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Developing Programs for English Language Learners: OCR Memorandum

Resource Materials for Planning and Self-Assessments

SEP 27 1991

TO : OCR Senior Staff

FROM : Michael L. Williams, Assistant Secretary for Civil Rights

SUBJECT: Policy Update on Schools' Obligations Toward National Origin Minority Students With Limited-English Proficiency (LEP students)

This policy update is primarily designed for use in conducting Lau compliance reviews -- that is, compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools' programs. The policy update adheres to OCR's past determination that Title VI does not mandate any particular program of instruction for LEP students. In determining whether the recipient is operating a program for LEP students that meets Title VI requirements, OCR will consider whether: (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy; (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school; and (3) the program succeeds, after a legitimate trial, in producing results indicating that students' language barriers are actually being overcome. The policy update also discusses some difficult issues that frequently arise in Lau investigations. An appendix to the policy discusses the continuing validity of OCR's use of the Castaneda standard to determine compliance with the Title VI regulation.

This document should be read in conjunction with the December 3, 1985, guidance document 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. These two documents are attached for your convenience.

Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCR's Title VI Lau policy. In Part I, more specific standards are enunciated for staffing requirements, exit criteria and program evaluation. Policy issues related to special education programs, gifted/talented programs, and other special programs are also discussed. Part II of the policy update describes OCR's policy with regard to segregation of LEP students.

The appendix to this policy update discusses the use of the Castaneda standard and the way in which Federal courts have viewed the relationship between Title VI and the Equal Educational Opportunities Act of 1974.

With the possible exception of Castaneda, which provides a common sense analytical framework for analyzing a district's program for LEP students that has been adopted by OCR, and Keyes v. School Dist. No. 1, which applied the Castaneda principles to the Denver Public Schools, most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance. The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCR's practical legal and policy experience in the field. In that regard, the issues discussed herein, and the policy decisions reached, reflect a careful and thorough examination of Lau case investigations carried out by OCR's regional offices over the past few years, comments from the regional offices on a draft version of the policy, and lengthy discussions on the issues with some of OCR's most experienced investigators. Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate.

I. Additional guidance for applying the May 1970 and December 1985 memoranda.

The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI: (1) the need for an alternative language program for LEP students; and (2) the adequacy of the program chosen by the recipient. Issues related to the adequacy of the program chosen by the recipient will be discussed first, as they arise more often in Lau investigations. Of course, the determination of whether a recipient is in violation of Title VI will require a finding that language minority students are in need of an alternative language program in order to participate effectively in the recipient's educational program.

A. Adequacy of Program

This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach as a standard for determining the adequacy of a recipient's efforts to provide equal educational opportunities for LEP students.

1. Soundness of educational approach

Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field, or at least theories that are recognized as legitimate educational strategies. 648 F. 2d at 1009. Some approaches that fall under this category include transitional bilingual education, bilingual/bicultural education, structured immersion, developmental bilingual education, and English as a Second Language (ESL). A district that is using any of these approaches has complied with the first requirement of Castaneda. If a district is using a different approach, it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy.

2. Proper Implementation

Castaneda requires that "the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school." 648 F. 2d at 1010. Some problematic implementation issues have included staffing requirements for programs, exit criteria, and access to programs such as gifted/talented programs. These issues are discussed below.

Staffing requirements

Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time. Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students. When formal qualifications have been established, and when a district generally requires its teachers in other subjects to meet formal requirements, a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications. See Castaneda, 648 F. 2d at 1013. A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications. See 34 C.F.R. §100.3(b)(ii).

Whether the district's teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program. Some states have no requirements beyond requiring that a teacher generally be certified, and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the district's chosen educational program. Discussed below are some minimum qualifications for teachers in alternative language programs.

If a recipient selects a bilingual program for its LEP students, at a minimum, teachers of bilingual classes should be able to speak, read, and write both languages, and should have received adequate instruction in the methods of bilingual education. In addition, the recipient should be able to show that it has determined that its bilingual teachers have these skills. See Keyes, 576 F. Supp. at 1516-17 (criticizing district for designating teachers as bilingual based on an oral interview and for not using standardized tests to determine whether bilingual teachers could speak and write both languages); cf. Castaneda, 648 F. 2d at 1013 ("A bilingual education program, however sound in theory, is clearly unlikely to have a significant impact on the language barriers confronting limited English speaking school children, if the teachers charged with the day-to-day responsibility for educating these children are termed 'qualified' despite the fact that they operate in the classroom under their own unremedied language disability"). In addition, bilingual teachers should be fully qualified to teach their subject.

If a recipient uses a method other than bilingual education (such as ESL or structured immersion), the recipient should have ascertained that teachers who use those methods have been adequately trained in them. This training can take the form of inservice training, formal college coursework, or a combination of the two. In addition, as with bilingual teachers, a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students. In making this determination, the recipient should use validated evaluative instruments -- that is, tests that have been shown to accurately measure the skills in question. The recipient should also have the teacher's classroom performance evaluated by someone familiar with the method being used.

ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills. Compare Teresa P., 724 F. Supp. at 709 (finding that LEP students can be taught English effectively by monolingual teachers), with Keyes, 576 F. Supp. at 1517 ("The record shows that in the secondary schools there are designated ESL teachers who have no second language capability. There is no basis for assuming that the policy objectives of the [transitional bilingual education] program are being met in such schools").

To the extent that the recipient's chosen educational theory requires native language support, and if the program relies on bilingual aides to provide such support, the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking, reading, and writing both languages. In addition, the bilingual aides should be working under the direct supervision of certificated classroom teachers. Students should not be getting instruction from aides rather than teachers. 34 C.F.R. § 100.3(b)(1)(ii); see Castaneda, 648 F.2d at 1013 ("The use of Spanish speaking aides may be an appropriate interim measure, but such aides cannot...take the place of qualified bilingual teachers").

Recipients frequently assert that their teachers are unqualified because qualified teachers are not available. If a recipient has shown that it has unsuccessfully tried to hire qualified teachers, it must provide adequate training to teachers already on staff to comply with the Title VI regulation. See Castaneda, 648 F. 2d at 1013. Such training must take place as soon as possible. For example, recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students. This requirement is not, in itself, sufficient to meet the recipient's obligations under the Title VI regulation. To ensure that LEP students have access to the recipient's programs while teachers are completing their formal training, the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom, as well as any assistance from bilingual aides that may be necessary to carry out the recipient's interim program.

Exit Criteria for Language Minority LEP Students

Once students have been placed in an alternative language program, they must be provided with services until they are proficient enough in English to participate meaningfully in the regular educational program. Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include: (1) whether they are able to keep up with their non-LEP peers in the regular educational program; (2) whether they are able to participate successfully in essentially all aspects of the school's curriculum without the use of simplified English materials; and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers.

Generally, a recipient will have wide latitude in determining criteria for exiting students from an alternative language program, but there are a few basic standards that should be met. First, exit criteria should be based on objective standards, such as standardized test scores, and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom. Second, students should not be exited from the LEP program unless they can read, write, and comprehend English well enough to participate meaningfully in the recipient's program. Exit criteria that simply test a student's oral language skills are inadequate. Keyes, 576 F. Supp. at 1518 (noting importance of testing reading and writing skills as well as oral language skills). Finally, alternative programs cannot be "dead end" tracks to segregate national origin minority students.

Many districts design their LEP programs to temporarily emphasize English over other subjects. While schools with such programs may discontinue special instruction in English once LEP students become English-proficient, schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English. Castaneda, 648 F. 2d at 1011.

Special Education Programs

OCR's overall policy on this issue, as initially announced in the May 1970 memorandum, is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills. The additional legal requirements imposed by Section 504 also must be considered when conducting investigations on this issue. This policy update does not purport to address the numerous Title VI and Section 504 issues related to the placement of limited English-proficient students in special education programs. Although OCR staff are very familiar with Section 504 requirements, additional guidance on the relationship between Section 504 and Lau issues that arise under Title VI may be helpful. A separate policy update will be prepared on those issues.

Pending completion of that policy update, Lau compliance reviews should continue to include an inquiry into the placement of limited-English-proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs, or where special education programs provided for LEP students do not address their inability to speak or understand English. In addition, compliance reviews should find out whether recipients have policies of "no double services": that is, refusing to provide both alternative language services and Special education to students who need them. Such inquiries would entail obtaining basic data and information during the course of a Lau compliance review regarding placement of LEP students into special education programs. If data obtained during the inquiry indicates a potential problem regarding placement of LEP students into special education, the regional office may want to consult headquarters about expanding the time frames for the review to ensure that it can devote the time and staff resources to conduct a thorough investigation of these issues. Alternatively, the region could schedule a compliance review of the special education program at a later date. In small to medium-sized school districts, regional offices may be able to gather sufficient data to make a finding regarding the special education program as part of the overall Lau review.

Gifted/Talented Programs and Other Specialized Programs

The exclusion of LEP students from specialized programs such as gifted/talented programs may have the effect of excluding students from a recipient's programs on the basis of national origin, in violation of 34 C.F.R. §100.3(b)(2), unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program.

LEP students cannot be categorically excluded from gifted/talented or other specialized programs. If a recipient has a process for locating and identifying gifted/talented students, it must also locate and identify gifted/talented LEP students who could benefit from the program.

In determining whether a recipient has improperly excluded LEP students from its gifted/talented or other specialized programs, OCR will carefully examine the recipient's explanation for the lack of participation by LEP students. OCR will also consider whether the recipient has conveyed these reasons to students and parents.

Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include: (1) that time for the program would unduly hinder his/her participation in an alternative language program; and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation.

Unless the particular gifted/talented program or program component requires proficiency in English language skills for meaningful participation, the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English proficiency. To the extent feasible, tests used to place students in specialized programs should not be of a type that the student's limited proficiency in English will prevent him/her from qualifying for a program for which they would otherwise be qualified.

3. Program Evaluation

In return for allowing schools flexibility in choosing and implementing an alternative language program, Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial. As a practical matter, recipients cannot comply with this requirement without periodically evaluating their programs. If a recipient does not periodically evaluate or modify its programs, as appropriate, it is in violation of the Title VI regulation unless its program is successful. Cf. Keyes, 576 F. Supp. at 1518 ("The defendant's program is also flawed by the failure to adopt adequate tests to measure the results of what the district is doing.... The lack of an adequate measurement of the effects of such service [to LEP students] is a failure to take reasonable action to implement the transitional bilingual policy").

Generally, "success" is measured in terms of whether the program is achieving the particular goals the recipient has established for the program. If the recipient has established no particular goals, the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipient's programs.

B. Need for a formal program

Recipients should have procedures in place for identifying and assessing LEP students. As the December 1985 memorandum stated, if language minority students in need of an alternative language program are not being served, the recipient is in violation of Title VI.

The type of program necessary to adequately identify students in need of services will vary widely depending on the demographics of the recipients' schools. In districts with few LEP students, at a minimum, school teachers and administrators should be informed of their obligations to provide necessary alternative language services to students in need of such services, and of their obligation to seek any assistance necessary to comply with this requirement. Schools with a relatively large number of LEP students would be expected to have in place a more formal program.

Title VI does not require an alternative program if, without such a program, LEP students have equal and meaningful access to the district's programs. It is extremely rare for an alternative program that is inadequate under Castaneda to provide LEP students with such access. If a recipient contends that its LEP students have meaningful access to the district's programs, despite the lack of an alternative program or the presence of a program that is inadequate under Castaneda, some factors to consider in evaluating this claim are: (1) whether LEP students are performing as well as their non-LEP peers in the district, unless some other comparison seems more appropriate; (2) whether LEP students are successfully participating in essentially all aspects of the school's curriculum without the use of simplified English materials; and (3) whether their dropout and retention-in-grade rates are comparable to those of their non-LEP peers. Cf. Keyes, 576 F. Supp. at 1519 (high dropout rates and use of "levelled English" materials indicate that district is not providing equal educational opportunity for LEP students).

If LEP students have equal access to the district's programs under the above standards, the recipient is not in violation of Title VI even if it has no program or its program does not meet the Castaneda standard. If application of the above standards shows that LEP students do not have equal access to the district's programs, and the district has no alternative language program, the district is in violation of Title VI. If the district is implementing an alternative program, it then will be necessary to apply the three-pronged Castaneda approach to determine-whether the program complies with Title VI.

II. Segregation of LEP students

Providing special services to LEP students will usually have the effect of segregating students by national origin during at least part of the school day. Castaneda states that this segregation is permissible because "the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation." 648 F. 2d at 998.

OCR's inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals. In other words, OCR will not examine whether ESL, transitional bilingual education, developmental bilingual education, bilingual/bicultural education, structured immersion, or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students. Instead, OCR will examine whether the degree of segregation in the program is necessary to achieve the program's educational goals.

The following practices could violate the anti-segregation provisions of the Title VI regulation: (1) segregating LEP students for both academic and nonacademic subjects, such as recess, physical education, art and music; and (2) maintaining students in an alternative language program longer than necessary to achieve the district's goals for the program.

APPENDIX: Use of the Castaneda standard to determine compliance with Title VI.

In determining whether a recipient's program for LEP students complies with Title VI of the Civil Rights Act of 1964, OCR has used the standard set forth in Castaneda v. Pickard, 648 F. 2d 989 (5th Cir. 1981). Under this standard, a program for LEP students is acceptable if: (1) "[the] school system 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] school system are reasonably calculated to implement effectively the educational theory adopted by the school;" and (3) the school's program succeeds, after a legitimate trial, in producing results indicating that the language barriers confronting students are actually being overcome." Id. at 1009-10.

The Castaneda court based its standard on the Equal Educational Opportunities Act of 1974 (EEOA), P.L. No. 93-380, codified at 20 U.S.C. §1701-1720, rather than on Title VI or its implementing regulation (20 C.F.R. Part 100). The relevant portion of the EEOA (20 U.S.C. §1703(f)) is very similar to OCR's May 1970 memorandum describing the obligations of districts toward limited-English-proficient students under Title VI of the Civil Rights Act of 1974. In Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786 (1974), the Supreme Court upheld OCR's authority to establish the policies set forth in the May 1970 memorandum.

In view of the similarity between the EEOA and the policy established in the 1970 OCR memorandum, in 1985 OCR adopted the Castaneda standard for determining whether recipients' programs for LEP students complied with the Title VI regulation. Several courts have also treated Title VI and the EEOA as imposing the same requirements regarding limited-English-proficient students. See Heavy Runner v. Bremner, 522 F. Supp. 162, 165 (D. Mont. 1981); Rios v. Read, 480 F. Supp. 14, 21-24 (E.D.N.Y. 1978) (considered Title VI, §1703(f), and Bilingual Education Act of 1974 claims together; used 1975 Lau Remedies to determine compliance); Cintron v. Brentwood Union Free School Dist., 455 F. Supp. 57, 6364 (E.D.N.Y. 1978) (same); see also Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030 (7th Cir. 1987) (used Castaneda standard for §1703(f) claim; remanded claim under Title VI regulation without specifying standard to be used in resolving it, except to note that proof of discriminatory intent was not necessary to establish a claim under the Title VI regulation); Idaho Miqrant Council v. Board of Education, 647 F.2d 69 (9th Cir. 1981) (Idaho state education agency had an obligation under §1703(f) and Title VI to ensure that needs of LEP students were addressed; did not discuss any differences in obligations under Title VI and §1703(f)).

Castaneda itself did not treat Title VI and the EEOA interchangeably, however. Instead, it distinguished between them on the ground that a showing of intentional discrimination was required for a Title VI violation, while such a showing was not required for a §1703(f) violation. Castaneda, 648 F.2d at 1007. See also Keyes v. School Dist. No. 1, 576 F. Supp. 1503, 1519 (D. Colo. 1983) (court found that alternative language program violated § 1703(f) and elected not to determine whether it also violated Title VI; questioned continuing validity of Lau in light of Bakke and noted that remedying §1703(f) violation would necessarily remedy any Title VI violation).

Castaneda and Keyes were decided before Guardians Association v. Civil Service Commission of New York, 463 U.S. 582, 607 n.27, 103 S. Ct. 3221, 3235 n.27 (1983). In Guardians, a majority of the Supreme Court upheld the validity of administrative regulations incorporating a discriminatory effect standard for determining a Title VI violation). Thus, Castaneda and Keyes do not undermine the validity of OCR's decision to apply § 1703(f) standards to determine compliance with the Title VI regulation.

A recent California case, however, distinguished ? 1703(f) and the Title VI regulation on other grounds. Teresa P. v. Berkeley Unified School Dist., 724 F. Supp. 698 (N.D. Cal. 1989). In analyzing the §1703(f) claim in Teresa P., the court used the three-part Castaneda standard and determined that the district's program was adequate under that standard. Id. at 712-16. In addressing the claim brought under the Title VI regulation, however, the court stated that plaintiffs had failed to make a prima facie case because they had not alleged discriminatory intent on the part of the defendants, nor had they "offered any evidence, statistical or otherwise," that the alternative language program had a discriminatory effect on the district's LEP students. Id. at 716-17.

In Teresa P., the district court found that the district's LEP students were participating successfully in the district's curriculum, were competing favorably with native English speakers, and were learning at rates equal to, and in some cases greater than, other LEP students countywide and statewide. 724 F. Supp. at 711. The court also found that, in general, the district's LEP students scored higher than the county and state-wide average on academic achievement tests. Id. at 712. Given these findings, the dismissal of the Title VI claim in Teresa P. can be regarded as consistent with OCR's May 1970 and December 1985 memoranda, both of which require proof of an adverse impact on national origin minority LEP students to establish a violation of the Title VI regulation.

Neither Teresa P. nor any other post-Castaneda case undermines OCR's decision to use the Castaneda standard to evaluate the legality of a recipient's alternative language program. OCR will continue to use the Castaneda standard, and if a recipient's alternative language program complies with this standard the recipient will have met its obligation under the Title VI regulation to open its program to LEP students.

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Last Modified: 03/16/2005