Statement byNorma V. CantúAssistant Secretary for Civil RightsJune 22, 1999

Mr. Chairman and Members of the Committee:

Thank you for inviting me to appear before you today and providing the opportunity to describe how the Office for Civil Rights furthers the mission of the Department of Education: To ensure equal access to education and promote educational excellence throughout the nation. Before I address the specific questions you asked, I would like to explain how OCR does business and how our new way of doing business provides flexibility and promotes educational soundness.

Introduction

The Office for Civil Rights' mission, which is fully aligned with that of the Department, is to ensure equal access to a high quality education for all students through the enforcement of civil rights. OCR is responsible for enforcing five federal civil rights statutes that prohibit discrimination on the basis of race, color, national origin, sex, disability, and age. OCR carries out its enforcement responsibilities by resolving the approximately 5,000 complaints we receive each year and monitoring resolution agreements to ensure that they are fully implemented. We also provide flexibility to states by building collaboration with state and local education agencies, and creating partnerships with parents, students, and other stakeholders to prevent civil rights problems and to stop illegal discrimination.

There is wide consensus that excellence in education is the critical issue facing the nation. We know that to retain our strength in the new world economy we must focus on high academic standards for all our children. Devoting significant resources to programs that strengthen high-performance education is critical, but it would be a devastating waste of human capital if all of our nation's students are not permitted to benefit from these reform efforts. To accomplish our national educational goals, excellence and equity must go hand-in-hand. 

To ensure equal access to high-quality education for every student, OCR works with schools, colleges, and parent and community groups to achieve common goals. We believe that OCR has made a real difference in the lives of students and can count millions of students whose educational lives have been improved as a result of OCR's work.

OCR's overarching goal is to ensure access to high standards and excellence for all         students. To accomplish this goal, OCR works with school districts, colleges, and universities to assist them in avoiding and eliminating discriminatory educational practices; empowers parents and students to learn to resolve problems of securing equal access to quality education; and obtains results by the efficient management of civil rights compliance activities. We incorporate these objectives and hold ourselves accountable for how we do business in four ways.

First, in fiscal year 1998, OCR had a positive impact on the educational benefits of nearly 6         million students. We have achieved much of this impact through collaborative efforts with states and state systems of education. For example, the Office for Civil Rights and the Commonwealth of Pennsylvania entered into a partnership agreement to resolve a higher education desegregation case that began in 1969. The commitments developed by the partnership are an expression of the         Commonwealth's continued and substantial effort to enhance the opportunities for African Americans to participate in and benefit from higher education in Pennsylvania and to increase the opportunity for access, retention, graduation, and advancement into graduate and professional education programs in the Commonwealth. (*Letter from Pennsylvania Governor Tom Ridge dated April 26, 1999*). We anticipate that the successful implementation of these commitments will be effective in expanding access to higher education, in revitalizing our country's oldest historically black university, Cheyney University, and in increasing the retention and graduation of minority students in Pennsylvania, consistent with the goals of our partnership. The president of Cheyney has stated that the partnership is "a perfect fit for the direction Cheyney needs to go to fulfill its vision for the future." (*Philadelphia Inquirer,* June 4, 1999).

Another example of successful collaboration is our work over the past several years with the Michigan Department of Education (MDE.) MDE and OCR have worked collaboratively to resolve compliance         issues identified within Michigan regarding educational services to limited-English proficient (LEP) students. Some of the excellent partnership results include: an English-as-a-Second Language (ESL) endorsement for certified teachers where no such endorsement was available previously; a plan to increase the number of qualified teachers providing instruction to LEP students; as well as collection of data by MDE from school districts regarding LEP students' academic performance and access to core content, and information about programs designed to teach LEP students English. In addition, relative to MDE's school assessment and improvement programs, MDE will disaggregate the results for LEP students and promote appropriate responses to the needs of LEP students based on those results. These activities will have an impact on approximately 50,000 LEP students in Michigan. 

In another proactive effort, OCR worked with the California Community College System to help         students with visual impairments. It is important to note that California has the nation's largest community college system in the nation, serving more than one million students. Yet, students who were visually impaired were denied access to print materials and computer-based information that was essential to their coursework. OCR, through its work with administrators of these 110 community colleges, improved access to necessary educational information for thousands of already-enrolled visually impaired students.

Secondly, we have worked to ensure that recipients of federal financial assistance (school         districts, colleges and universities, state education agencies) change policies, procedures, or practices to comply with federal civil rights law. Through collaboration and partnership, we have been able to facilitate understanding of civil rights obligations, bring change, and deter discrimination. We believe that these changes result in fewer "copy cat" complaints being filed. The civil rights laws enforced by OCR cover the nation's public schools, colleges and universities, proprietary organizations, and public libraries, museums and vocational rehabilitation agencies. 

Thirdly, we measure the number of         successful partnerships with parents that lead to civil         rights compliance. If we are to succeed in ensuring         access to high standards and excellence for all students,         we must find new ways for involving and empowering         parents. One such example of successful partnership with         parents is a proactive effort, initiated by OCR's         New York office, to empower the parents of the 1.1         million students enrolled in New York City Schools. In FY         1999, OCR's New York office began a partnership with         several parent groups to provide training forums and         workshops for parents throughout New York City. The         training focuses on underserved communities in a special         effort to reach minority and LEP parents. OCR provided         critical information about special education rights,         minority students and special education, and English         language learners and special education. Simultaneous         translation equipment was used, which greatly facilitated         communication with the approximately one-third of the         parents who spoke Spanish. 

During the past four years, the Chicago         Office has been engaged in an initiative premised on the         belief that parental involvement is essential to         achieving lasting positive changes within a school         district. OCR's traditional approach is to obtain a         school district's written agreement to remedy any         compliance problems identified during case resolution and         then to monitor the district's compliance with the         agreement over a specified period of time. Active         involvement of parents concerned about their children's         education can ensure that the positive actions         implemented by a school district continue once OCR is no         longer involved. 

Finally, we are efficient. Eighty         percent of complaints are resolved within 180 days of         receipt by OCR. Even in the face of an increasing         caseload and increased monitoring, we are meeting this         goal. 

In fact, GAO recently issued a Report         Letter analyzing our complaint work. The report, titled         "Resolving Discrimination Complaints Has Improved         With New Processing System," is attached at the end         of this testimony at Tab A. The GAO found that OCR has         improved its complaint resolution process in two major         ways. First, it replaced a process that investigated         complaints with a more flexible system that focuses on         resolving complaints as soon as possible. Also,         OCR's hierarchical structure for investigating         complaints was replaced with case resolution teams.         Second, OCR improved or created several systems to         provide its staff with information needed to conduct and         report on complaint investigations. For example, OCR has         established internal networks around specific issue         areas. The issue networks serve as an organizational         bridge between OCR staff who are doing the same job and         encountering the same questions across the country. The         issue networks provide a forum for building knowledge and         expertise around each issue area. They also serve to         identify best practices, refine our case resolution tools         and approaches, ensure consistency in applying legal         standards and, most importantly, result in increased         access to quality education for students. In addition, we         have focused on improving existing processes to maximize         the effectiveness of our resolutions. For example, OCR         has put increased emphasis and focus on the monitoring of         resolution agreements. Our most well crafted resolution         agreements will do little good unless we monitor their         implementation to ensure that students in fact have         received educational benefits. The GAO report concludes:         "During the fiscal year 1993-1997 period, OCR showed         improvement in three principal performance indicators:         the time to process a complaint, the number of complaints         processed annually, and average backlog of unprocessed         complaints at year end."

Our internal culture, our fundamental         approach to case resolution, has changed. We realize we         cannot prevent and eliminate discrimination on our own.         We must work with a variety of stakeholders to accomplish         our mission - to *prevent* as well as to correct         violations of the law. OCR places great emphasis on         collaboration to achieve results. Cooperation and         communication among people with mutual interests –         students, parents, community groups, state education         agencies, and schools and colleges -- is the key to our         continued success. It is because of this emphasis on         collaboration that OCR has been so effective in obtaining         voluntary resolution agreements to correct violations         without having to resort to the ultimate remedy of fund         termination.

Questions Presented

I appreciate the opportunity to address         your questions regarding educational testing, gender         equity in intercollegiate athletics, and meaningful         access to educational opportunity for LEP students. Our         policy guidance, compliance activities, and collaborative         efforts in these three areas exemplify the aspects of         partnership and collaboration that I mentioned earlier in         my testimony. In addition, our work in these three areas         illustrates how OCR's efforts are not only         consistent with, but also serve to advance, the broader         educational policies of the Administration, Congress, and         the states, as well as the wishes and hopes of our         nation's parents and students.

***I. Educational Testing***

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What are the effects of                 OCR's educational testing policy? Describe                 how these policies and activities are derived                 from the Federal statutes OCR is charged with                 enforcing and the extent to which they are                 consistent with the broader education policies of                 the Administration.

OCR recognizes that tests are critical         components of educational strategies designed to promote         excellence for all students. OCR's resolutions of         claims of discrimination recognize most clearly that the         solution to concerns regarding discrimination is not to         eliminate the very tools that help provide a meaningful         picture of the educational opportunities provided to         students. Rather, OCR's approach is to provide         guidance to policy makers and educators to ensure that         tests are used in ways that are consistent with the civil         rights laws; that is, in ways that provide valid and         reliable information and are consistent with their design         and purpose.

The improper use of a high-stakes test         can violate civil rights laws that prohibit         discrimination against students on the basis of their         race, national origin, sex or disability. When tests are         used to make educational decisions, they should be used         to measure students' abilities, knowledge, or         qualifications regardless of race, national origin, sex         or disability.

This Administration recognizes and         encourages states and districts to adopt stronger         accountability systems that include expanded use of         testing to improve the performance of students and         promote high standards. Contrary to press reports,         OCR's effort to develop a guide is not intended to         undermine those developments. On the contrary, it is a         responsible effort to help states and school districts         select and use tests in the right way and to avoid their         discriminatory and inappropriate use. This effort is         consistent with our purpose of promoting high standards         and equity so that all students can achieve an excellent         education. Accordingly, OCR's draft Testing Resource         Guide was developed in response to a need for guidance,         especially at the elementary and secondary level. The         draft guide is designed to combine, in one document, a         description of existing legal and test measurement         principles to assist policy makers and educators in         making important decisions about when and how to use         tests for making educational decisions that have         significant consequences for students. As the draft         Testing Resource Guide points out, test use cannot be         examined in a vacuum. In addressing the issue of whether         a test has been used in a discriminatory manner, the         draft Testing Resource Guide describes long-standing law         and educational testing principles relevant to making         important decisions regarding benefits for students. The         foundations for OCR's approach in addressing         discriminatory use of educational tests is that legal         standards must be informed by both professional         psychometric standards as well as sound educational         judgement.

OCR's draft Testing Resource Guide         breaks no new legal ground. It explains principles that         are clearly embodied in Title VI and Title IX         regulations. Federal legal standards confirm that the         guarantee under Federal law is for equal opportunity – not equal results. The Title VI and Title IX regulations prohibit recipients from using criteria or practices that have a disparate impact on the basis of race, color, national origin or sex. *However, evidence of statistically significant disparity alone does not establish that the test violates Title VI or Title IX.*Rather, disparate impact forms the basis for further inquiry as to whether the use of the test is educationally necessary and whether there are practicable alternatives with less discriminatory impact that are equally effective in furthering the educational necessity.

OCR has developed a process for obtaining wide input on the draft Testing Resource Guide. We have consulted with over thirty teacher, administrator, policy maker, business, advocacy, and test publisher organizations to solicit input on the draft Testing Resource Guide. Once the draft Testing Resource Guide has been refined in light of their comments, OCR will recirculate the draft Testing Resource Guide to those same groups just prior to our submission of the document to the National Academy of Sciences Board on Testing and Assessment, for their final review. Thereafter, we anticipate making a draft available to the public for review. 

In sum, OCR's legal approach to discriminatory use of educational tests is consistent with the broader objectives of educational reform. Educational reform recognizes that all students need an educational system that both expects high performance and offers real and meaningful educational opportunities. Nondiscrimination in testing and assessment is essential to ensuring that equal opportunities for educational excellence are provided regardless of race, national origin, sex, or disability. 

The effect of OCR's activities in the area of educational testing is to ensure real educational benefits for students.

OCR has investigated many cases that allege discrimination in the use of tests. At times, our         resolutions have focused on states' obligations to ensure that all students are provided the instruction necessary to meet a high-stakes test, such as a statewide proficiency test. In those cases, our agreements have required states to use their accountability systems to ensure that school districts provide the instruction necessary, including remedial or summer school programs, to give all students the opportunity to meet the statewide standards. For example, OCR and the State of Texas have been working together to resolve a complaint alleging that the use of the Texas Assessment of Academic Skills (TAAS) was discriminatory on the basis of race and national origin. Our case resolution in Texas permitted continued use of the TAAS. The agreement focuses on the State's efforts to provide appropriate interventions and instruction in order to improve the passage rates of minority students on the TAAS. 

We also have resolved cases in which IQ tests were used as the sole criterion or gatekeeper for access into gifted and talented programs, despite the fact that such tests were not intended by their publishers to be used in such a manner. In these cases, OCR worked with states, districts and schools to find additional methods for identifying gifted students, such as portfolios of work, grade point averages, teacher recommendations, and achievement test data, while ensuring that the rigorous nature of the underlying program was left intact. Thus, through collaboration with educators and school administrators, we are supporting the proper and nondiscriminatory use of tests to advance high standards and equal opportunity.

***II. Gender Equity in Intercollegiate Athletics***

What are the effects of OCR's gender equity in intercollegiate athletics policy? Describe how these policies and activities are derived from the Federal statutes OCR is charged with enforcing and the extent to which they are consistent with the broader education policies of the Administration.

OCR is responsible for enforcing Title IX of the Education Amendments of 1972, which prohibits         discrimination based on sex in education programs receiving federal financial assistance. Athletics are considered an integral part of an institution's program and are therefore specifically covered by         OCR's regulation implementing Title IX. In order to clarify the athletic requirements contained in the Title IX regulation, a Policy Interpretation was issued in 1979 to provide colleges and universities with more guidance on how to comply with the law. 

Several years ago, I convened a number of focus groups to discuss discrimination in athletics, and in January 16, 1996, I issued a detailed guidance document on the subject of equitable participation         opportunities, entitled "Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test" (The Clarification). This Clarification addresses the interpretation of each of the three options for compliance, commonly referred to as the "three-part test." These options are used to determine whether students of both sexes are provided nondiscriminatory opportunities to participate in athletics. As an initial matter, the Clarification reaffirms that no quotas would be required. Further, we emphasize that there are three alternative approaches whereby a school may comply with the requirement to provide nondiscriminatory participation opportunities for individuals of both sexes. A college or school may comply by applying any of the three approaches: 1) substantial proportionality between the enrollment and participation rates of the underrepresented sex; 2) a history and continuing practice of program expansion for the underrepresented sex; or, 3) full and effective accommodation of the interests and abilities of the underrepresented sex. This compliance standard is part of a larger analytical framework discussed in the 1979 Policy Interpretation, which has received the bipartisan support of Congress over the years. In the Clarification, OCR also encouraged colleges to avoid the cutting of men sports as a means for coming into compliance with the participation test. 

In July 1998, OCR issued two letters that discussed and clarified the 1979 Policy Interpretation as it relates to the funding of athletic scholarships for men's and women's intercollegiate athletic programs. The letters, intended for all schools that award scholarships in intercollegiate athletics         programs, clarify how scholarship dollars must be awarded to men's and women's athletic programs in "substantially equal amounts," proportionate to the participation rate of male and female athletes. Wide dissemination of these letters and posting them on OCR's web site helps ensure that intercollegiate athletic scholarships are awarded with an understanding of the requirements and will promote fairer distribution of scholarship funds.

During the 1996-97 academic year, more than 329,000 student-athletes (200,627 men and 128,209 women) participated in intercollegiate athletics at National Collegiate Athletic Association institutions. According to NCAA's own data, this figure represents the highest number of total student/athletes ever. 

More than 25 years after the passage of Title IX, women college athletes, as a whole, still receive fewer athletic opportunities and less support from their institutions than male athletes. Although men athletes represent about 60% of the student-athletes nationwide, they receive more than 76% of college sports' operating budgets, more than 82% of college recruiting money, and about 72% of athletic scholarships.

It is indisputable that athletic opportunities provide access to higher education. In addition, participation in athletic programs presents important educational experiences that contribute to the         growth of participants' leadership and team building skills. 

OCR's efforts in this area are consistent with the Administration's goals and policies. Moreover, consistent with Administration policy, OCR's compliance criteria give institutions flexible alternatives for complying with the law.

The effect of OCR's activities in the area of gender equity in                 intercollegiate athletics is to yield real education benefits for real students.

OCR's compliance efforts in this area have yielded positive results with respect to access to educational benefits for all students, regardless of sex. For example, OCR entered into an agreement with a large midwestern university that resulted in the university's decision to elevate three of its existing women's club teams to the intercollegiate level. Upon full implementation of the resolution agreement, the university will have increased the number of women participating in its intercollegiate athletics program by as much as 40% without cutting any men's teams. This type of resolution is consistent with Title IX, which does not require the elimination of teams but rather requires equal opportunity.

OCR resolutions of cases alleging gender discrimination in the award of athletic financial assistance also have yielded positive results that will increase access to educational opportunities for hundreds of students. In fact, in 16 out of the 25 complaints filed by the National Women's Law Center this past year, OCR has obtained resolution   that will result in hundreds of thousands of scholarship dollars being made available for women athletes who previously have been denied those monetary benefits.

***III. Meaningful Access to Educational Opportunity for Limited-English Proficient (LEP) Students***

What are the effects of OCR's "bilingual education" policy? Describe how these policies and activities are derived from the Federal statutes OCR is charged with enforcing and the extent to which they are consistent with the broader education policies of the Administration.

You have requested information about OCR's policy relative to "bilingual education." Pursuant to Title VI of the Civil Rights Act, OCR has jurisdiction over issues involving access to         educational opportunities for language minority LEP students. OCR does not, however, enforce any law, regulation or policy that requires, prohibits or encourages the use of bilingual education programs as opposed to other educational approaches to meet the needs of LEP students. *Bilingual education is one of several programs a school district could choose to implement to fulfill its obligation under Title VI.*

OCR is responsible for enforcing Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color or national origin. In *Lau v. Nichols*, the Supreme Court affirmed the Department of Education Memorandum of May 25, 1970, that directed school districts to take steps to help LEP students overcome language barriers and to ensure that they can participate meaningfully in the district's educational programs.

Neither Title VI nor OCR requires or advocates a particular program of instruction for LEP         students. However, federal law does require that programs to educate children with limited English proficiency be: based on sound educational theory; adequately supported so that the program has a realistic chance of success (with adequate and effective staff and resources); and periodically evaluated and revised, if necessary. These requirements are set forth in long-standing OCR policy         which is based on the analytical framework formulated by the Fifth Circuit in the landmark case of *Castañeda v. Pickard*. Both the *Lau* and *Castañeda* cases support OCR policy that provides schools districts with flexibility in selecting educational program models that meet Title VI obligations.

Other areas addressed by OCR policy include investigative guidance for determining whether a school district is meeting its Title VI obligations to: identify and evaluate students who may be in need of English language services; monitor and appropriately address the needs of those students as to whether they are in fact learning English as well as how they are performing academically; ensure that qualified teachers and appropriate resources are being provided to support the success of the program model chosen by the district; and exit students from the alternative language program once they are proficient enough in English to participate meaningfully in the regular program. In addition, where the district has chosen to temporarily emphasize language instruction over academic instruction, districts must follow up to ensure that students are provided with compensatory and supplemental education to address the deficiencies in other content areas that may have occurred during this period. All of these areas of compliance with Title VI, as identified in OCR policy documents, reflect longstanding Federal case law.

OCR policy on access to educational opportunity for LEP students is consistent with sound education policies. OCR policy requires that districts provide LEP students meaningful access to the educational program, including district programs that emphasize high standards. OCR policy, clearly supported by Federal case law, provides great flexibility to districts regarding how they will fulfill that obligation. The Administration's broader educational policy is in fact to support innovative and high quality educational programs designed to raise academic standards so that *all*of our nation's students may reach their fullest potential and be equipped to meet the global economic and         social challenges of the next millennium. 

What are the consequences when schools do not provide LEP students with services to address their lack of proficiency in English? They are consequences we cannot afford as a nation: exclusion of         LEP students from the educational program; repeated failure in the classroom, falling behind in grade, and dropping out of school; inappropriate placement of LEP students in special education classes; and foreclosed access to high track courses, gifted and talented programs, and our national high standards education reform efforts.

OCR's work in this area has had a profound impact on millions of students' access to a meaningful education. For example, in 1993 OCR initiated a compliance review of the Farmington Public Schools in         Michigan regarding whether the district was providing access to meaningful participation in the district's educational program to limited English proficient students. As a result of the review, the District developed a plan to promote equity and excellence in the District's education program for LEP students. The implementation of the agreement has increased the English language proficiency of LEP students and LEP students have made significant academic gains. In fact, LEP students are beginning to close the gap between their overall performance and the performance of non-LEP students. 

Another example of the positive effects of OCR policy and compliance efforts are the results accomplished through our work with the Adams County School District #50 in Colorado. To meet its Title VI obligations, the District selected a program that is structured to focus on increasing English language proficiency. The program encompasses the core content curriculum and has allowed LEP students to participate and progress in the District's educational program. Because of our collaborative efforts with the district, LEP students are closing the gap between their overall performance and the performance of non-LEP students. Former LEP students raised their academic performance as a result of OCR's assistance, as measured by standardized test results, improved graduation rates, and reduced drop out rates. Most promising, the graduation rate for former LEP students was 100% -- truly a remarkable achievement.

Conclusion

Thank you for the opportunity to share with you information about OCR's efforts to provide equal access to educational opportunity for all students. I would be pleased to respond to any questions you may have.

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