### **Rescinded: This document has been formally rescinded by the Department and remains available on the web for historical purposes only.**

### OFFICE OF THE ASSISTANT SECRETARY

| The Office for Civil Rights in the U.S. Department of Education issues this guidance to provide State educational agencies and local educational agencies with information to ensure the provisions of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001, regarding access to, participation in, and administration of, public school choice, are implemented in a nondiscriminatory manner that is consistent with the requirements of Title VI of the Civil Rights Act of 1964 and its implementing regulations (34 C.F.R. Part 100).

This guidance represents the Department’s current thinking on this topic. It does not create or confer any rights for or on any person. This guidance does not impose any requirements beyond those required under applicable law and regulations.

If you are interested  in commenting on this guidance, please email us your comment at OCR@ed.gov or  write to us at the following address: Assistant  Secretary for Civil Rights, 400 Maryland Avenue, SW, Potomac Center  Plaza, Washington, D.C. 20202-1100.   |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

January 8, 2009 

Dear Colleague:

I write to clarify how Federal  anti-discrimination laws and, in particular, Title VI of the Civil Rights Act  of 1964 (Title VI), apply to local educational agencies (LEAs or school  districts) and State educational agencies (SEAs) that participate in the  program authorized by Title I, Part A (Title I) of the Elementary and Secondary  Education Act of 1965 (ESEA), as reauthorized by the No Child Left Behind Act  of 2001 (NCLB),**1** and are  therefore subject to the requirement to provide parents of eligible students  with options to transfer their child to another school, pursuant to the Title I  public school choice provisions.  20  U.S.C. § 6316(b).**2**

The Office for Civil Rights (OCR) in the United States  Department of Education (the Department) is responsible for enforcing, among  other statutes, Title VI.  Title VI  prohibits discrimination on the basis of race, color, or national origin by  recipients of Federal financial assistance.   The Department’s Title VI regulations, mirroring the Title VI statute,  state, in relevant part: 

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 otherwise subjected to discrimination under any  program to which this part applies.  

34 C.F.R. § 100.3(a).

To promote educational excellence for all students and to  ensure nondiscrimination in access to educational opportunity, the Department  vigorously enforces the non-discrimination requirements of Title VI as they relate  to access to, participation in, and administration of, public school  choice.  If the Department determines  that a recipient has discriminated against students based on their race, color,  or national origin in the provision of access to, participation in, or  administration of, public school choice as required under Title I, the  Department will make a finding that the recipient has violated Title VI.**3**  These violations may result in enforcement  action if not corrected voluntarily.  A  summary of the relevant Title I requirements, and a discussion of how Title VI  applies to those requirements, are provided below.

*Title I Public School  Choice Requirements*

The core objective of the public  school choice provisions of Title I is to “ensure that all children have a  fair, equal, and significant opportunity to obtain a high-quality  education.”  20 U.S.C. § 6301. 

 Section 9534 of the ESEA states that “[n]othing in this Act  shall be construed to permit discrimination on the basis of race, color,  . . . sex . . ., national origin, or disability in any program funded  under this Act.”  20 U.S.C. § 7914(a)  (emphasis added.).  Thus, under the ESEA  as well as Title VI, recipients implementing public school choice requirements  must not discriminate based on race, color, or national origin.  The following is a short summary of the Title  I public school choice requirements.

Children attending Title I  schools**4** are eligible for public school choice when their school has not made adequate  yearly progress in improving student achievement (as defined by the SEA) for  two or more years, and is, therefore, identified as in need of school  improvement, corrective action, or restructuring.  Any  student attending such a school must be offered the option of transferring to  another public school served by the LEA, which may be a public charter school,  not identified for school improvement, corrective action, or restructuring,  unless such an option is prohibited by State law.  20 U.S.C. §§ 6316(b)(1)(E), 6316(b)(5)(A),  6316(b)(7)(C)(i), 6316(b)(8)(A)(i).  

The Title I regulations specify that an LEA may  not claim “lack of [school] capacity” as the basis to deny eligible students  the option to transfer to another public school under 20 U.S.C. § 6316(b).  34 C.F.R. § 200.44(d).  Under Title I, school districts must also  provide an opportunity to obtain supplemental educational services for  low-income students who are enrolled in schools that are in the second year of school improvement, in corrective action, or in restructuring.  20 U.S.C. §§ 6316(b)(5)(B), 6316(b)(7)(C)(iii), 6316(b)(8)(A)(ii), 6316(e)(1).**5**

Under Title I, LEAs must  promptly notify parents if their child is eligible for public school choice  because the child’s current school has been identified for school improvement,  corrective action, or restructuring.  The  statute also states that LEAs must provide this notice to parents “in an  understandable and uniform format and, to the extent practicable, in a language  the parents can understand.”  20 U.S.C. §  6316(b)(6).  The Title I regulations  provide more details about the notice requirements, stating (in pertinent part)  that an LEA’s notice to parents must include the following:
      - An  explanation of what the identification of the child’s current school (as in  need of improvement, corrective action, or restructuring) means, and how the  school compares to other schools served by the LEA and SEA in terms of academic  achievement;    
      - The  reasons for the school’s identification as in need of improvement, corrective  action, or restructuring;     
      - An explanation  of how the parents can become involved in addressing the academic issues that  led to their child’s school’s identification;    
      - An  explanation of the parents’ option to transfer their child to another public  school (with information on the academic achievement of the school or schools  to which the child may transfer), including an explanation of the district’s  provision of transportation to the new school.   This explanation of available public school choice options must be made  sufficiently in advance of, but no later than 14 calendar days before, the  start of the school year so that parents have adequate time to exercise their  choice option before the school year begins; and    
      - If  the school is in its second year of improvement or subject to corrective action  or restructuring, a notice explaining how eligible parents can obtain  supplemental educational services for their child, including the identity of  approved service providers within the LEA, a brief description of the services,  qualifications, and demonstrated effectiveness of those providers, including an  indication of those providers who are able to serve students with disabilities  or limited English proficient students, and an explanation of the benefits of  receiving supplemental educational services.   This supplemental educational services notice must be clear and concise  and clearly distinguishable from other information sent to parents regarding  school improvement.  

34  C.F.R. § 200.37(b).

*Obstacles  to Parents’ Exercise of the Public School Choice Option*

 The Department’s evaluation of  the implementation of Title I, the *2007 National Assessment of Title I**Final  Report* (*2007 National Assessment),**6***includes  information on the impact, through the 2004-2005 school year, of the public  school choice provisions. 

 In general, the *2007 National Assessment* reveals that  implementation of Title I’s public school choice provisions has encountered  obstacles.  During the 2004-2005 school  year, only about one percent of the students eligible for Title I transfers actually  changed schools.  There doubtless were  multiple reasons for this low participation rate, many of them unrelated to LEA  and SEA efforts to provide nondiscriminatory transfer options to their  students.  However, as Secretary  Spellings noted in a May 15, 2006 letter to Chief State School Officers, some  LEAs had failed to implement the ESEA public school choice provisions.  Audits of SEAs and LEAs found that failure to  notify parents of the Title I transfer option, and failure to budget for school  choice-related services, including transportation, inhibited eligible parents’  exercise of their transfer options.  In  other cases, LEAs cited lack of school capacity at receiving schools as a  reason for denying transfers, notwithstanding that, under the regulations, an  LEA cannot cite lack of school capacity as a reason for not providing eligible  students with Title I public school choice.  

*Title VI Non-Discrimination Requirements in Providing  the Public School Choice Option*

Title VI does not  mandate the provision of any particular program, curriculum, or educational  option.  For this reason, under most  circumstances, a recipient’s failure to implement an aspect of the ESEA would  not, perse, also constitute a violation of Title VI.  Rather, Title VI requires that a recipient’s  educational programs and services -- including any programs or services  provided under the ESEA -- be made available to all its eligible students  without discrimination based on race, color, or national origin.  

The Title VI regulations prohibit providing, on the basis of  race, color, or national origin, any service, financial aid, or other benefit  to an individual that is different, or is provided in a different manner, from  that provided to others under the program.   34 C.F.R. § 100.3(b)(1)(ii).  The  Title VI regulations expressly apply this prohibition to different treatment in  -- among a number of other contexts -- the specific context of admissions,  enrollment, eligibility, or other requirements for any service, financial aid,  or benefit.  34 C.F.R. § 100.3(b)(1)(v).

The option to choose to transfer to a higher-performing  school under Title I is a tangible educational benefit to the transferring  student, the denial or obstruction of which -- including the failure to  appropriately notify eligible students and their parents -- would, if based on  a student’s race, color, or national origin, constitute a violation of Title  VI.  Where a complaint or other  information suggests that there may be a denial of, a failure to notify, or  other discriminatory barriers to, the exercise of public school choice, based  on race, color, or national origin, OCR would apply Title VI and its  regulations in examining the LEA’s notification, provision and administration  of the public school choice option.**

 We note that some school representatives have asked whether,  in applying Title VI, OCR would reach a Title VI compliance conclusion based on  statistics alone.  Statistical data alone  are not sufficient to support a finding of a violation, but may be sufficient  to warrant an investigation, particularly when presented in conjunction with  other facts.  These other facts may  include -- but are not limited to -- the recipient’s policies and procedures  regarding public school choice, and the recipient’s actual practices in this  regard. 

*Title VI Non-Discrimination  Requirements After the Student Has Transferred*

A student who has  transferred to a new school consistent with the public school choice  provisions, is, of course, still protected under Title VI from discrimination  based on race, color, or national origin in his or her new educational setting  at the “receiving” school.  Although this  letter cannot comprehensively address all factual circumstances in elementary  and secondary education to which Title VI might apply, we discuss, below, Title  VI nondiscrimination requirements that align closely with the provisions of the  ESEA and the Title I regulations, where a child has transferred to a new school  through his or her parents’ exercise of public school choice.

For example, Title  I includes an obligation to provide, or pay for the provision of,  transportation for students who are transferring to another school pursuant to  the Title I public school choice option.   20 U.S.C. § 6316(b)(9); see 34 C.F.R. § 200.44(i).  Although OCR, as noted, could not itself  mandate a particular school transportation requirement, when an LEA provides,  or pays for the provision of, transportation for the purpose of implementing  public school choice, that provision of or payment for transportation must --  pursuant to both Title VI and Title I -- be provided in a manner that does not  discriminate based on any student’s race, color, or national origin.  

Title VI and its regulations also prohibit subjecting a  student to segregation or separate treatment, based on race, color, or national  origin, in any matter related to the student’s receipt of any service,  financial aid, or other benefit under the program.  34 C.F.R. § 100.3(b)(1)(iii).  Accordingly, students availing themselves of  public school choice must not be subject to segregation or discriminatory  separate treatment at their new school.

LEAs have a responsibility to ensure that students who have  transferred pursuant to the public school choice provisions are not  discriminated against, based on their race, color, or national origin, in any  aspect of the provision or administration of the education programs at these  students’ new schools.  In implementing  the public school choice provisions, an LEA must ensure that these Title VI requirements  are met.  These requirements for  non-discrimination apply to all aspects of the program provided at the  receiving school, including -- but not limited to -- nondiscriminatory access  to gifted and talented courses, advanced placement, or similarly rigorous  academic curricula, and the opportunity to participate in extracurricular  activities.***7***  

*Desegregation Orders and Public  School Choice*

There is strong alignment between the goals of the civil rights  laws and the ESEA.  The *2007**National  Assessment,* for example, suggests that the Title I public school choice  provisions have -- in general, and where utilized -- helped to increase racial  integration.  Specifically, the *2007  National Assessment* found that, in nine urban districts, students transferring  pursuant to the public school choice provisions typically moved from schools  with more minority isolation to schools with greater racial integration.

 However, despite this strong alignment, rare instances have  arisen where the civil rights laws and the ESEA may either conflict or appear  to conflict, particularly in the context of school districts operating under  Federal court desegregation decrees or other mandatory desegregation  orders.  A few LEAs have encountered  situations where specific provisions of their desegregation orders were  inconsistent with aspects of the ESEA public school choice requirements.  Other LEAs may have concerns about the  possibility of conflicts between non-mandatory desegregation plans that the LEA  adopted voluntarily and the LEA’s ESEA public school choice obligations. 

The Title I regulations in 34 C.F.R. § 200.44(c) state that,  under such circumstances, an LEA is not exempt from the requirement to provide  Title I public school choice.  Rather,  if, for example, a court order or other mandatory desegregation plan “forbids  the LEA from offering the transfer option,” the regulations provide that the  LEA “must secure appropriate changes to the [desegregation] plan to permit  compliance” with Title I.***8***  34 C.F.R. § 200.44(c)(3). 

Where LEAs are under court desegregation orders or similar  mandates, the Department expects that school districts will make every effort  to comply with both their desegregation orders and with the ESEA public school  choice provisions.  If an LEA requests a  modification but the court (or other issuing authority) will not modify the  desegregation plan so that an LEA can comply with the ESEA public school choice  provisions, the LEA should notify the SEA and the Department of its request to  the court, and of the court’s decision.   In these circumstances, the Department would consider granting the LEA a  waiver of the requirements to provide public school choice to the extent that  those requirements are inconsistent with the LEA’s desegregation plan.   
***9***
No factual circumstance of such a conflict has yet been  presented to OCR.  If, in the future, a  school district requests that OCR modify an OCR-required Title VI desegregation  plan to address a conflict with the ESEA public school choice requirements, OCR  will carefully consider such a request, with the objective of securing a  resolution that comports with both the ESEA and the goals of the district’s  OCR-required desegregation plan.

Providing educational opportunities to all students is  critical to the prosperity of our Nation.   To ensure that students have the skills necessary to compete in the  highly competitive global economy, I urge you to assess whether your SEA or LEA  -- at the district and individual school level -- is providing equal  educational opportunities to all students, including in situations where an LEA  is implementing the ESEA public school choice provisions.

Please use the information provided in this letter to  continue to evaluate whether your LEA or SEA is in compliance with the  nondiscrimination requirements discussed above. Upon request, OCR provides  technical assistance in voluntarily complying with the civil rights laws  enforced by OCR.  If you, or your agency,  school district, or school, need additional information or assistance on these  or other matters, please do not hesitate to contact the OCR enforcement office  that serves your State or territory. The  contact information for each office is available  at: http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm.     Thank you for your cooperation and support in this important  endeavor.
| Sincerely,                           |
|--------------------------------------|
|                                 |
| Stephanie J. Monroe                  |
| Assistant Secretary for Civil Rights |

**1** On  October 29, 2008, the Department published final regulations amending several  of the Title I regulations, including the regulations governing public school  choice.  *See* 73 Fed. Reg. 64436  (2008).  These regulations became  effective on November 28, 2008.
**2** Although this letter  focuses on the application of Title VI in the context of school districts’  provision of public school choice under Title I, section 9532 of the ESEA  requires that each State receiving funds under the ESEA establish and implement  a statewide policy requiring that students attending a persistently dangerous  public elementary or secondary school, or students who become victims of a  violent criminal offense while in or on the grounds of a public school that  they attend, be allowed to attend a safe public school within the LEA, which  may be a public charter school.  See 20 U.S.C. § 7912.
**3** If a district is operating under a court  desegregation order, the terms and conditions of the court’s desegregation  order effectively establish the standard for racial nondiscrimination for the  district.  Where such a court order  addresses inter-school student transfers, OCR therefore must defer to the court  regarding the race discrimination aspects of such transfers.  See discussion of desegregation orders  and public school choice at page 6 of this letter.

**4** Title I schools are schools that participate  in programs authorized by Title I, Part A (Title I) of the ESEA, as amended by  NCLB.  Although this letter primarily  addresses the ESEA public school choice requirements as applied to Title I  schools in need of improvement, corrective action, or restructuring, the Title  VI requirements of nondiscrimination based on race, color, or national origin  discussed here also apply to other inter-school student transfer processes or  decisions made by elementary or secondary education institutions receiving  Federal financial assistance from the Department. 

**5** Although this letter focuses on the application of Title VI in the  context of school districts’ provision of the Title I public school choice  options, the provision of supplemental educational services under Title I must  also comply with Title VI; that is, such services may not be provided in a  manner that discriminates based on a student’s race, color, or national origin.

**6** Stullich, S., Eisner, E., and McCrary, J., *National  Assessment of Title I: Final Report Volume I: Implementation of Title I*, U.S. Department  of Education, 2007, at 98 (2007 *National Assessment*).

**7** Similarly, Title I expressly requires that all  students who take advantage of the Title I public school choice option be  enrolled in classes and other activities in the school to which the students  transfer in the same manner as all other students in the school. 20 U.S.C. §  6316(b)(1)(F). 

**8** Likewise, if an LEA has voluntarily --  without a court order or other mandate -- put in place a desegregation plan,  and if the LEA’s voluntary plan conflicts with the LEA’s public school choice  obligations, the Title I regulations require that the LEA modify its voluntary  desegregation plan to permit compliance with Title I.  34 C.F.R. § 200.44(c)(1), (3).  

**9** As noted above, under Title VI, OCR has no  independent authority to modify a court-imposed desegregation order.  See, e.g., *Lee v.  Macon County Board of Education*, 270 F. Supp. 859 (M.D. Ala. 1967), *aff’d.  sub nom., Wallace v. U.S.*, 389 U.S. 215 (1968) (Under the separation of  powers doctrine, the executive branch is without authority to terminate Federal  funds on Title VI grounds to a district operating under a desegregation court  order, since doing so would in effect disapprove a court-ordered plan and  infringe on the power of the judiciary.). 

  
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