CENTER FOR EQUAL OPPORTUNITY
FEDERAL CONTROL
OUT OF CONTROL:
by Jim Littlejohn *
November 1998
INTRODUCTION
In the U.S. Department of Education, the Office for Civil Rights (OCR) is responsible for ensuring that school systems do not engage in discriminatory actions that violate Title VI of the Civil Rights Act of 1964.1 The findings of this report raise questions that go to the heart of OCR's role and function as an enforcement agency. Setting aside its obligations to the public it is sworn to serve, OCR pursues its own agenda and oversteps its Congressional mandate. Instead of providing leadership for educational institutions through clear enunciation of national policy and forthright findings of fact, OCR officials practice double-speak to justify unwarranted interference in local educational decision-making. This secret sub-regulating, pursuant to un-promulgated policies should be of concern to all.
This report examines OCR's current policies and practices for determining whether school systems are providing appropriate educational services to national-origin minority students who are English language learners. The information in this report is taken from OCR documents in the public domain, including approximately 160 compliance letters OCR sent to school systems in 1996 and 1997. Each of these letters gave OCR's determinations pursuant to on-site investigations of the schools' programs for English language learners and carried an attached "corrective action" agreement from the school systems.
Historically, OCR has been cut a lot of slack by Congress and the Executive Branch because it does civil rights work. Any attack on OCR as being excessive in its enforcement zeal is deflected back to the attacker with the label of being anti-civil rights or racist. In the absence of critical scrutiny, the agency has imposed upon schools an ever-expanding burden of requirements with dubious justification. Under the mantle of defending the civil rights of English language learners, OCR staff are in and out of classrooms, looking over teachers' shoulders, second-guessing teachers and administrators, judging the quality of instructional programs and materials, and generally being educationally intrusive in ways never contemplated by the drafters of the civil rights statutes. There is ample evidence in the letters reviewed in this report to demand substantial changes in how OCR does business.
LEGAL AND POLICY BACKGROUND
Title VI and the May 25th Memorandum
Congress established OCR in the mid-1960s as part of the federal effort to desegregate southern school systems pursuant to Title VI of the Civil Rights Act of 1964. In the early1970s, OCR, then part of the former Department of Health, Education, and Welfare (HEW), expanded its enforcement activities under Title VI to include ensuring equal educational opportunities for national origin minority students who are limited-English speaking (LES).
There is no specific reference in the Title VI statute or regulations pertaining to requirements for teaching English language learners. However, on May 25, 1970, HEW published in the Federal Register a Title VI policy memorandum, Identification of Discrimination and Denial of Services on the Basis of National Origin, that expanded upon Title VI regulations by stating general requirements for school systems enrolling national-origin minority LES students. According to the May 1970 memorandum:
Where inability to speak and understand the English language excludes such [national origin] students from effective participation in a district's educational program, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.
Between 1970 and 1974, OCR staff used the May 1970 memorandum as a general guide to measure Title VI compliance. A number of school systems were found in violation of Title VI, and were encouraged to remedy the violation by developing compliance plans that included bilingual education.
Lau v. Nichols Decision
The U.S. Supreme Court Decision in Lau v. Nichols, 414 U.S. 563 (1974) reviewed and affirmed the May 1970 memorandum as a reasonable interpretation of Title VI requirements. This provided judicial support for federal oversight of school districts' practices regarding educational opportunities for English language learners. In part, the opinion stated:
. . . there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum, for students who do not understand English are effectively foreclosed from any meaningful education. (Lau at p. 566)
Neither the May 1970 memorandum nor the Lau decision set forth specific requirements for districts to follow in providing these students equal educational opportunity. The issue presented to the Court emphasized correcting deficiencies in the English language, not establishing separate curricula and staff in languages other than English.2 In fact, the Court explicitly avoided favoring one approach over another by stating:
No specific remedy is urged upon us. Teaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instruction to this group in Chinese is another. There may be others. (Lau at p. 565)
The Lau Remedies
OCR seized upon the favorable Supreme Court decision and embarked upon renewed enforcement efforts. In late 1974, the agency brought together a panel of educational experts who strongly favored bilingual education to develop OCR's guidelines for obtaining acceptable compliance plans from school systems. In the summer of 1975, OCR distributed to its regional offices the Task Force Findings Specifying Remedies Available for Eliminating Past Educational Practices Ruled Unlawful under Lau v. Nichols. Copies were also sent to state education agencies, but without any opportunity for the states, the school districts regulated by OCR, or the public at large to comment or suggest modifications. Thus, by agency fiat, the "Lau Remedies" required bilingual education at the elementary and middle school levels for national-origin minority students who were dominant speakers of a language other than English.
The educational and legal theory supporting bilingual education was that students who were dominant in a language other than English should be taught in that language, thereby ensuring them equal access to academic subjects while they were learning English.3 A corollary argument was that students who primarily speak a non-English language should learn to read initially in that language, on the assumption that reading is a skill that can be easily transferred to a second language. Researchers have raised serious questions about these theories; for example, the 1997 National Research Council study Improving Schooling for Language-Minority Children, A Research Agenda found no evidence to support the position that learning to read in the primary language facilitates learning to read in English. Also, the lack of staff and curriculum materials in languages other than English represent overwhelming obstacles to implementing bilingual programs.
Following its issuance of the Lau Remedies, OCR used its national data base to identify approximately 500 school systems that had large numbers of English language learners who were not being provided either bilingual education or English as a Second Language (ESL) programs. From 1975 to 1980, disregarding practical considerations and the lack of supporting research data, OCR negotiated bilingual education plans with virtually all of these targeted school systems. Several other school systems that applied for Emergency School Aid Act funds also came under OCR's scrutiny, and were required to adopt bilingual education programs as a condition for receiving new federal funds. OCR never defined the standards for establishing a Title VI violation, and the Lau Remedies soon became the de facto compliance standards.
Opposition to the Lau Remedies
Many school officials strongly objected to the bilingual education requirement, but few were willing to challenge OCR's interpretations. It is easier to accept a federally-sanctioned program than to defend another, and most state education agencies offered little support or guidance. Two notable exceptions were the Fairfax County, Virginia, Public Schools, and the State of Alaska. In the 1970s, the Fairfax County Public Schools, located in Northern Virginia, enrolled thousands of English language learners representing more than 50 different language groups (today the number is over 100). To teach English effectively to such a large variety of language-minority students, the district adopted an ESL approach, using bilingual teachers and community members to assist as interpreters for parents. By all objective standards, the district's program was well-run and effective; OCR did not agree. Throughout the Carter administration, OCR descended upon the district numerous times with investigators, lawyers, and assorted Washington bureaucrats in a concerted effort to move the district from its ESL program to the bilingual education model. The agency never succeeded. Finally, a few weeks after Ronald Reagan was elected President in 1980, OCR's holdover political leadership grudgingly issued a letter to Fairfax finding the district's ESL program in compliance with Title VI because it was deemed to be "equally effective" as bilingual education programs.
During the four years of the Carter administration, OCR's zeal for bilingual education sometimes reached absurd results and ultimately led to serious public errors by the agency-and a disastrous beginning for the newly-formed U.S. Department of Education. After OCR visited several remote villages in Alaska, it demanded that the schools teach in the native Alaskan languages and dialects. Undeterred by the fact that such languages were not written down, OCR ordered the school systems to develop written languages to carry out the required bilingual instruction. The State of Alaska sued OCR in the case Northwest Arctic v. Califano, arguing that the Lau Remedies were not legal guidelines and that the agency was exceeding its legal authority by requiring bilingual education. In 1979, OCR's lawyers convinced the HEW leadership to settle the case with a promise that OCR would publish the Lau Remedies or similar guidelines in the Federal Register for public review and comments, and ultimately issue them as new Title VI regulations. It never did.
The Language Minority NPRM
The effort to publish the Lau Remedies soon became enmeshed in presidential election politics. In May 1980, the Carter administration disbanded HEW and created the new U.S. Departments of Health and Human Services, and of Education. By June 1980, OCR's leadership, with support from the White House, convinced Shirley Hufstedler, the first Secretary of Education, that a Title VI regulation requiring bilingual education should be issued before the election to gain Hispanic support for the Democratic ticket, especially in the populous states of Texas and California. This turned out to be a major fiasco. On August 5, 1980, Secretary Hufstedler published in the Federal Register a Notice of Proposed Rulemaking (NPRM), titled Nondiscrimination Under Programs Receiving Federal Financial Assistance Through the Department of Education, Effectuation of Title VI of the Civil Rights Act of 1964. This document, dubbed the Language Minority NPRM, required virtually every school system that enrolled English language learners to establish bilingual education programs in grades K-12.
The Language Minority NPRM had been written in secret by a small number of OCR staff who had no background in the education of English language learners, and little common sense. Some OCR staff had strong misgivings about a federal requirement for bilingual education, particularly after observing the consistent success of Vietnamese immigrants who came to this country in large numbers during the late 1970s, when only ESL or other English language instruction was available. There were also serious practical problems involved in offering bilingual education in many languages.
As reflected in the more than 5,000 public comments the agency received, opposition to the proposed bilingual requirements was overwhelming and widespread. The National Education Association was one of the few national organizations that supported the proposal. By late fall 1980, Congress considered amending the Title VI regulations to prevent OCR from conducting investigations on issues related to English language learners. The matter was resolved in February 1981, when the Reagan administration withdrew the NPRM from further consideration. In announcing the withdrawal, the newly appointed Secretary of Education, Terrell Bell, cited the proposed regulation as "overly prescriptive and burdensome."
Current Policies
OCR currently relies on three policy documents to interpret Title VI requirements regarding equal educational opportunities for English language learners. These are: (1) The May 25, 1970 memorandum; (2) a December 3, 1985 document entitled OCR's Title VI Language Minority Compliance Procedures; and (3) a September 27, 1991 Policy Update on Schools' Obligations toward National Origin Minority Students with Limited-English Proficiency (LEP Students). As discussed above, the May 25 Memorandum provided only general guidance for school systems. The remaining two documents were issued by OCR to clarify the requirements of the May 25 Memorandum and remove the restrictions imposed by the Lau Remedies.
The December 1985 Policy
The December 1985 policy was developed because then-Secretary William Bennett became aware that the more than 500 bilingual plans OCR had negotiated with school systems from 1976 to 1980 were still in effect. His staff directed OCR to inform each of the 500-plus school systems that they no longer had to follow these Lau Remedies plans. The notice to the schools included the newly-drafted guidance, which emphasized a more flexible approach to programs for LEP students.
The 1985 policy, which OCR acknowledges is still in effect, set forth three key elements. The first clarifies under what circumstances school systems are required to submit compliance agreements or corrective action plans to OCR regarding deficiencies in programs for English language learners:
Although the May 25th Memorandum and the Lau v. Nichols decision require school districts to "take affirmative steps" to open their instructional programs to language minority students, OCR does not require the submission of a written compliance agreement (plan) unless a violation of Title VI has been established. (p. 2)
The second element defines which students are covered by the May 25, 1970 Title VI guideline:
The affirmative steps required by the May 25th Memorandum have been interpreted to apply to national-origin minority students who are learning English as a second language, or whose ability to learn English has been substantially diminished through lack of exposure to the language. The May 25th Memorandum does not generally cover national-origin minority students whose only language is English, and who may be in difficulty academically, or who have language skills that are less than adequate. (p. 2)
Finally, the 1985 policy guidance emphasizes OCR's post-Lau Remedies policy of providing substantial flexibility to school systems in choosing programs for English language learners:
In providing educational services to language minority students, school districts may use any method or program that has proven successful, or may implement any sound educational program that promises to be successful. Districts are expected to carry out their programs, evaluate the results to make sure the programs are working as anticipated, and modify programs that do not meet these expectations. (p. 3)
The September 1991 Policy
OCR's most recent policy update was developed during the middle of the Bush administration to update the legal foundation for OCR policy and to clarify issues related to staff requirements, criteria for exiting students from alternative language programs and evaluating programs for English language learners. In a memorandum dated September 27, 1991, Michael L. Williams, then Assistant Secretary for Civil Rights, clarified the policy guidance as follows:
The policy update adheres to OCR's past determination that Title VI does not mandate any particular program of instruction for LEP students . . . This document should be read in conjunction with the December 3, 1985, guidance entitled, "The Office for Civil Rights' Title VI Language Minority Compliance Procedures," and the May 1970 memorandum to school districts entitled, "Identification of Discrimination and Denial of Services on the Basis of National Origin," 35 Fed. Reg. 11595 (May 1970 Memorandum). It does not supersede either document . . .
In the September 1991 policy, OCR adopted the standards applied in the 5th Circuit decision in Castañeda v. Pickard to determine whether school systems were in compliance with Title VI. Under these standards, a program for English language learners is acceptable if:
1. The district is pursuing a program informed by an educational theory recognized as sound by some experts in the field, or at least deemed a legitimate experimental strategy;
2. the programs and practices actually used by the district are reasonably calculated to implement effectively the educational theory adopted by the District; and
3. the district has taken action if the program, after a legitimate trial, fails to produce results indicating that the language barriers confronting students are actually being overcome.
The document also posited that the success of a program for LEP students would be determined by their eventual ability "to participate meaningfully in the recipient's programs." In other words, meaningful participation would be a result of the school system's program for LEP students. (1991 Policy, p. 9) In recent years, OCR has stood this principle on its head, requiring meaningful participation by LEP students upon their entry into the school system. This twisted reading was contrived to support bilingual education programs over English immersion programs, since, according to bilingual advocates, an LEP student could enjoy "meaningful participation" only if classroom instruction is in the dominant language. OCR now consistently uses "meaningful participation" instead of "English language development" as the principal requirement in determining the compliance of a school's program.
This perspective drives OCR's compliance investigations and policy interpretations on the issue of educating English language learners. ESL and other English language programs meet the requirements of the law, but inevitably fall short under OCR's distortion of the legal standard. School systems that implement English language programs for LEP students are always suspect in OCR's eyes, and must meet increasingly closer agency scrutiny and ever higher standards. School systems that attempt to implement bilingual education programs face everywhere the lack of teachers and curriculum materials, and thus also fall short under OCR's perverse measures, because they are unable to provide bilingual instruction to all LEP students and in every language.
The Policy That Never Existed
Since 1991, OCR has issued no further policy updates or clarifications to either its staff or school systems regarding its standards for determining compliance with Title VI on this issue. In 1993, President Clinton appointed Norma Cantú, an attorney for the Mexican American Legal Defense Fund (MALDEF) and bilingual education advocate from Texas, to head the Office for Civil Rights. In 1994, Ms. Cantú established an internal task force to prepare a new "Lau" policy for OCR. The task force met for several months, and eventually prepared a draft policy that strongly favored bilingual education.4 However, Assistant Secretary Cantú was unable to obtain approval for the new policy within the Department. Undersecretary Mike Smith remembered too well the debacle of the 1980 OCR Language Minority NPRM and was not about to let OCR take the Department down that road again. Faced with this lack of support, the Assistant Secretary told OCR task force members that the aborted "Lau" policy "does not exist."
OLD POLICY, NEW REQUIREMENTS
Case-by-Case Strategy
Deprived of departmental support for its favored policy, OCR's leadership has adopted a case-by-case, state-by-state strategy to interpret the 1985 and 1991 policies in ways that dictate educational procedures and support bilingual education programs wherever possible.
The San Francisco, Dallas, and Denver regional offices, which serve states with laws that support bilingual education, are prime arenas for the promotion of OCR's agenda. In 1995, OCR's Denver staff helped bilingual advocates negotiate a strong bilingual education plan with the State of Colorado. In 1996, Assistant Secretary Cantú appointed a bilingual advocate as Director of the San Francisco regional office. She also directed a Denver OCR staff attorney, who strongly favors bilingual education and a highly prescriptive enforcement approach, to essentially take over the Dallas regional office "Lau" compliance review program. As a result, "Lau" investigations in Texas over the past two to three years have become predictably inflexible in support of bilingual education programs.
Among the documents reviewed for this report, there were very few copies of the final plans submitted by the school districts, and no record of the many meetings and negotiations with OCR staff that led up to the final plans. Regional offices that strongly favor bilingual education often use negotiating or "technical assistance" sessions to convince school systems that bilingual education is the instructional method they should "choose." For example, the Denver office has developed the practice of accepting from school systems generic agreements regarding the types of educational programs the district will implement. Staff then work with school officials over the telephone and on-site to move them toward more prescriptive programs, including bilingual education programs.
OCR's Recent Expansion of Requirements
Over the past few years, OCR has quietly expanded upon the 1970, 1985, and 1991 interpretations of law and policy to the point where virtually any school system in the nation, even one with top-rated programs for LEP students, would be found deficient by OCR staff.5 The several thousand pages of OCR documents reviewed in compiling this report involve approximately 160 school districts from Massachusetts to California, all of which were found to be out of compliance with the law when judged by OCR's newly expanded (and never publicized) standards for adequate LEP programs. Every district reviewed by OCR during the period covered by this report was required to submit to OCR a "voluntary compliance plan" (statement of actions to be taken by the school district to come into compliance with OCR's requirements). Each plan contained requirements for numerous other supporting plans and reports that had to be submitted to OCR for approval. The requirements included:
The OCR letters that are the basis for this report reveal how the lack of clearly stated civil rights policy leads to and is aggravated by inadequate management controls. The difference in interpretations of policy among the regional offices is astounding. Some OCR regional offices operate as federal school boards, dictating 20-30 pages of highly prescriptive requirements on a myriad of issues that are even indirectly related to the education of English language learners. Other regional offices focus only on certain broad issues and bypass matters deemed "critical" by their more zealous colleagues.
THE RECORD OF OCR'S REQUIREMENTS
Over-Identifying LEP Students
OCR's latest policy update (September 1991) states that school districts "should have procedures in place for identifying and assessing [ the language skills] of all LEP students." OCR's internal policy documents do not specify any particular procedure for identifying students who speak a language other than English, nor do they establish standards for assessing language skills to determine which students may be limited-English proficient (LEP). The policies as initially written were deliberately silent on these matters, because the agency at that time recognized the wide range of circumstances affecting school systems across the country and wanted to allow local leadership as much flexibility as possible in carrying out the federal requirements.
In recent years, OCR has truncated this flexibility by requiring a two-stage process to identify which national origin students are eligible for alternative language programs (bilingual education or English immersion).The first step is to obtain from parents or older students answers to a home language survey, which contains questions about the language first used by the student, the language spoken in the home, and other similar information. Teachers may also be required to complete a checklist. Any mention of a language other than English on the language survey form or the teacher checklist automatically identifies the student as having a primary or home language other than English (a PHLOTE student), even if the student is, in fact, a fluent English speaker. For example, a student who has always spoken English, but who had a relative in the home for a period of time who spoke Spanish, would, under OCR's current procedures, be classified as PHLOTE.
Students identified as PHLOTE are tested in English, and possibly another language, to determine their language proficiencies in speaking, reading, writing, and comprehension. If the student scores below the designated cut-off point on the English version of the test in any of the categories, the student is designated as limited-English proficient (LEP) and must be placed into an alternative language program (e.g., bilingual education or ESL). Under OCR's procedures, which are not specified in any policy document, the student must be placed into an alternative language program even if he or she is a fluent English speaker, but with deficiencies in reading, writing, or comprehension. By enforcing this procedure, OCR requires school systems to classify national origin minority students as LEP based upon deficits that are similar, if not identical to, educational deficits occurring among many native English speakers.
Also, the LEP designation may have no relation to the student's ability in his or her native language. For example, a student who speaks little or no Spanish, is reasonably fluent in English, but has low reading or writing test scores, would be designated as LEP. OCR's requirement could lead to such students being placed into Spanish bilingual education programs, even if the students spoke no Spanish. This unwritten policy change as enforced by OCR is potentially more intrusive on this issue than were the Lau Remedies. Under the Lau Remedies, students were not eligible for bilingual programs unless they were dominant in their native language (e.g., Spanish) over English. If they were equally proficient in both languages, or dominant in English, they were placed into regular English language instructional classes or provided remedial assistance in English.
Excerpt 1: OCR's September 1995 letter to the Albuquerque Public Schools illustrates an application of this policy with some interesting ramifications. In a 1995 compliance review, the Denver OCR office found that some schools in the District were placing Native American and Asian LEP students into Spanish-language bilingual classes.
To the extent that Native American LEP students, Asian LEP students, and other LEP students for whom Spanish and English are second languages receive alternative language services primarily through a Spanish-based bilingual program, these students are not served under a program model that is recognized as sound or considered a legitimate experimental strategy. Academic instruction in Spanish, using an approach that assumes that Spanish or English is the primary language, is functionally equivalent to submersion for students whose primary or home language is not Spanish or English. The primary objectives of bilingual education - transfer of academic and literacy skills from the primary language to a secondary language - is not a reasonable educational objective when the language of instruction is not the primary language.
(Letter dated September 8, 1995 to Albuquerque Public Schools, p. 9.) (emphasis added)
In this instance, OCR arrived at a correct conclusion. However, there was no evidence in the letters reviewed that OCR applies this standard consistently to school systems that place Hispanic students into Spanish bilingual classes. For example, OCR never raised a concern with Albuquerque or other school districts about whether there may be Hispanic students in the Spanish language classes who have such a limited knowledge of Spanish that the "transfer of academic and literacy skills from the primary language [Spanish] to the secondary language [English]" would be essentially non-existent. (As noted earlier, the research has not supported assumption, which is readily embraced by OCR.) OCR's position on this matter is not well-defined, but the agency appears to condone placing LEP Hispanic students into Spanish bilingual classes even if the students speak English better than Spanish. This example also reveals the flaw in lumping together a student's "primary" language with the broader category of "home language." A student may well have a home language other than English, according to OCR's definition, but be primarily an English speaker.
In the letters reviewed, OCR's regional offices almost always cited school districts for failure to identify adequately LEP students and assess their language skills even when districts had elaborate procedures in place or were following state-approved guidelines. In negotiations with school districts, OCR considers its requirements on these issues to be non-negotiable, although they do not appear in OCR's policy documents.
Excerpt 2: OCR policy does not specify particular methods that schools must use to identify potential LEP students. However, in the example below the Dallas OCR office admonishes the Corpus Christi, Texas, school district for not asking what the agency considers to be necessary questions on the home language survey.
Although the District's identification procedures appear adequate to disseminate the HLS [Home Language Survey] to locate PHLOTE students, the questions included in the HLS do not appear to be sufficiently broad to ensure that all PHLOTE students are promptly and adequately identified. The . . . HLS asks for the following:
1) the parent to identify the language most frequently spoken in the home, and
However, the survey fails to address two key areas:
a) The student's first language learned, and
2) the language most frequently used by the student.
b) whether the student's development of English language skills was influenced by a language other than English. . .
(Letter dated April 25, 1997 to Corpus Christi Independent School District, p. 4)
Excerpt 3: Often OCR staff in one region add new requirements not considered important by another regional office. Thus, only in Dallas is it important to know whether the student's development of English language skills was influenced by a language other than English, while, as indicated below, Philadelphia OCR believes it is more important to find out what language the student's peers speak. The Philadelphia OCR office required that districts consider students PHLOTE for whom a language other than English is:
(Letter dated Nov. 13, 1997 to Avon Grove, PA School District, attached Partnership Agreement, p. 1)
The above requirements would also classify as PHLOTE any English-speaking student who happened to have a grandparent at home who spoke a language other than English.
Excerpt 4: The Denver office added a different twist to the home language survey questions. At the end of questions about: "What language did your child speak or understand?" and "What languages are spoken by persons living in your home?" the Denver staff added the following parenthetical caution: "Do not list languages learned or used only academically." The effect of that restriction is to keep parents from listing English as a language used by the child!
(Letter dated Aug. 20, 1997 to Window Rock, AZ Unified SD, attached Commitment to Resolve, p. 3)
Excerpt 5: The Chicago office, in its letter to Indianapolis Public Schools, took special care in warning the district for what were essentially non-existent deficiencies in the identification of LEP students.
While the District's identification procedures are adequate and properly implemented, in light of the planned changes in enrollment sites for its language assistance program, beginning with the 1997-98 school year, the District will provide an inservice to all relevant staff . . .
(Letter dated June 27, 1997 to Indianapolis, IN Public Schools, attached Vol. Action Plan, p. 2)
Excerpt 6: Some regional offices, particularly San Francisco and Dallas, cited school districts for what was considered by OCR staff to be an inadequate assessment of students' language skills in Spanish and other languages even though the districts were appropriately assessing students' English language skills. A typical example of this requirement is found in the San Francisco OCR letter to a California school district.
OCR observed that [school] sites subsequently administered primary language assessments of oral, reading and writing skills for those LEP students whose primary language was Spanish through use of the Spanish Assessment of Basic Education (SABE), or the LAS oral, reading and writing assessments in Spanish. . . . However, the District had no method in place for assessing LEP student oral, reading or writing proficiencies in primary languages other than Spanish . . . The District has agreed . . . to develop and implement a primary language assessment process for languages other than Spanish.
(Letter dated March 10, 1997 to Orland, CA Joint Unified Elementary School District, p. 4)
Excerpt 7: In a letter to another California school district, the San Francisco OCR continues the theme of assessment in a student's primary language.
OCR found that all four sites conducted primary language testing through the IPT for some languages (Vietnamese, Tagalog, and Spanish) and administered an informal survey of primary language skills. However, OCR observed no regular testing administered in the primary language to assess reading and writing proficiency.
(Letter dated November 3, 1997 to Milpitas, CA Unified School District, p. 3)
Excerpt 8: The Dallas OCR found a problem because a Texas school district did not document to OCR's satisfaction staff training for testing purposes.
. . . There was inadequate documentation to demonstrate that staff receive formal training in administering the respective English proficiency tests and there is no system ensuring that the quality of training remains consistent and adequate throughout the District's campuses. This lack of training raises concerns that students are not being properly assessed at each campus in the District.
(Letter dated April 25, 1997 to Corpus Christi, TX Independent School District, p. 6)
Excerpt 9: OCR staff found a New Mexico school district out of compliance with regard to the identification and assessment issues, in part because teacher judgments were used.
Although staff members may consider the home language surveys to identify PHLOTE students, in some instances, teacher opinion and preferences are the overriding factors in identifying students to be assessed . . .
(Letter dated June 28, 1996 to Cuba, NM Ind. Schools, p. 9)
Excerpt 10: Of the more than 155 letters reviewed, only a small number offered school officials an alternative to the placement criteria that OCR enforces. This district in Rhode Island was one.
. . . If District staff believe that a student's English language skills are sufficient to enable the student to succeed at grade level even though the student's test scores are lower than the designated cutoffs, the District need not place the student in ESL if the student's last set of grades are all Cs or above and there are work samples from the student indicating that the student has sufficient English language skills to participate effectively at grade level . . .
(Letter dated September 30, 1997 to the Pawtucket, RI Public Schools, attached Compliance Agreement, p. 1)
As shown in the above examples, OCR has become practically inflexible in its application of the assessment requirements. In 1997, OCR referred the Denver Public School system to the Department of Justice for enforcement proceedings in part because of the District's practice of using teacher judgment and grades to reassign students to English language classes, rather than relying strictly on test scores. Why has the agency taken such a hard position on the matter of relying on test scores in a number of language-related competencies to determine who is an LEP student? OCR has informally adopted a definition for LEP that has wide support among bilingual advocates who were concerned that earlier definitions, which were based solely upon a student's ability to use and understand spoken English, would limit the number of students eligible for bilingual education.
These and dozens of other similar examples demonstrate the actions of an agency that has lost sight of its legal purposes, as well as any sense of the realities of school life. Finding schools in violation of civil rights laws for not testing reading and writing in languages such as Tagalog or Vietnamese when there is no legal requirement to do so (or available written tests in those languages), and for not documenting training programs that are also not required by law, is evidence of a bureaucracy gone awry.
Excessive Requirements for Instructional Programs
OCR requires its stamp of approval on many curriculum and staffing decisions. A March 19, 1997 letter of findings from the Dallas OCR to the McAllen, Texas, School District, and the subsequent compliance agreement, illustrate the intrusiveness of OCR's procedures. McAllen is located in south Texas near the border with Mexico. In 1995-1996, the District identified more than 12,000 PHLOTE students (59% of the total student population). McAllen has a long history of educating LEP students through a variety of programs, including bilingual education. For years, the District followed the Texas State Plan for Bilingual Education, which contains options for either bilingual education or ESL programs.
The District also employed many Hispanic (and Spanish speaking) teachers, administrators, and teacher aides. In spite of this history of accomplishments and acquired expertise, OCR staff, who are almost totally untrained in sound educational practices, spent a few days in the District, then wrote a lengthy letter severely criticizing McAllen on a range of matters related to its program for LEP students, including the quality of the District's bilingual and ESL programs and teaching staff. OCR also challenged the quality of textbooks in the classrooms for LEP students and scolded the District for not automatically assigning Spanish-speaking teachers to teach LEP students, or doing more to keep Hispanic parents from withdrawing their children from bilingual programs
Excerpt 11: OCR concluded its criticism of the McAllen school district's programs and practices with the charge that the District was inconsistent in the implementation of its bilingual program.
. . . After visiting various campuses throughout the District, a concern regarding the lack of consistent implementation of the District's bilingual curriculum arose. OCR found that there was a lack of consistency regarding the type of programs that were being offered at the various schools in the District. Additionally, OCR found District-wide lack of consistency in the ALP [Alternative Language Program] course-titles at the secondary level, making it difficult for Central Office Administrators to properly coordinate and verify that BE [Bilingual Education] or ESL course-content and delivery was consistent with the District's goals for the ALP.
(Letter dated March 19, 1997 to the McAllen, TX Independent School District, p. 10)
Excerpt 12: OCR summed up its case against McAllen's alleged inadequate instructional programs with bureaucratic doublespeak.
The totality of the circumstances cited above create enough inconsistencies with Title VI requirements to require immediate action to remedy these deficiencies because the facts strongly indicate that LEP students are being denied an equal educational opportunity.
(Letter dated March 19, 1997 to the McAllen, TX Independent School District, p. 11)
McAllen was required to submit a compliance agreement that totaled 24 pages of detailed requirements, including numerous reporting actions and due dates extending over a four-year period. For years to come, the District's priorities in a number of areas will be defined by the OCR-imposed agreement based solely upon the judgment of OCR officials who lack the expertise and perspective to direct those priorities. Whatever OCR is doing in McAllen and in other similar instances across the country, it is not civil rights law enforcement.
The San Francisco regional office shared with Dallas the distinction of issuing the most intrusive requirements, particularly regarding instructional programs and staffing.
Excerpt 13: As evidenced in the following quotes, the San Francisco office also has worries about consistency.
In examining how the District's program for LEP students was actually being implemented, however, OCR identified varying degrees of ELD [English Language Development] instruction among the sites, as well as different methods being used to provide LEP students with access to the core curriculum, including bilingual, sheltered, and mainstream classes.
OCR further found that at each site bilingual instructional assistants were assigned to administer some or all of these assessments, and that there was not a consistent process in place to provide formal training to such personnel.
LEP students at MSES were, with few exceptions, placed in either a bilingual (Spanish) or sheltered self-contained class (designated as an "ELD" class) with an appropriately qualified teacher, but the ELD curriculum and instructional method differed from class to class . . . OCR did not observe a pattern of LEP students failing to receive ELD in some form at this site. However, the program was not coordinated so that students placed in different classes and enrolled in different grade levels received consistent, progressive ELD instruction.
(Letter dated March 10, 1997 to Orland, CA Public Schools, pp. 4 and 5)
Like McAllen, Texas, and other districts OCR visited, the Orland school system must respond to these charges by modifying its programs to suit the judgments and opinions of the federal officials, no matter how flawed or inappropriately prescriptive those judgments may be.
It is no coincidence that many of the specific examples cited in this report come from the Dallas and the San Francisco OCR offices. These two offices have consistently maintained the "old style" OCR format of spelling out problem areas in great detail. Most other regional offices are placing similarly intrusive requirements on school systems, but have adopted more cursory letter writing formats that hide the requirements under boilerplate language.
For example, the Philadelphia regional office issued a letter dated November 13, 1997 to the Avon Grove, Pennsylvania, school district. The cover letter from OCR was only one and one-half pages long, confirming that the District had agreed to carry out all the items in an attached 14-page "partnership agreement." The agreement was a long list of requirements and procedures the District must implement, with reporting documents due to OCR until the year 2001. In many ways, the Avon Grove agreement is as intrusive as the documents prepared by the San Francisco and Dallas staff. However, unlike the Dallas and San Francisco letters, the very cursory cover letter and the generic language of the agreement do not reveal what is actually being required, or even what information OCR may have uncovered to support the need for any of the changes.
OCR's ad hoc approach to investigations and the staff's rush to judgment affected large as well as small school systems. In a letter dated August 1, 1996 to the Fort Worth, Texas, Independent School District, which operates 113 schools, OCR reported that its staff had investigated programs at seven elementary schools, three middle schools, three high schools, and one special secondary school (the International Newcomers Academy, a pilot program for serving secondary level recent immigrant students). Although 99 of