June 14, 2016

Dear Colleagues:
I am writing today to make you aware of the attached Statement of Interest (“SOI”) filed by the
U.S. Department of Justice (“DOJ”) and the U.S. Department of Education (“ED”) in T.R. v. The
School District of Philadelphia. [1] The United States is not a party in that case, but, through
DOJ and ED, filed the SOI to explain to the court its interpretation of the correct legal standard
governing the language-based discrimination claims of these Limited English Proficient
(“LEP”) [2] parents under Title VI of the Civil Rights Act of 1964 (“Title VI”) and the Equal
Educational Opportunities Act of 1974 (“EEOA”). The SOI addresses, among other matters, the
extent to which individualized education programs (“IEPs”) of children with disabilities must be
translated for LEP parents under Title VI and the EEOA.
Title VI is a civil rights law that prohibits discrimination on the basis of race, color, or national
origin in any educational program or activity that receives Federal financial assistance. In the
SOI, the United States explains that there is longstanding case law and guidance establishing that
national origin discrimination under Title VI includes language-based discrimination; thus, under
Title VI, federally-funded recipients (including state educational agencies and school districts)
must provide language assistance to LEP persons to ensure meaningful access to the benefits of
the recipient’s programs or activities. As further explained in the SOI, in 2002, DOJ issued
guidance that clarifies how recipients could plan to meet their obligations to provide language
access under Title VI. [3] The 2002 guidance indicates that an effective LEP plan includes the
translation of “vital written materials” into the language of each frequently-encountered LEP
group eligible to be served and/or likely to be affected by a recipient’s program.
Whether a document is “vital written material” depends upon the importance of the program,
information, encounter, or service involved, and the consequence to the LEP person if the
information in question is not provided accurately or in a timely manner. Accordingly, in the
[1]

Case No. 15-04782 (E.D. Pa.). The SOI, which was filed on January 25, 2016, is available at
www.lep.gov/resources/EOS_SOI_Philly_012716.pdf.
[2]
The term “LEP” as used herein refers to individuals who are limited in their English proficiency on account of
their national origin, including but not limited to their ancestry, foreign birth, or home languages other than
English. LEP students are also commonly referred to as English learners or English language learners.
[3]
DOJ Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455 (June 18, 2002), available at
https://www.justice.gov/crt/about/cor/lep/DOJFinLEPFRJun182002.pdf.

SOI, the United States declares that a student’s IEP is vital, and that other documents related to a
student’s special education program, as well as their regular education program, will also often
meet these criteria because they will be vital to parents understanding their children’s education
placement, progress, and recommendations from the district.
Under Title VI, all vital documents, including a student’s IEP, must be accessible to LEP
parents, but that does not necessarily mean that all vital documents must be translated for every
language in the district. For example, a timely and complete oral interpretation or translated
summary of a vital document might suffice in some circumstances. A district must, however, be
prepared to provide timely and complete translated IEPs to provide meaningful access to the IEP
and the parental rights that attach to it. This is because a parent needs meaningful access to the
IEP not just during the IEP meeting, but also across school years to monitor the child’s progress
and ensure that IEP services are provided.
Additionally, in the SOI, the United States also explains that the EEOA requires state educational
agencies and school districts to take appropriate action to overcome language barriers of LEP
parents and that “appropriate action” includes translations and oral interpretations for LEP
parents.
The United States’ SOI is not explaining the requirements in the Individuals with Disabilities
Education Act (“IDEA”) for translation. There is no comparable requirement in the IDEA or in
the IDEA Part B regulations that IEPs must be translated under these circumstances. Under 34
CFR §300.322(e), the public agency must take whatever action is necessary to ensure that the
parent understands the proceedings of the IEP Team meeting, including arranging for an
interpreter for parents with deafness or whose native language is other than English.
Additionally, IDEA requires that certain notices to parents be provided in the parent’s native
language, unless clearly not feasible to do so. See 20 U.S.C. 1415(b)(4) (prior written notice);
20 U.S.C. 1415(d)(2) (procedural safeguards notice); see also 34 CFR §300.503(c) (notice in
understandable language).
Instead, the SOI reiterates and clarifies that under Title VI and the EEOA, state educational
agencies and school districts have independent responsibilities to provide LEP parents of
children with disabilities meaningful access through timely and complete translation and oral
interpretation.
If you have questions regarding this SOI, please contact Lisa Pagano at Lisa.Pagano@ed.gov. If
you have questions regarding Title VI obligations, you may also send an email to OCR@ed.gov.
Best
Ruth
Ruth E. Ryder
Acting Director
Office of Special Education Programs


Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

)
T.R., a minor, individually, by and through her
)
parent, Barbara Galarza, and on behalf of all others )
similarly situated,
)
)
BARBARA GALARZA, individually, and on
)
behalf of all others similarly situated,
)
)
A.G., a minor, individually, by and through his
)
parent, Margarita Peralta, and on behalf of all
)
others similarly situated,
)
)
MARGARITA PERALTA, individually, and on
)
behalf of all others similarly situated,
)
)
Plaintiffs,
)
)
v.
)
)
THE SCHOOL DISTRICT OF PHILADELPHIA, )
)
Defendant.
)
)

Civil Action No. 15-04782-MSG

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 2 of 28

TABLE OF CONTENTS

INTEREST OF THE UNITED STATES………………………………………………………....1
BACKGROUND………………………………………………………………………………….2
ARGUMENT………………………………………………………………………………...........4
I.

Language-Based Discrimination Constitutes a Form of National Origin
Discrimination Prohibited by Title VI ………………………………………………..6
A. Courts Have Consistently Found that Language-Based Discrimination Constitutes
National Origin Discrimination…………………………………………………...6
B. Federal Regulations and Guidance Make Clear that Language-Based
Discrimination is a Form of National Origin Discrimination…………………….8

II.

The District Must Take “Reasonable Steps To Ensure Meaningful Access” and Its
Misapplication of DOJ’s 2002 Guidance Should Be Rejected………..……………..10

III.

LEP Individuals May Enforce Title VI in Cases of Intentional Discrimination …….15
A. Neither Animus Nor Direct Evidence Is Necessary to Prove Discriminatory
Intent……………………………………………………………………………..16
B. Plaintiffs’ Allegations of Intentional National Origin Discrimination…………..18

IV.

The District Mistakenly Relies on K.A.B. and Mumid……………………………….20

V.

Section 1703(f) of the EEOA Requires Districts to Take Appropriate Action to
Overcome Language Barriers of LEP Parents……………………………….…........22

CONCLUSION………………………………………………………………………………..…25

Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 3 of 28

INTEREST OF THE UNITED STATES
The United States respectfully submits this Statement of Interest pursuant to 28 U.S.C.
§ 517 1 to ensure that the national origin nondiscrimination protections of Title VI of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000d - 2000d-7, and its implementing regulations, 28 C.F.R.
Part 42 and 34 C.F.R. Part 100 (Title VI), are applied properly. The United States has a critical
interest in ensuring that recipients of federal financial assistance, such as the School District of
Philadelphia (District), provide Limited English Proficient (LEP) 2 parents a meaningful
opportunity to participate in the development of their children’s education programs. That
opportunity is guaranteed them by Title VI’s prohibitions against national origin discrimination,
as implemented by the U.S. Department of Education (ED), the U.S. Department of Justice
(DOJ), and the courts.
The United States’ interest in this case also concerns the application of the Equal
Educational Opportunities Act (EEOA), 20 U.S.C. § 1701 et seq. Section 1703(f) of the EEOA
prohibits state and local educational agencies from denying “equal educational opportunity to an
individual on account of his or her…national origin” by failing to take “appropriate action to
overcome language barriers that impede equal participation by students in instructional
programs.” 20 U.S.C. § 1703(f). As the agency charged with enforcing the EEOA, DOJ has a
significant interest in ensuring that courts correctly interpret the statute. See 20 U.S.C. §§ 1706,
1709. 3 Given the critical role parents play in seeking and securing educational opportunities for
their children, a district’s failure to overcome the language barriers of an LEP parent through free

1

“The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any
State or district in the United States to attend to the interests of the United States in a suit pending in a court of the
United States, or in a court of a State, or to attend to any other interest of the United States.” 28 U.S.C. § 517.
2
The term “LEP” as used herein refers to individuals who are limited in their English proficiency on account of
their national origin, including but not limited to their ancestry, foreign birth, or home languages other than English.
3
The EEOA authorizes DOJ to bring civil actions and intervene in private actions. 20 U.S.C. §§ 1706, 1709. See
examples of DOJ’s EEOA cases at http://www.justice.gov/crt/educational-opportunities-cases#origin.

Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 4 of 28

translation and oral interpretation denies the child an equal educational opportunity on the basis
of national origin. LEP parents must be given a meaningful opportunity to understand regular
and special education documents to identify the needs of their children, monitor their educational
services, and enable their children’s participation in the District’s instructional programs. For
example, without such access, neither the parents nor the District can ensure the language needs
of English Learner (EL) students are addressed, as the EEOA requires. 4
BACKGROUND
Plaintiffs allege that the District systematically denies meaningful access to information
that LEP parents of children with disabilities need to understand to participate in their children’s
education. Compl. ¶ 1. These denials include failing to translate and sufficiently interpret
critical documents provided to non-LEP parents, and inadequately interpreting communications
with school staff. Id. ¶¶ 4, 57. Plaintiffs, two special education students, A.G. and T.R., and
their LEP parents, bring claims under Title VI and the EEOA, and assert class claims as
representatives of thousands of other similar students and parents in the District.
The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.,
contains procedures for ensuring the unique educational needs of eligible students with
disabilities are appropriately addressed. These procedures include the development of an
Individualized Educational Program (IEP), which is a document reflecting the educational plan
for the student. The IEP is developed jointly at an IEP team meeting of the student’s parents,
teachers, and school staff. 5 IEP team meetings are conducted at least annually 6 and often involve

4

The United States is addressing only Plaintiffs’ Title VI and EEOA claims.
An IEP includes the student’s present level of academic achievement and functional performance, measurable
annual goals, progress measures and reporting, and the extent to which a student with a disability will participate in
the general curriculum and extracurricular activities. See 20 U.S.C. § 1414(d)(1)(A)(i); 34 C.F.R. § 300.320.
6
20 U.S.C. § 1414(d)(4)(A)(i).
5

2

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multiple documents, such as IEPs, IEP Team Meeting Invitations, Notices of Recommended
Educational Placements (NOREPs)/Prior Written Notices, Procedural Safeguards Notices,
Permission to Evaluate forms, and progress reports. Id. ¶¶ 6-7 (collectively, “IEP process
documents,” as defined by Plaintiffs). As of November 2013, 1,887 students with IEPs in the
District indicated that their home language was not English. Id. ¶ 52. Yet only 487 IEP process
documents were interpreted in non-English languages in the 2012-13 school year. Id. ¶ 53.
Despite this significant number of LEP families in the District’s special education
program, the complaint alleges that the District routinely fails to timely and completely translate
documents used for students with disabilities. Id. ¶¶ 7, 55. Plaintiffs also allege that the District
has refused to timely and fully translate report cards, progress reports, homebound forms, and
pre-English Language class placement letters. Id. ¶¶ 6-7 (“regular education documents”). This
means that non-LEP parents receive these documents in a language they can understand
(English), but LEP parents do not. Id. Ms. Galarza, T.R.’s parent, asked the District to provide
her with all documents in Spanish, but the District failed to provide several. Id. ¶¶ 63-69. At
one of T.R.’s IEP meetings, the District provided Ms. Galarza with a 52-page draft IEP in
English only. Id. ¶ 64. An interpreter was present via telephone but did not interpret much of
the IEP. Id. Similarly, A.G.’s parent, Ms. Peralta, notified the District on three separate
occasions that the family’s home language was Spanish, but the District never provided her a
translated IEP or other critical documents. Id. ¶¶ 72, 73, 75. She received a draft IEP with only
the headings translated and only three of its 44 pages were orally interpreted at the meeting. Id. ¶
75, Ex. B.
T.R.’s and A.G.’s parents filed due process complaints under the IDEA. A Hearing
Officer held that they were denied meaningful participation in the IEP process due to the
3

Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 6 of 28

District’s failure to provide timely and complete translations of vital IEP process documents. Id.
¶ 13. The Hearing Officer ordered compensatory instruction for T.R. and A.G., but did not order
relief regarding translations or interpretation for their parents after concluding that he lacked the
power to order District-wide systemic change. Id. Plaintiffs sued, and the District moved to
dismiss Plaintiffs’ claims under Fed. R. Civ. P. 12(b)(6), making several incorrect arguments.
ARGUMENT
The District argues that the Plaintiffs’ systemic claims, including those under Title VI
and the EEOA, should be dismissed because the IDEA does not specify that all IEP process
documents must be translated. However, the IDEA is not the only statute governing language
access rights to educational documents. While the IDEA expressly includes certain protections
for LEP parents during the special education process, 7 the IDEA does not override a district’s
independent obligations under Title VI and the EEOA. 8 These obligations include providing
LEP parents meaningful access through translation and oral interpretation.
The District argues that LEP individuals are not protected by Title VI. To the contrary,
for over forty years, courts and federal agencies have consistently held that a federally funded
recipient must provide language assistance to LEP persons to ensure meaningful access to the
benefits of the recipient’s programs or activities and that the denial of such access constitutes
national origin discrimination under Title VI. See infra Section I. This consistent federal
guidance is entitled to deference as the District itself acknowledges. See Def.’s Mot. at 17 n.6.
In arguing, however, that Plaintiffs fail to plead “plausible” systemic claims under Title VI or the
EEOA, the District substantially misreads this guidance.
The District also argues that Plaintiffs cannot enforce the Title VI duty to provide LEP
7
8

See, e.g., 20 U.S.C. § 1415(b)(4); 20 U.S.C. § 1415(d)(2).
Neither Title VI nor the EEOA requires exhaustion. See 42 U.S.C. § 2000d et seq.; 20 U.S.C. § 1701 et seq.

4

Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 7 of 28

persons meaningful access because private actions to enforce the Title VI disparate impact
regulations are barred. However, courts have held that claims of intentional discrimination by
LEP individuals, such as the claims in this case, can be made under Title VI. Taking the
allegations as true in the light most favorable to the Plaintiffs, as is required at the motion to
dismiss stage, 9 Plaintiffs allege sufficient facts to establish a plausible claim that the District
intentionally discriminates on the basis of national origin in violation of Title VI under the Third
Circuit’s deliberate indifference standard and the framework established in Village of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977). Moreover, questions of
intent, such as those raised by the District, are inherently fact-based determinations and thus are
generally inappropriate for resolution at the motion to dismiss stage. See Pryor v. NCAA, 288
F.3d 548, 565 (3d Cir. 2002) (“[I]ssues involving state of mind (e.g., intent) are often unsuitable
for a 12(b)(6) motion to dismiss”).
The District further argues that “discrimination based on English proficiency is not the
same as discrimination based on national origin,” relying heavily on K.A.B. ex rel. Susan B v.
Downingtown Area Sch. Dist., No. 11-1158, 2013 WL 3742413 (E.D. Pa. Jul. 16, 2013) and
Mumid v. Abraham Lincoln High School, 618 F.3d 789 (8th Cir. 2010). Def.’s Mot. at 23-24.
But neither case involved the denial of language access to LEP parents, or addressed Lau v.
Nichols, 414 U.S. 563 (1974), its progeny, and decades of federal guidance about Title VI.
These cases also did not consider the deliberate indifference and Arlington Heights approaches to
establishing intentional discrimination under Title VI that Plaintiffs have pled here.
Finally, Plaintiffs have sufficiently alleged that the District is violating Section 1703(f) of
the EEOA by failing to take appropriate action to overcome the language barriers of students
9

See Brown v. Card Serv. Ctr., 464 F.3d 450, 452 (3d Cir. 2006) (all statements of facts and appropriate inferences
should be taken in support of the party opposing the motion to dismiss); see also Def.’s Mot. at 13.

5

Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 8 of 28

with disabilities and their LEP parents. Failing to translate or provide adequate oral
interpretation of regular education and IEP process documents impedes these students’ equal
participation in the District’s instructional programs and thereby denies them equal educational
opportunities on account of national origin.
I.

Language-Based Discrimination Constitutes a Form of National Origin
Discrimination Prohibited by Title VI
Under Title VI, “[n]o 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 subjected to
discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C.
§ 2000d. Decades of federal case law and guidance interpreting Title VI and its regulations
establish that language-based discrimination is unlawful discrimination based on national origin.
As a federally funded recipient, the District had a clear obligation to take reasonable steps to
provide LEP parents meaningful access to IEP process and regular education documents.
A. Courts Have Consistently Found that Language-Based Discrimination
Constitutes National Origin Discrimination
Well-established federal judicial precedent holds that Title VI’s prohibition against
national origin discrimination covers discrimination against individuals who are limited in their
English proficiency on account of their national origin, including their ancestry. Indeed, over 40
years ago in Lau, the Supreme Court held that Title VI requires language assistance services to
ensure LEP individuals have meaningful access to a recipient’s programs and activities, and that
the denial of such access constitutes national origin discrimination. Lau, 414 U.S. at 564-68.
In Lau, a school district failed to provide language assistance to LEP students of Chinese
ancestry. Id. at 564. The Court ruled that the school district’s failure violated Title VI because
“students who do not understand English are effectively foreclosed from any meaningful
6

Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 9 of 28

education” without language assistance. Id. at 566-69. Finding national origin discrimination
against the Chinese-speaking students “obvious,” 10 the Court explained that “[w]here inability to
speak and understand the English language excludes national origin-minority group 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.” Id. at 568 (quoting Dep’t of Health, Educ., and Welfare,
Identification of Discrimination and Denial of Services on the Basis of National Origin, 35 Fed.
Reg. 11,595 (July 18, 1970) (1970 Memorandum)). 11
Consistent with Lau, federal courts have repeatedly held that language-based
discrimination constitutes national origin discrimination prohibited by Title VI. See, e.g.,
Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1116-17 (9th Cir. 2009) (denying
challenge to federal agency’s guidance on LEP access and noting that Lau concluded that
“discrimination against LEP individuals was discrimination based on national origin in violation
of Title VI”); Serna v. Portales Mun. Schs., 499 F.2d 1147, 1152-54 (10th Cir. 1974) (school
district’s failure to rectify language deficiencies to provide LEP students with meaningful
education violates Title VI); U.S. v. Maricopa Cnty., 915 F. Supp. 2d 1073, 1079-80 (D. Ariz.
2012) (quoting Lau and relying on federal LEP guidance in case alleging discrimination against
LEP prisoners); Almendares v. Palmer, 284 F. Supp. 2d 799, 806-07 (N.D. Ohio 2003) (denying
motion to dismiss Title VI intentional discrimination claim where plaintiffs alleged food stamp
program failed to ensure bilingual services despite knowing harm to Spanish-speaking
individuals); Jones v. Gusman, 296 F.R.D. 416, 454 (E.D. La. June 6, 2013) (in case about prison
10

The Court stated: “It seems obvious that the Chinese-speaking minority receive fewer benefits than the Englishspeaking majority from respondents’ school system which denies them a meaningful opportunity to participate in the
educational program—all earmarks of the discrimination banned by the regulations.” Id. (footnote omitted).
11
ED’s predecessor agency, the Department of Health, Education, and Welfare (HEW), issued this memorandum.

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conditions, noting that “longstanding case law, federal regulations and agency interpretation of
those regulations hold language-based discrimination constitutes a form of national origin
discrimination under Title VI”) (internal citation omitted); see also Yniguez v. Arizonans for
Official English, 69 F.3d 920, 947 (9th Cir. 1995) (en banc) (noting that “language is a close and
meaningful proxy for national origin”), vacated on other grounds sub nom, Arizonans for
Official English v. Ariz., 520 U.S. 43 (1997).
B. Federal Regulations and Guidance Make Clear that Language-Based
Discrimination is a Form of National Origin Discrimination
DOJ is responsible for coordinating federal agency compliance and enforcement under
Title VI. 12 For 40 years, DOJ’s regulations have required that federal funding recipients take
reasonable steps to communicate with LEP persons in languages other than English to ensure
meaningful access under Title VI. 28 C.F.R. § 42.405(d)(1) (1976). 13 These regulations require
that recipients “take reasonable steps” to “provide information in appropriate languages” to LEP
persons so that they are effectively “informed of” or able to “participate in” the recipient’s
program. Id. DOJ also has provided guidance to federal agencies on the standards that their
funding recipients must follow to ensure programs are accessible to LEP persons. 14
For over 45 years, ED has put school districts on notice that Title VI requires providing
LEP parents meaningful access to information about school programs and activities. In its 1970
12

See Executive Order No. 12250, Leadership and Coordination of Nondiscrimination Laws, 45 Fed. Reg. 72,995
(Nov. 2, 1980); Executive Order No. 13166, Improving Access to Services for Persons with Limited English
Proficiency, 65 Fed. Reg. 50,121 (Aug. 16, 2000) (“Exec. Order No. 13166”); see also 28 C.F.R. § 42.401; 28
C.F.R. § 50.3 (guidelines for federal agencies in their enforcement of Title VI).
13
See also Nat’l Multi Hous. Council v. Jackson, 539 F. Supp. 2d 425, 430 (D.D.C. 2008) (“Longstanding Justice
Department regulations also expressly require communication between funding recipients and program beneficiaries
in languages other than English to ensure Title VI compliance.”).
14
See DOJ Enforcement of Title VI of the Civil Rights Act of 1964 – National Origin Discrimination Against
Persons With Limited English Proficiency, Policy Guidance, 65 Fed. Reg. 50,123 (Aug. 16, 2000); DOJ Guidance to
Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination
Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455 (June 18, 2002) (2002 Guidance) (amplifying
compliance standards from 2000 Guidance); see also Executive Order No. 13166.

8

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Memorandum interpreting Title VI, ED explained that “[s]chool districts have the responsibility
to adequately notify national origin-minority group 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.” 35 Fed. Reg. 11,595. In 1974, the Supreme Court endorsed
ED’s 1970 Memorandum in Lau. Lau, 414 U.S. at 567. Congress then effectively codified
Lau’s holding in Section 1703(f) of the EEOA. See Castaneda v. Pickard, 648 F.2d 989, 1008
(5th Cir. 1981) (“[T]he essential holding of Lau has…been legislated by Congress.”). ED reaffirmed the principles in its 1970 Memorandum and Lau in 1979, 1985, 1990, 1991 and 2000. 15
In 2015, DOJ and ED reminded districts of their “obligation to ensure meaningful
communication with LEP parents in a language they can understand and to adequately notify
LEP parents of information about any program, service, or activity of a school district…that is
called to the attention of non-LEP parents.” DOJ & ED Dear Colleague Letter: English Learner
Students and Limited English Proficient Parents (Jan. 7, 2015) (January 2015 DCL), at 37. 16
The January 2015 DCL further reminds districts that “[u]nder Title VI and EEOA, for an LEP
parent to have meaningful access to an IEP or Section 504 plan meeting, it…may be necessary to
have the IEPs…or related documents translated into the parent’s primary language.” Id. at 27

15

See Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race, Color, National
Origin, Sex, and Handicap in Vocational Education Programs, 44 Fed. Reg. 17,162 (Mar. 21, 1979), codified at 34
C.F.R. Part 100 App. B (including LEP parents among the parties to whom schools are required to provide
information in native languages); Policy Regarding the Treatment of National Origin Minority Students Who Are
Limited English Proficient (Dec. 3, 1985 and reissued Apr. 6, 1990), available at
www.ed.gov/about/offices/list/ocr/docs/lau1990_and_1985.html; Policy Update on Schools’ Obligations Toward
National Origin Minority Students With Limited-English Proficiency (Sept. 27, 1991), at
http://www2.ed.gov/about/offices/list/ocr/docs/lau1991.html; The Provision of an Equal Education Opportunity to
Limited-English Proficient Students (Aug. 2000) (“[w]hether a school district ensures that parents who are not
proficient in English are provided with appropriate and sufficient information about all school activities” is a factor
ED considers when assessing Title VI compliance), at http://www2.ed.gov/about/offices/list/ocr/eeolep/index.html).
16
Available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf.

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n.76. 17 The District concedes that this Court should defer to DOJ’s guidance on a recipient’s
obligation to ensure meaningful access to LEP persons. Def.’s Mot. at 17 n.6.
II.

The District Must Take “Reasonable Steps To Ensure Meaningful Access” and Its
Misapplication of DOJ’s 2002 Guidance Should Be Rejected
Because language-based discrimination is a form of national origin discrimination under

Title VI, federally funded recipients must take “reasonable steps” to ensure “meaningful access”
to their programs and activities for LEP persons. 28 C.F.R. § 42.405(d)(1); 2002 Guidance, 67
Fed. Reg. at 41,459; see also supra Section I.B. Indeed, the District does not dispute this
obligation. Def.’s Mot. at 8, 17-18. However, the District misinterprets DOJ’s 2002 Guidance
regarding language access planning. The 2002 Guidance clarifies how recipients could plan to
meet their obligations to provide language access under Title VI. 2002 Guidance, 67 Fed. Reg.
at 41,457. 18 Recognizing that recipients could most effectively and efficiently ensure
meaningful access by planning in advance for how they would provide translations and
interpreters, and expand such services in ways that prioritize the greatest needs, the 2002
Guidance offers recipients a recommended planning process. That planning process, however,
does not replace the Title VI duty to provide meaningful access to LEP individuals.
The District misinterprets this obligation and may not use the 2002 Guidance’s fourfactor analysis as a shield against LEP parents’ Title VI or other claims that such access was
denied. See Def.’s Mot. at 17-18. As the Guidance explains, recipients analyze these four
factors to develop an LEP plan: (1) the number or proportion of LEP persons the recipient
17

DOJ’s enforcement of the Title VI and EEOA duty to provide meaningful access to LEP parents is illustrated by
settlements requiring districts to translate IEPs and other IEP process and regular education documents in languages
common among LEP parents in the District. These settlements provide further notice to districts of their Title VI
and EEOA duties. See, e.g., Lau v. San Francisco Unified Sch. Dist., 4:70-cv-00627, ECF #199-1 (June 24, 2015);
Congress of Hispanic Educators v. Denver Sch. Dist., No. 1:95-cv-02313-RPM, ECF #56-1 (Sept. 28, 2012).
18
The Guidance states that it is intended to “clarify existing legal requirements for LEP persons by providing a
description of the factors recipients should consider in fulfilling their responsibilities to LEP persons.” Id.

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serves or encounters in the eligible service population; (2) the frequency with which LEP
individuals come in contact with the program, activity or service; (3) the nature and importance
of the program, activity or service to people’s lives; and (4) the resources available to the
recipient. 2002 Guidance, 67 Fed. Reg. at 41,459. These factors help the recipient decide if its
LEP plan needs to include translating materials into certain languages. Id. at 41,463. The
District effectively concedes that some translations are needed, but argues that Plaintiffs’
“systemic” claims should be dismissed because the 2002 Guidance does not require translating
all the documents at issue in all languages represented by the class. See Def.’s Mot. at 16-18.
The District’s argument should be rejected because it misconstrues the four-factor analysis and
the related concept of translating “vital written materials” discussed in the 2002 Guidance. See
67 Fed. Reg. at 41,463.
Given the importance of the District’s educational programs, the large number of LEP
parents in the District, and the frequency with which they need access to such programs,
application of the four-factor analysis clearly requires “an effective LEP plan [that] includes the
translation of vital written materials into the language of each frequently-encountered LEP group
eligible to be served and/or likely to be affected by the recipients’ program.” Id. at 41,463. 19
Whether a document is a “vital written material” depends “upon the importance of the program,
information, encounter, or service involved, and the consequence to the LEP person if the
information in question is not provided accurately or in a timely manner.” Id. That a document
is “vital” means it must be accessible to LEP parents, but that does not necessarily mean it must
be translated for every language in the District. Id. (“The languages spoken by the LEP

19

Though resources are a relevant factor, the Guidance cautions that “[r]ecipients should carefully explore the most
cost-effective means of delivering competent and accurate language services before limiting services due to resource
concerns.” Id. at. 41,460.

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individuals with whom the recipient has contact determine the languages into which vital
documents should be translated.”). As the Guidance recognizes, “reasonable steps may cease to
be reasonable where the costs imposed substantially exceed the benefits.” Id. For example, a
timely and complete oral interpretation or translated summary of a vital document might suffice
in some circumstances. See id. at 41,456, 41,460.
Because of its central role in the special education process, the legal rights that attach to
it, 20 and the potential harm if a LEP parent cannot understand it in a timely manner, the child’s
IEP meets the Guidance’s criteria for “vital written material.” See id. at 41,463; see, e.g., D.S. v.
Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010) (An IEP is the “centerpiece of the
IDEA’s system for delivering education to disabled children”) (internal quotation marks
omitted). Other IEP process and regular educations documents also will often meet these criteria
because they will be vital to parents understanding their children’s educational placement,
progress, and recommendations from the District. For example, a LEP parent unable to
understand the information on the NOREP would not know that the District wants to change his
or her child’s placement. A LEP parent who does not understand an IEP progress report or a
report card cannot assess a child’s progress and whether additional services are needed. Any
substantive dialogue at the IEP meeting requires the LEP parent to have meaningful access to
these documents to understand the child’s disabilities and the services the District proposes.
The District seeks to dismiss Plaintiffs’ class claims for translated IEP process
documents, arguing that the 2002 Guidance “makes clear that the need for translation must be
determined on a case-by-case basis.” Def.’s Mot. at 1, 2, 8. The District misconstrues the
Guidance’s reference to “case-by-case basis” and argues that a recipient’s duty to translate can
20

See, e.g., 20 U.S.C. 1415(b)(6) and (c)(2) (due process complaint), (e) (mediation), and (f) (impartial due process
hearing); 34 CFR §§300.151-300.153 (right of an organization or individual to file a State IDEA Part B complaint).

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only be determined based on the particular factual circumstances of that LEP individual. Id. at 8,
17-18. The District further argues that Plaintiffs’ systemic claims should be dismissed because it
has “discretion to make such individualized determinations.” Id. at 18. As is clear from the full
context of the Guidance, the reference to “case-by-case basis” does not relieve the District from
its duty to assess the needs of “each frequently-encountered LEP group” for translated
documents at the broader “program or activity” level. 2002 Guidance, 67 Fed. Reg. at 41,463.
As the Guidance explains, after applying the four factors, a recipient may conclude that
“some of its activities will be more important than others and/or have greater impact on or
contact with LEP persons, and thus may require more in the way of language assistance.” Id. at
41,455 (emphasis added). However, “[t]he flexibility that recipients have in addressing the
needs of the LEP populations they serve does not diminish, and should not be used to minimize,
the obligation that those needs be addressed.” Id. at 41,459. For example, “well-substantiated
claims of lack of resources to translate all vital documents into dozens of languages do not
necessarily relieve the recipient of the obligation to translate those documents into at least
several of the more frequently-encountered languages and to set benchmarks for continued
translations into the remaining languages over time.” Id. at 41,461. After explaining this
example, the Guidance concludes that “the extent of the recipient’s obligation to provide written
translations of documents should be determined by the recipient on a case-by-case basis, looking
at the totality of the circumstances in light of the four-factor analysis.” Id.
This Guidance on translating vital materials clearly contemplates a fact-specific analysis
about various categories of documents for a range of programs based on the importance of the
program and the frequency of the “LEP groups.” Id. at 41,463. An LEP implementation plan
sets forth which documents the District will translate and into which languages to ensure timely
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access to vital written material. Id. at 41,464-41,465. Making a person-by-person determination
of the four factors, as the District suggests, would be unworkable and deny LEP parents timely
and meaningful access to vital material as each parent awaited the District’s determination as to
whether he or she met the criteria for translating documents that non-LEP parents timely receive.
Id. at 41,461 (“To be meaningfully effective, language assistance should be timely.”).
The due process hearings of the named Plaintiffs show how failing to ensure access to
IEP process documents through translation can have serious adverse consequences. For
example, each IEP of the named Plaintiffs was over 40 pages long. See, e.g., Compl. ¶¶ 64, 75.
With such lengthy and complex documents, the meeting may not afford enough time to orally
interpret the documents and permit the LEP parent’s meaningful participation. The Hearing
Officer found that “[t]o the extent that meetings [were] devoted to reading documents out loud in
[Guardian’s native language], the requisite discussion did not happen at all.” Compl. Ex. B at
11; see also Compl. Ex. A at 9 (“Reading a mostly English document in [guardian’s native
language] is not the dialogue contemplated by the IDEA.”). As the Hearing Officer noted,
“having the documents in an accessible form either during the meetings, or prior to the meetings
when mandated is critical to meaningful participation.” Compl. Ex. A at 9.
Moreover, a parent needs meaningful access to the IEP process and regular education
documents not just during the IEP meeting, but also across school years to monitor the child’s
progress and ensure that IEP services are provided. For example, an LEP parent’s ability to
challenge an IEP is denied if the parent does not understand the IEP or related progress reports
because they are LEP. Even if a qualified individual orally interprets the entire IEP at the
meeting, a school district cannot reasonably expect the LEP parent to remember all terms of such
a lengthy and technical IEP. Districts do not expect this of non-LEP parents when they provide
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them a copy of the child’s final IEP that they can refer to whenever they see fit. Thus, for these
reasons, under Title VI, the District must be prepared to provide translated IEPs to provide
meaningful access to the IEP and the parental rights that attach to it.
The District asserts that requiring it to translate “each and every IEP process document”
would be “incredibly burdensome” for the “already financially strapped” District and that
therefore Plaintiffs’ claims should be dismissed. Def.’s Mot. at 20. This resource defense is the
District’s burden to prove and demands a fact-specific inquiry that is not appropriate for
resolution at the motion to dismiss stage. At this stage in the litigation, the Court must take as
true Plaintiffs’ allegations that the District already has resources available for translation
services, namely, the District’s Translation and Interpretation Center and the Commonwealth’s
Trans Act service. Compl. ¶¶ 54, 60. Moreover, any factual dispute about costs must be
considered in the context of the other factors, including the vital nature of the documents at issue.
Taking the District’s misreading of the 2002 Guidance to its logical conclusion, an LEP
plaintiff seeking to enforce his or her right to translation or interpreter services would have to
conduct the recipient’s four-factor analysis and prove that the LEP plan would have required
translation. Such an approach would be unworkable and is not required by the 2002 Guidance.
LEP individuals obviously lack access to information needed for this analysis, such as the
resources available to the recipient, and should not have their claims dismissed at the complaint
stage on this basis.
III.

LEP Individuals May Enforce Title VI in Cases of Intentional Discrimination
The District cites Alexander v. Sandoval, 532 U.S. 275 (2001), to argue that Plaintiffs are

barred from enforcing the regulations promulgated under Section 602 of Title VI. Def.’s Mot. at
25. However, Sandoval does not bar a private plaintiff from asserting an intentional
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discrimination claim under Title VI. Taking the facts alleged in the light most favorable to the
Plaintiffs, as is necessary at the motion to dismiss stage, see supra note 9, Plaintiffs allege
sufficient facts to establish plausible Title VI claims of intentional discrimination. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
complaint alleges that the District is aware of the widespread need of LEP parents to obtain
timely and complete translations of IEP process and regular education documents and that the
provision of appropriate services to LEP students with disabilities depends on meeting this need.
Despite this knowledge, Plaintiffs allege the District has “acted intentionally, repeatedly, and
with deliberate indifference” by denying LEP parents meaningful access to these critical
documents. See Compl. ¶ 98; see also, e.g., id. ¶¶ 51-76, 99-103. Questions of intent are factbased and should generally not be resolved at the motion to dismiss stage. See Pryor, 288 F.3d
at 565.
The District also seeks to dismiss Plaintiffs’ “systemic claims” under Title VI and the
EEOA, arguing that Plaintiffs fail to identify a District policy that violates these laws. Def.’s
Mot. at 14-16. Although Plaintiffs allege sufficient facts to establish such a policy or practice,
Plaintiffs’ allegations on behalf of the named LEP parents and students with disabilities would
alone overcome this motion to dismiss regardless of the broader allegations. Neither law
requires evidence of a policy, pattern, or practice. See 42 U.S.C. § 2000d; 20 U.S.C. § 1703(f).
A. Neither Animus Nor Direct Evidence Is Necessary to Prove
Discriminatory Intent
The Third Circuit has held that the “deliberate indifference” standard applies to assessing
claims of intentional discrimination under Title VI. See Blunt v. Lower Merion School Dist., 767
F.3d 247, 272 (3d Cir. 2014) (citing S.H. v. Lower Merion Sch. Dist, 729 F.3d 248, 263 (3d Cir.
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Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 19 of 28

2013)). In S.H., the court adopted deliberate indifference instead of discriminatory animus as the
intent standard in the Americans with Disabilities Act (ADA) and Rehabilitation Act (RA)
context because the deliberate indifference standard was “better suited to the remedial goals of
the RA and the ADA.” S.H., 729 F.3d at 264. Blunt held that this rationale also applied to Title
VI, given that remedies available for Title VI violations are coextensive with those available
under the ADA and RA. See Blunt, 767 F.3d at 272. To establish deliberate indifference under
Title VI, Plaintiffs must show “(1) knowledge that a federally protected right is substantially
likely to be violated,” and (2) a “failure to act despite that knowledge.” S.H., 729 F.3d at 263. 21
Plaintiffs can also prove international discrimination using the Arlington Heights
framework, which sets forth a non-exhaustive set of considerations for evaluating evidence
supporting a claim of intentional discrimination, including: the impact of the decision, the
historical background of the decision, the sequence of events leading to the decision, whether the
decision departs substantively and procedurally from regular practice, and contemporaneous
statements by decision makers. Arlington Heights, 429 U.S. at 266-68. While statements
exhibiting racial animus or hostility are indicative of discriminatory intent, they are not necessary
for such a finding. See, e.g., Garza v. County of Los Angeles, 918 F.2d 763, 778 n.1 (9th Cir.
1990) (Kozinski, J., concurring and dissenting in part), cert. denied, 498 U.S. 1028 (1991). As
explained further below, the complaint alleges several of the other Arlington Heights factors so
as to sufficiently a state a claim for intentional discrimination under Title VI.
Determining whether the District was motivated at least in part by discriminatory intent
21

The Third Circuit did not adopt the more stringent deliberate indifference standard that applies to monetary
damages claims under Title IX of the Education Amendments of 1972 in the student-on-student sexual harassment
context. See Davis v. Monroe, 526 U.S. 629 (1999). Indeed, that heightened standard for financial liability is
especially not appropriate in a class action case seeking only declaratory and injunctive relief, such as this case.
Davis’s concerns about providing adequate notice to the district before holding it liable for monetary damages are
not present in this case.

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“demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be
available.” Arlington Heights, 429 U.S. at 266. The important starting point is whether an
action “bears more heavily on one race than another.” Id.; Pryor, 288 F.3d at 563 (“[T]he impact
of an official action is often probative of why the action was taken in the first place since people
usually intend the natural consequences of their actions.”) (internal citations omitted). While
impact alone is insufficient to establish intent, courts have found that “actions having foreseeable
and anticipated disparate impact are relevant evidence to prove the ultimate fact, forbidden
purpose.” Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464-65 (1979); see also Richardson
v. Penn. Dep’t of Health, 561 F.2d 489, 492 (3d Cir. 1977); Flores v. Pierce, 617 F.2d 1386,
1389 (9th Cir. 1980); Almendares, 284 F. Supp. 2d at 806-07; South Camden Citizens in Action
v. N.J. Dep’t of Envtl. Prot., 254 F. Supp. 2d 486, 497 (D. N.J. 2003).
In Almendares, the court declined to dismiss a claim by LEP food stamp recipients that
state officials purposefully discriminated based on their national origin by distributing program
materials only in English. The court relied on plaintiffs’ allegations that defendants knew the
harm caused by their failure to translate this information but did not act. Almendares, 284 F.
Supp.2d at 807-08; see also South Camden, 254 F. Supp. 2d at 497 (plaintiffs sufficiently alleged
intentional discrimination under Title VI through “disparate impact, history of the state action,
and foreseeability and knowledge of the discriminatory onus placed upon the complainants”).
B. Plaintiffs’ Allegations of Intentional National Origin Discrimination
Taking the facts alleged to be true, as is required at the motion to dismiss stage, Plaintiffs
sufficiently allege that the District has “knowledge that a federally protected right is substantially
likely to be violated,” S.H., 729 F.3d at 265, and that a failure to act would have a foreseeable
negative effect on LEP families. According to the complaint, the District knows that large
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numbers of LEP persons need access to IEP process and regular education documents, which are
critical to a child’s educational programs, and that failing to provide such access (e.g., timely,
complete translations) can result in serious adverse consequences to a child with a disability and
their LEP parents. Compl. ¶¶ 42, 52. These allegations suffice to show that the failure to
provide such interpretation and translation has the clearly foreseeable impact of denying LEP
parents the opportunity to participate in their child’s education afforded to non-LEP parents.
Plaintiffs have adequately alleged that the District knew it needed to communicate with
the parents of T.R. and A.G. in Spanish and yet denied them meaningful access to critical IEP
process and regular education documents, including through “incomplete, inconsistent” oral
interpretations of documents. Id. ¶¶ 57, 63, 72, 73. Plaintiffs allege that the District was aware
other LEP parents had similar needs. Id. ¶ 52. Plaintiffs also allege that the Translation and
Interpretation Center translates documents for nondisabled students, but has never translated an
IEP fully, id. ¶ 54, and that the Commonwealth of Pennsylvania offers a translation program,
TransAct, that the District “deliberately and inexplicably” has chosen not to use. Id. ¶ 60.
Taken as true, Plaintiffs’ allegations establish the District is well aware of the needs of
Spanish-speaking parents and has the ability to translate documents into Spanish, but has
“systemically…denied” essential translation and oral interpretation services to LEP parents. Id.
¶ 3. According to Plaintiffs’ complaint, the District is aware that class representatives and many
other LEP parents and students with disabilities are detrimentally affected by its refusal to timely
and completely translate vital IEP process and regular education documents and its insufficient
interpreting at IEP meetings. Id. ¶¶ 1, 7, 58, 103. Thus, Plaintiffs have sufficiently alleged that
the District continues its failure to act in deliberate indifference of its longstanding Title VI
obligations and the harms to LEP parents and students with disabilities. See S.H., 729 F.3d at
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262-63; Almendares, 284 F. Supp.2d at 807-08. 22
IV.

The District Mistakenly Relies on K.A.B. and Mumid
The District argues that Plaintiffs have not adequately pled a claim of national origin

discrimination under Title VI (or the EEOA) on the mistaken assumption that their LEP status
“is not enough to show that they are part of a protected class.” Def.’s Mot. at 24-25. Decades of
federal case law and guidance make clear that the prohibitions on national origin discrimination
protect LEP persons. Nor do K.A.B. and Mumid alter this longstanding precedent. Indeed, both
cases overlook it entirely, and neither considers the well-established Arlington Heights
framework or deliberate indifference approach to proving intentional discrimination.
Apart from the fact that these cases did not involve the provision of translation and
interpreter services to LEP parents, it is respectfully submitted that they were incorrectly
decided. In K.A.B., an unpublished case with pro se plaintiffs, the court relied on Mumid to hold
that “a policy that treats students with limited English proficiency differently than other students
in the district does not facially discriminate based on national origin” and found that even if
K.A.B. were a member of a protected class, the defendant had asserted a legitimate,
nondiscriminatory reason for its inaction. K.A.B., 2013 WL 3742413, at *10-11 (quoting Mumid,
618 F.3d at 795). 23 But neither case acknowledges Lau or the many other cases recognizing that

22

See also Faith Action for Cmty. Equity (FACE) v. Hawaii, No. 13-00450, 2014 WL 1691622, *10-*14 (D. Haw.
Apr. 28, 2014) (applying the Arlington Heights framework to LEP plaintiffs’ Title VI claims for intentional national
origin discrimination and denying defendants’ motion to dismiss such claims); Cabrera v. Alvarez, 977 F. Supp. 2d
969, 978 (N.D. Cal. 2013) (quoting 28 C.F.R. § 42.405(d)(1) and finding LEP plaintiffs stated a Title VI claim of
intentional discrimination when they alleged the recipient did not provide “language translation services”).
23
The other cases K.A.B. cites, Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir. 1983), Frontera v. Sindell, 522 F.2d
1215 (6th Cir. 1975), and Carmona v. Sheffield, 475 F.2d 738 (9th Cir. 1973), are inapposite to the facts alleged
here. In Soberal-Perez, the court dismissed the Title VI claim against a federal agency because it was not a recipient
of federal funding. Here, there is no question that the District is a recipient of federal funding. Frontera predates
Arlington Heights and S.H., and did not apply the intentional discrimination framework established in either of those
cases. Carmona predates Lau and therefore is inapposite to this case.

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discrimination on the basis of language constitutes national origin discrimination. 24 Indeed, a
federal court recently declined to follow Mumid given “the absence of any discussion of the
Supreme Court’s decision in Lau.” Maricopa Cnty., 915 F. Supp. 2d at 1081.
In contravention of Lau, Mumid rejected plaintiffs’ intentional discrimination claim
because not all foreign born students were subject to the delayed testing, only those who were
EL. Mumid, 618 F.3d at 795. But Title VI does not require that all members of the protected
class be subject to discrimination. In Lau, only 1,800 of the 2,800 ELs of Chinese ancestry
lacked language services, and the Court did not premise its holding on their being “foreign
born.” Lau, 414 U.S. at 564. Mumid erroneously limits “national origin” to “foreign born,”
when it is clear that discrimination against individuals based on their ancestry, language, or LEP
status also constitutes national origin discrimination under Title VI. See Lau, 414 U.S. at 564,
568. 25
Mumid also limits its analysis to whether the language-related policy at issue was facially
discriminatory and whether plaintiffs could establish intentional discrimination under the
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or through evidence of
discriminatory animus. Mumid, 618 F.3d at 794-95 (affirming Mumid v. Abraham Lincoln High
School, No. 0:05-cv-2176, 2008 WL 2811214, at *5-8 (D. Minn. Jul. 16, 2008)). None of these
24

See supra Section I.A; see also Jan. 2015 DCL, at 25 n.64. In the January 2015 DCL, ED and DOJ reminded all
school districts that “a policy of delaying disability evaluations of EL students for special education and related
services for a specified period of time based on their EL status … [is] impermissible under the IDEA and Federal
civil rights laws [i.e., Title VI and the EEOA].” Id. (explaining why Mumid does not affect these obligations).
25
See also Garcia v. Spun Steak, 998 F.2d 1480, 1486 (9th Cir. 1993); Gutierrez v. Mun. Court of Se. Judicial Dist.,
Los Angeles Cnty., 838 F.2d 1031, 1039 (9th Cir. 1988), judgment vacated as moot, 490 U.S. 1016 (1989)
(“Commentators generally agree . . . that language is an important aspect of national origin. . . . Because language
and accents are identifying characteristics, rules which have a negative effect on bilinguals, individuals with accents,
or non-English speakers, may be mere pretexts for intentional national origin discrimination.”); FACE v. Hawaii,
No. 13-00450, 2014 WL 75113, at *7 (D. Haw. Feb. 23, 2015) (“‘language is close[ly related to] national origin
[and] restrictions on the use of languages may mask discrimination against specific national origin groups or, more
generally, conceal nativist sentiment’”) (internal citations omitted); Reyes v. Pharma Chemie, Inc., 890 F. Supp. 2d
1147, 1158 (D. Neb. 2012) (Title VII “prohibit[s] the use of language as a covert basis for national origin
discrimination”); supra Section I.A.

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approaches is required to prove intentional discrimination under Title VI. In Almendares, a Title
VI intentional discrimination case brought by LEP plaintiffs, the court rejected “defendants’
theory that plaintiffs can only allege a claim of intentional discrimination by demonstrating that
they were ‘treated differently than similarly situated individuals.’” 284 F. Supp. 2d at 805.
Unlike the court in Mumid and K.A.B., the court in Almendares correctly recognized that LEP
“[c]laims of intentional discrimination can be based on facially neutral laws or practices.” Id.
After concluding that the LEP-based policies did not facially discriminate based on national
origin and the evidence lacked the requisite comparators required by McDonnell Douglas, the
courts in Mumid and K.A.B. prematurely dismissed the Title VI intentional discrimination claims
on summary judgment. Both courts failed to consider other well-established ways of proving
such claims, such as the deliberate indifference approach or the Arlington Heights framework.
V.

Section 1703(f) of the EEOA Requires Districts to Take Appropriate Action to
Overcome Language Barriers of LEP Parents
The District moves to dismiss Plaintiffs’ EEOA claim, arguing that they do not allege

discrimination based on national origin adequately because their LEP status is insufficient to
show that the alleged failure to overcome language barriers is “on account of national origin.”
Def.’s Mot. at 23-24 (relying on K.A.B. and Mumid). This Court should reject this incorrect
argument for the reasons given in Sections I, II, and IV, and those below.
The text and history of Section 1703(f) of the EEOA make clear that “the failure by an
educational agency to take appropriate action to overcome language barriers that impede equal
participation by its students in its instructional programs” “den[ies] equal educational
opportunity to an individual on account of his or her … national origin.” 20 U.S.C. § 1703(f).
Congress enacted the EEOA within seven months of Lau and recognized the “obvious” nexus
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between language and national origin in Section 1703(f). See Lau, 414 U.S. at 564. At the time
of the EEOA’s passage, testimony also made Congress aware of the history of national origin
discrimination in public schools based on language barriers. 26 There is no question that Section
1703(f)’s goal was to secure language assistance for LEP persons to prohibit denials of
educational opportunities based on their national origin.
To state a plausible claim for national origin discrimination under Section 1703(f), LEP
parents and students need only allege facts showing “(1) language barriers; (2) defendant’s
failure to take appropriate action to overcome these barriers; and (3) a resulting impediment to
students’ equal participation in instructional programs.” CG v. Pa. Dep’t of Educ., 888 F. Supp.
2d 534, 575 (M.D. Pa. 2012) (internal citation omitted). Taken as true for purposes of the
motion to dismiss, see supra note 9, Plaintiffs here allege sufficient facts establishing: 1) LEP
parents’ language barriers; 2) the District’s insufficient translation and interpretation services;
and 3) the resulting impediment to the students because their LEP parents cannot access the IEP
process and regular education documents needed for equal participation. Compl. ¶¶ 54-59.
Consistent with decades of EEOA cases, 27 CG did not require the LEP plaintiffs to also prove
that the district’s failure intentionally denied educational opportunity “on account of … national
origin.” Id., 888 F. Supp. 2d at 574-76. Nor should this Court.

26

See Martin Gerry, Acting Director of the Office for Civil Rights for HEW, Testimony in Bilingual Education Act:
Hearings on H.R. 1085, H.R. 2490, and H.R. 11464 Before the Gen. Subcomm. on Educ. of the Comm. on Educ. and
Labor, 93rd Cong. 20 (1974).
27
See Castaneda v. Pickard, 648 F.2d 989, 1008 (5th Cir. 1981) (evidence of intent is not required). The Supreme
Court did not require evidence of intentional discrimination under Section 1703(f). See Horne v. Flores, 557 U.S.
433, 438-39, 454-59 (2009); see also, e.g., United States v. Texas, 601 F.3d 354, 365-66 (5th Cir. 2010) (same);
Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1040-44 (7th Cir. 1987) (same). The District also cites
Deerfield Hutterian Ass’n v. Ipswich Bd. of Educ., 468 F. Supp. 1219, 1231 (D.S.D. 1979), which preceded these
seminal cases, all of which recognized that LEP persons can sue under Section 1703(f). In Deerfield, the court
denied the LEP plaintiffs’ EEOA claim not because their LEP status was insufficient under Section 1703(f), but
rather because the district “ha[d] cooperated fully in attempting to overcome language barriers” and “the plaintiffs
…ha[d] resisted and ... failed to submit to the necessary testing” of their English proficiency. Id.

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Relying on Mumid and K.A.B., the District mistakenly injects an intent requirement into
Section 1703(f). Def.’s Mot. at 23-24. However, Mumid did not add an intent requirement, and
K.A.B., in so finding, was incorrect. See K.A.B., 2013 WL 3742413, at *12 (citing Mumid, 618
F.3d at 795). In fact, Mumid assumed that the language-based policy at issue would violate the
EEOA, but did not reach the merits of that claim for other reasons. See Mumid, 618 F.3d at 79596 (finding plaintiffs lacked standing because they had graduated or were too old to attend a
public high school). The court in K.A.B. also mistakenly relied on a 1978 case from Michigan
for the proposition that LEP plaintiffs must prove a district’s failure to take action is “on account
of … national origin.” K.A.B., 2013 WL 3742413, at *11 (citing Martin Luther King Jr. Elem.
Sch. Children v. Mich. Bd. of Educ., 451 F. Supp. 1324, 1332 (E.D. Mich. 1978) (MLK Jr.)). In
MLK Jr., the plaintiffs alleged that Section 1703(f) required language assistance for black
students who spoke “Black English.” Id. at 1330. The court discussed the “on account of …
race” language in Section 1703 to support the conclusion that their “Black English” was a
“language barrier.” Id. The court denied the district’s motion to dismiss the EEOA claim
without requiring any allegations of intentional discrimination. Id. at 1326-27, 1330-33.
The EEOA requirement that a district take “appropriate action to overcome language
barriers that impede equal participation of its students in instructional programs” covers the
language barriers of students and parents because both impact student participation. 20 U.S.C. §
1703(f). Congress could have but did not limit Section 1703(f) to the language barriers of
students only. As noted above, Section 1703(f) effectively codified Lau, which relied on the
1970 Memorandum. It is reasonable to assume Congress was aware of the Memorandum and
deferred to HEW’s determination that Title VI requires districts to communicate meaningfully
with LEP parents. See supra note 26. Moreover, DOJ, which enforces the EEOA, has made
24

Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 27 of 28

clear to districts that “appropriate action” includes translations and interpretations for LEP
parents. 28 Because parents play a vital role in ensuring educational opportunities for their
children, a district’s duty to take “appropriate action” includes providing LEP parents access to
information that enables their children’s equal participation in instructional programs. 29 This
information clearly includes the documents at issue here. Based on Plaintiffs’ allegations, the
District’s failure to provide LEP parents meaningful access to IEP process and regular education
documents compromises the special education and language services their children need to
participate in school.
CONCLUSION
The District’s motion to dismiss Plaintiffs’ Title VI and EEOA claims should be denied.
Respectfully submitted,
JAMES COLE, JR.
General Counsel

VANITA GUPTA

MICHELLE TUCKER
RHONDA WEISS
Attorneys

s/ Navin K. Pant
EVE HILL (CA 202178)
ANURIMA BHARGAVA (NY 4181863)
EMILY MCCARTHY (DC 463447)
JENNIFER MARANZANO (DC 483420)
NAVIN K. PANT (NY 4407623)
CHRISTINE STONEMAN (DC 462557)
ANNA M. MEDINA (DC 483183)
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Telephone: (202) 305-4242
navin.pant@usdoj.gov

U.S. Department of Education
Office of the General Counsel

Dated: January 25, 2016

Principal Deputy Assistant Attorney General

28

See, e.g., Jan. 2015 DCL, at 37-39.
The purpose of the EEOA would be severely thwarted if Section 1703(f) did not require appropriate action to
overcome LEP parents’ language barriers. See 20 U.S.C. § 1701(a)(1). Courts generally avoid interpretations of
civil rights laws that undermine their protections. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 180
(2005) (finding Title IX’s protections would unravel if the statute did not prohibit retaliation).

29

25

Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 28 of 28

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Statement of Interest of the
United States of America has been filed electronically using the Court’s Electronic Case Filing
(“ECF”) System, which sent a notice of filing activity to all attorneys of record. This document
is available for viewing and downloading from the Court’s ECF System.

s/ Navin K. Pant
Navin K. Pant (NY 4407623)
Dated: January 25, 2016

26


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

May 9, 2016

Martha Goodman
Coordinator
Maryland Special Needs Advocacy Project
The Louise D. and Morton J. Macks Center
for Jewish Education
5708 Park Heights Avenue
Baltimore, Maryland 21215-3930
Dear Ms. Goodman:
This letter responds to your August 3, 2015 correspondence to Dr. Melody Musgrove, former
Director, Office of Special Education Programs (OSEP), within the Office of Special Education
and Rehabilitative Services, at the U.S. Department of Education. In your letter you ask if there
is a “Federal barrier” to the development of an individualized education program (IEP) for an
eligible child whose parent is contemplating whether to choose special education and related
services under Part B of the Individuals with Disabilities Education Act (IDEA or Act) or
continue to receive IDEA Part C services when a State has opted to make Part C early
intervention services available to children aged three and older consistent with 34 CFR
§303.211. We regret the delay in responding.
The IDEA Part C regulation at 34 CFR §303.211 allows each State to develop and implement a
policy under which parents of children who are receiving early intervention services and who are
eligible to receive services under section 619 of Part B of the Act can choose for these children
to continue receiving early intervention services under Part C of the Act. If a State chooses to
adopt such a policy, it must specify how long early intervention services will be available to
these children, which could be until the beginning of the school year following the child’s third,
fourth, or fifth birthdays, but no later than the age at which the child enters, or is eligible under
State law to enter, kindergarten or elementary school in the State. 34 CFR §§303.211(a)(2) and
(a)(3).
If a State offers Part C services beyond the age of three it must provide certain information to
assist parents in understanding the differences between those services and services provided
under Part B. This notice must initially be provided at the transition conference held at least 90
days before the child’s third birthday, and include an explanation of: (1) the rights of the parents
to elect to receive services under Part C or under Part B; and (2) the differences between the
types of services and the locations at which the services are provided under Part C and Part B,
the procedural safeguards that apply, and possible costs (including costs or fees charged to
families), if any, to parents of children eligible under Part C. 34 CFR §§303.209(f)(2),
303.211(b)(1). After providing the parents with that notice, the lead agency must obtain informed
consent from the parent of any child with a disability for the continuation of early intervention
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www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competiveness
by fostering educational excellence and ensuring equal access.

services for that child. 34 CFR §§303.7 and 303.211(b)(5). Consent must be obtained before the
child reaches three years of age, where practicable. 34 CFR §303.211(b)(5). OSEP has noted that
the “annual notice will help to ensure that parents of a child eligible for services under 303.211
understand that they have the right to choose between early intervention services under part C of
the Act and preschool services under part B of the Act and that they are fully informed of the
differences between these two options.” See Early Intervention Program for Infants and Toddlers
with Disabilities, Final Regulations, Analysis of Comments and Changes, 76 FR 60140, 60179
(September 28, 2011).
Children whose parents elect to continue to receive Part C services beyond age three must have
an individualized family service plan developed that includes an educational component that
promotes school readiness and incorporates pre-literacy, language, and numeracy skills
consistent with the requirements in 34 CFR §303.344(d)(4). 34 CFR 303.211(b)(2). For those
children, the parents must be provided the notice described above each year, and retain the right,
at any time, to opt-out of early intervention services and, instead, to obtain a free appropriate
public education under Part B of the Act for their child. 34 CFR 303.211(b)(1), 303.211(b)(3).
There is nothing in the IDEA or its implementing regulations that addresses whether an IEP must
be developed before a parent chooses Part C early intervention services or chooses Part B
services for their child beyond the age of three. Therefore, a public agency is neither required to
develop, nor prohibited from developing, an IEP in this situation. If the public agency chooses to
develop an IEP for the parent’s consideration, it must ensure that it complies with the IDEA
requirements in 34 CFR §§300.320-300.324, including the requirements related to IEP content,
IEP team participants, and parent participation.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the Department
of the IDEA in the context of the specific facts presented.
If you have any further questions, please do not hesitate to contact Lisa Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

April 26, 2016

Dear Colleague:
I write today regard.ng the responsibilities of States, school districts, and other public agencies in
addressing the special educational needs of children with disabilities who reside in nursing
homes. Although their numbers are small,1 their medically complex conditions present unique
challenges. In addition, because these children live away from their families, and may enter
nursing homes from a hospital or through a child welfare or health agency, they may not always
be known to responsible educational authorities or be receiving appropriate educational services.
States are required under Part B of the Individuals with Disabilities Education Act (IDEA or Part
B) to make available to all children with disabilities a free appropriate public education2 (FAPE),
which emphasizes special education and related services that, among other things, are designed
to meet the unique needs of each child, including those children residing in nursing homes. In
2014, the U.S. Government Accountability Office (GAO) highlighted some of the unique
educational challenges that may arise in serving this unique population in its report, Special
Education: Additional Federal Actions Could Help Address Unique Challenges of Educating
Children in Nursing Homes (GAO 14-585).3 Based on the observations and findings made by
GAO in this report, the Office of Special Education and Rehabilitative Services (OSERS)
recognizes that there is a need for further guidance to ensure that children with disabilities who
reside in nursing homes are evaluated in a timely manner and receive appropriate special
education and related services. Accordingly, OSERS is issuing this letter to clarify that children
with disabilities residing in nursing homes and their parents have the same rights under IDEA
that apply to all other IDEA-eligible children, and to highlight some of the IDEA requirements
that are especially relevant to the needs of this unique population. This letter will also identify
best practices to assist States and their public agencies in meeting the unique educational needs
of these children.

1

According to the Department of Health and Human Services (HHS), children represented less than a half a percent
(0.2 percent) of the more than 1.4 million nursing home residents in the United States as of December 31, 2011.
See: HHS’s Centers for Medicare & Medicaid Services’ Nursing Home Data Compendium, 2013 available at:
https://www.cms.gov/Medicare/Provider-Enrollment-andCertification/CertificationandComplianc/Downloads/nursinghomedatacompendium_508.pdf.
2
Under Part B of IDEA, a child’s entitlement to FAPE begins at the child’s third birthday and could last to the 22nd
birthday, depending on State law or practice. 34 CFR §300.102.
3
This report is available at: http://www.gao.gov/products/GAO-14-585. Among other things, GAO found that the
child find requirement under IDEA and the responsibility for providing special education services was divided
generally evenly among the States between the school district where the child’s family resides and the school district
where the nursing home is located. Additionally, GAO found that a child’s medical fragility affected the amount of
instructional time they received.
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www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competiveness
by fostering educational excellence and ensuring equal access.

Child Find and Evaluations
Under IDEA and its implementing regulations, each State and its local educational agencies
(LEAs) must have in effect policies and procedures to ensure that all children with disabilities
residing in the State who need special education and related services, regardless of the severity of
their disability, are identified, located, and evaluated. 34 CFR §§300.111 and 300.201. This
requirement, known as child find, applies to all children suspected of having disabilities under
IDEA, including those who have complex medical needs and who reside in nursing homes
because of serious health problems. The IDEA child find requirements permit referrals from any
source, including nursing home staff, who suspects a child may be eligible for special education
and related services. In general, if a public agency suspects that a child in a nursing home has a
disability and needs special education and related services, an initial evaluation that meets the
requirements in 34 CFR §§300.304-300.311 must be conducted within 60 days of receiving
parental4 consent for the evaluation or, if the State establishes a timeframe within which the
evaluation must be conducted, within that timeframe. 34 CFR §300.301(c)(1).5 Among other
requirements, the evaluation must use a variety of assessment tools and strategies to gather
relevant functional, developmental, and academic information about the child, including
information provided by the parent. This information may assist in determining whether the child
is a child with a disability, as defined in 34 CFR §300.8, and the content of the child’s
individualized education program (IEP). 34 CFR §300.304(b)(1); see also 34 CFR
§300.304(c)(4) (assessing the child in all areas related to the suspected disability, as appropriate).
Additionally, in interpreting evaluation data for the purpose of determining if a child is a child
with a disability and the child’s educational needs, the public agency must draw upon
information from a variety of sources, including parent input, as well as information about the
child’s physical condition. 34 CFR §300.306(c)(1). Therefore, a parent may choose to share with
the public agency an evaluation conducted by nursing home staff or other medical professionals
about the child’s health and physical condition.
State Responsible for Child Find
Under Part B of IDEA, the State where the child’s parents reside is responsible for conducting
child find, including individual evaluations, and ensuring that FAPE is provided to an eligible

4

As defined in 34 CFR §300.30, parent means a biological or adoptive parent of a child; a foster parent, unless State
law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a
parent; a guardian generally authorized to act as the child's parent, or authorized to make educational decisions for
the child (but not the State if the child is a ward of the State); an individual acting in the place of a biological or
adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual
who is legally responsible for the child's welfare; or a surrogate parent who has been appointed in accordance with
34 CFR §300.519 or section 639(a)(5) of IDEA.
5
The evaluation timeframe does not apply if a child is moved to a nursing home in a new school district after the
relevant timeframe has begun and prior to a determination by the child’s previous public agency or school district
whether the child is a child with a disability under Part B. 34 CFR §300.301(d). In this situation, the new public
agency or school district may extend the 60-day or State-established timeframe only if: (1) it is making sufficient
progress to ensure prompt completion of the evaluation; and (2) the parent and the new public agency agree to a
specific time when the evaluation will be completed. 34 CFR §300.301(e).

child. Generally, States assign this responsibility to the school district where the child’s parents
reside.6 If the nursing home is located in the State where the child’s parents reside, but is within
another school district within the same State, the State would need to determine whether it would
be appropriate for the school district of the parents’ residence to conduct child find; or the State
could assign that responsibility to the school district where the nursing home is located, if the
school district where the child’s parents reside has not yet conducted or completed the
evaluation. There also could be situations where the nursing home in which the child resides is
located in a State that is different from the State of the parent’s residence. In these circumstances,
the Department’s long-standing position is that it is residence that creates the duty under the
statute and regulations to make FAPE available, not the location of the child or school.
Accordingly, if a child is placed or referred outside the State by an educational or noneducational State or local agency, such as a child welfare, social service, or other similar State
agency, whether for educational or treatment reasons, the State initiating the placement or
referral (i.e., the “placing State”) is responsible for ensuring that the child receives FAPE.7 This
responsibility would include conducting child find. Therefore, the State where the nursing home
is located would need to coordinate with the placing State once the child is identified to
determine how the evaluation will be conducted. The placing State could either contract with the
school district where the nursing home is located to conduct the evaluation, or ensure that the
evaluation is conducted through some other arrangement.
When considering best practices related to child find, it is important to note that nothing in IDEA
requires that an evaluation of a child suspected of having a disability take place in a school
setting. If the child’s suspected disability involves a medical condition which would make it
difficult for the child to take certain tests or complete parts of the evaluation in a school setting,
the evaluator may work with the child’s parents and doctors to determine what would be an
appropriate setting to conduct the evaluation. In general, the public agency may not refuse to
conduct the evaluation because the child is unable to come to a school setting for the evaluation.8
Provision of Special Education and Related Services
After a determination is made that a child has a disability and needs special education and related
services, an IEP must be developed for the child within 30 days of the eligibility determination.
34 CFR §300.323(c)(1).9 As stated above, under Part B of IDEA, the school district in the
placing State where the parent resides is responsible for ensuring that FAPE is provided to the
child if the nursing home is located in a school district in a different State; however, the placing
State could arrange for the school district where the nursing home is located to be responsible for
the provision of special education and related services to the child. Even if this were to occur, we
emphasize that the placing State retains ultimate responsibility for ensuring the provision of

6

Office of Special Education Programs (OSEP) Letter to Biondi, Oct. 7, 1997.
See OSEP letter to McAllister, June 9, 1994. OSEP explained in response to a subsequent inquiry that this letter
does not apply if the child’s parents move to another State. See OSEP letter to Moody, Oct. 24, 1995; see also 34
CFR §300.323(f).
8
IDEA also includes requirements for periodic reevaluations in accordance with 34 CFR §§300.304-300.311. See
34 CFR §300.303.
9
IEP requirements are at 34 CFR §§300.320-300.324.
7

FAPE to its resident children with disabilities whom the State places or refers to nursing homes
located in another State. 34 CFR §300.149.
Under IDEA, in order to make FAPE available to each eligible child with a disability, the
responsible public agency must ensure that an appropriate IEP is developed and implemented for
the child. The child’s IEP must be designed to enable the child to be involved in and make
progress in the general education curriculum. 34 CFR §300.320(a)(1), (2) and (4). As is true for
other children with disabilities, the IEP is developed at a meeting of the IEP Team which
includes the child’s parents and relevant school officials, and whenever appropriate, the child.
34 CFR §300.321(a). Also, the IEP Team could include, at the discretion of the parent or the
public agency, other individuals who have knowledge or special expertise regarding the child,
including related services personnel as appropriate. 34 CFR §300.321(a)(6). Thus, there are
situations where nursing home personnel involved in the care of the child could be members of
the child’s IEP Team, provided the party (public agency or parents) who invited the individual to
be a member of the IEP Team can demonstrate that the individual possesses the requisite
knowledge or special expertise regarding the child. 34 CFR §300.321(c)
Once a proper IEP Team is constituted, we emphasize the importance of ensuring that
individualized determinations are made as to the types and amounts of special education and
related services to be provided to each child with a disability. In that regard, a State may not have
a rule or policy that would restrict or limit the amount of services to be provided to children with
disabilities who, because of serious health problems, must receive required special education
services in a nursing home. Rather, under IDEA, the amount and types of special education and
related services provided to a child must be based on the child’s individual needs as set forth in
the child’s IEP. IDEA’s definition of related services includes an array of support services that
are provided if they are required to assist a child with a disability to benefit from special
education. Among these are school health services and school nurse services. 34 CFR
§300.34(c)(13). For example, these services could include the provision of a nurse to assist a
ventilator dependent child in a school setting.10
The following best practices could assist in the implementation of these important IDEA
requirements. If a child is unavailable for medical reasons during a portion of the school day, the
IEP Team should discuss the time or times when services should be provided to the child. Or, for
example, if a child is only able to participate in instruction for short periods of time, the IEP
Team should discuss the best methods to provide the required special education and related
services to the child.
Provision of Special Education and Related Services in the Least Restrictive Environment
(LRE)
The requirements for determining the educational placement of a child with a disability, which
are included in the Part B regulations at 34 CFR §§300.114 through 300.118, are fully applicable
to the education of children with disabilities residing in nursing homes. These regulations
provide that to the maximum extent appropriate, children with disabilities are to be educated
10

See Cedar Rapids Community School District v. Garret F, 526 U.S. 66 (1999).

with children who are not disabled and that special classes, separate schooling, or other removal
of children with disabilities from the regular educational environment occurs only if the nature or
severity of the disability is such that education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily. The child’s placement must be determined at
least annually and be made by a group of persons that includes the parents and other persons
knowledgeable about the child, the meaning of the evaluation data, and the placement options.
Placement decisions must be made by this group of knowledgeable persons on an individual
basis in light of the child’s unique needs, and, unless the IEP requires a different arrangement,
the child must be educated in the school he or she would attend if not disabled. We understand
that children residing in nursing homes may not be able to attend the school they would attend if
not placed in the nursing home. However, in these situations, the public agency still must ensure
that children with disabilities residing in nursing homes are educated in the least restrictive
environment appropriate to the child’s needs, based on his or her IEP.11
As a best practice, we note that because school-age children living in nursing homes are often
medically fragile,12 it may be appropriate for the child’s physician or other knowledgeable
nursing home staff familiar with the child to be included as a member of the placement team.
This team member can assist in making the determination as to whether the child is too fragile to
attend a local school, and could also provide input regarding other factors that may impact
placement decisions, such as the child’s tolerance for being on a bus and sitting for extended
periods of time.
In instances where the placement team determines the child’s LRE is instruction in the nursing
home, the public agency must ensure that the child receives all of the special education and
related services included in his or her IEP in the nursing home. If a child is able to move
throughout the nursing home, it may be possible for instruction to take place in a classroom in
the nursing home. However, when a child is too fragile to be moved or if the child is prone to
infections and must be isolated, the public agency may choose to provide one-on-one services in
the child’s room.
The IEP Team must review each child’s IEP periodically, but not less than annually to determine
whether the annual goals are being achieved, and revise the child’s IEP, as appropriate, to
address, among other matters, any lack of expected progress toward the child’s annual goals, and
in the general education curriculum, if appropriate. 34 CFR §300.324(b)(1)(i)-(ii). Similarly, the
child’s placement must be determined at least annually and must be based on the child’s IEP. 34
CFR §300.116(b)(1)-(2). If a child’s condition changes after the annual IEP Team meeting, it
would be appropriate for the IEP Team to consider whether revisions to the child’s IEP are
necessary. Because the child’s placement is based on the child’s IEP, if the IEP is changed, the
placement team may need to determine whether the child’s LRE has changed, and if so, may

11

See OSEP Letter to Anderson (November 30, 2012) OSEP Letter to Hungate (January 5, 2011), and OSEP
Memorandum 05-08 (addressing placement requirements for children with disabilities in various residential
facilities).
12
Nearly 71 percent of children residing in nursing homes have at least two active disease diagnoses, according to
analysis of CMS data. See United States Government Accountability Office’s Special Education – Additional
Federal Actions Could Help Address Unique Challenges of Educating Children in Nursing Homes, July 2014
available at: http://www.gao.gov/products/GAO-14-585.

need to make conforming changes to the child’s placement. 34 CFR §300.116(a)(2). For
example, if a child’s condition stabilizes or improves and the child’s doctor believes the child
can tolerate additional instruction or be transported to a local school for instruction, the child’s
IEP Team may need to revise the child’s IEP to determine if additional services are warranted
and the placement team may need to consider whether the nursing home continues to be the least
restrictive setting where the child should receive FAPE.
Dispute Resolution Options
It is important to note that parents of children residing in nursing homes are afforded the same
procedural safeguards and due process rights as all other parents of children with disabilities. 34
CFR §§300.500 through 300.536. Therefore, if a parent of a child residing in a nursing home
disagrees with the public agency responsible for providing FAPE on any matter regarding the
identification, evaluation, or educational placement of the child, or the provision of FAPE to the
child, the parent may request mediation under 34 CFR §300.506, file a due process complaint
under 34 CFR §300.507 to request a due process hearing, or file a State complaint under 34 CFR
§300.153.
Qualifications of Personnel Providing Special Education and Related Services to Children
Residing in Nursing Homes
Ensuring that personnel serving children with disabilities residing in nursing homes have the
requisite qualifications is paramount. To this end, IDEA and its implementing regulations require
a State to establish and maintain qualifications to ensure that personnel necessary to carry out the
purposes of Part B of IDEA are appropriately and adequately prepared and trained, including that
those personnel have the content knowledge and skills to serve children with disabilities. 34 CFR
§300.156(a) and 300.201; see also 34 CFR §300.207. Therefore, States must ensure that they
establish and maintain qualifications to ensure that personnel serving children with disabilities
residing in nursing homes are appropriately and adequately prepared and trained, and possess the
content knowledge and skills necessary to serve this unique population of children with
disabilities.
Possible Funding Sources
We recognize that serving children with disabilities residing in nursing homes may present
unique challenges and may require some school districts to be responsible for a particularly large
share of high-cost services because of the large concentrations of children with high needs in
those districts. There are several ways that States can assist these school districts. Each fiscal
year States may reserve a portion of their IDEA Part B funds for authorized State-level activities,
other than administration. 34 CFR §300.704(b)(4). These State-level funds may be used for
activities such as support and direct services, including technical assistance, personnel
preparation and professional development and training, and to assist LEAs in meeting personnel
shortages. 34 CFR §300.704(b)(4)(i) and (vii).

To assist school districts in serving high need children with disabilities, each State has the option
of establishing an LEA high cost fund and to reserve for each fiscal year 10 percent of the
amount the State reserves for other State-level activities to finance and make disbursements from
that fund to its LEAs. The definition of a high need child with a disability is included in the State
plan for the high cost fund and must at a minimum address the financial impact a high need child
with a disability has on the budget of the child’s LEA and ensures that the cost of the high need
child with a disability is greater than three times the average per pupil expenditure in that State.
The costs associated with educating a high need child with a disability are only those costs
associated with providing direct special education and related services to the child that are
identified in the child’s IEP. Therefore, in order for a public agency to be eligible for a
disbursement from the State’s high cost fund, (if the State has a high cost fund), the child must
meet the State definition of high need child with a disability, and the LEA must meet the
requirements included in the State’s high cost plan.
Additional Resources
The Office of Special Education Programs (OSEP) funds a large network of technical assistance
centers that develop materials and resources to support States, school districts, schools, and
teachers to improve the provision of services to children with disabilities. The U.S. Department
of Education does not mandate the use of, or endorse the content of, these products, services,
materials, and/or resources; however, States and LEAs may wish to seek assistance from some of
the OSEP-funded technical assistance centers available at: http://ccrs.osepideasthatwork.org and
http://www.tadnet.org/pages/526-find-a-center.
We encourage States and LEAs to review their policies and procedures to ensure that children
with disabilities residing in nursing homes are timely identified and evaluated, and provided with
the special education and related services necessary for them to receive FAPE. We ask you to
share this information with your local school districts and other public agencies to help ensure all
children with disabilities, including children residing in nursing homes, receive a high-quality
education. I hope this guidance is helpful to both public agencies and parents. If you have
additional questions, please contact Jessica Spataro at Jessica.Spataro@ed.gov. Thank you for
your continued interest in improving results for children with disabilities.
Sincerely,
/s/
Michael K. Yudin
Assistant Secretary

/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs