
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