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OCR Memorandum - May 25, 1970

MEMORANDUM

TO: School Districts With More Than Five Percent National Origin-Minority Group Children

FROM : J. Stanley Pottinger, Director, Office for Civil Rights

SUBJECT: Identification of Discrimination and Denial of Services on the Basis of National Origin

Title VI of the Civil Rights Act of 1964 and the Departmental Regulation (45 CFR Part 80) promulgated thereunder require that there be no discrimination on the basis of race, color or national origin in the operation of any federally assisted programs.

Title VI compliance reviews conducted in school districts with large Spanish-surnamed student populations by the Office for Civil Rights have revealed a number of common practices which have the effect of denying equality of educational opportunity to Spanish-surnamed pupils. Similar practices which have the effect of discrimination on the basis of national origin exist in other locations with respect to disadvantaged pupils from other national origin-minority groups, for example, Chinese or Portuguese.

The purpose of this memorandum is to clarify D/HEW policy on issues concerning the responsibility of school districts to provide equal educational opportunity to national origin minority group children deficient in English language skills. The following are some of the major areas of concern that relate to compliance with Title VI:

  1. Where 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.
  2. School districts must not assign national origin-minority group students to classes for the mentally retarded on the basis of criteria which essentially measure or evaluate English language skills; nor may school districts deny national origin-minority group children access to college preparatory courses on a basis directly related to the failure of the school system to inculcate English language skills.
  3. Any ability grouping or tracking system employed by the school system to deal with the special language skill needs of national origin-minority group children must be designed to meet such language skill needs as soon as possible and must not operate as an educational dead-end or permanent track.
  4. School 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.

School districts should examine current practices which exist in their districts in order to assess compliance with the matters set forth in this memorandum. A school district which determines that compliance problems currently exist in that district should immediately communicate in writing with the Office for Civil Rights and indicate what steps are being taken to remedy the situation. Where compliance questions arise as to the sufficiency of programs designed to meet the language skill needs of national origin-minority group children already operating in a particular area, full information regarding such programs should be provided. In the area of special language assistance, the scope of the program and the process for identifying need and the extent to which the need is fulfilled should be set forth.

School districts which receive this memorandum will be contacted shortly regarding the availability of technical assistance and will be provided with any additional information that may be needed to assist districts in achieving compliance with the law and equal educational opportunity for all children. Effective as of this date the aforementioned areas of concern will be regarded by regional Office for Civil Rights personnel as a part of their compliance responsibilities.

  1. Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786 (1974).
  2. Castaneda v. Pickard, 648 F. 2d 989 (5th Cir. 1981).
  3. These and other applicable policy documents can be located through OCR's automated Policy Codification System (PCS) by selecting "current" policy and the keywords "Limited-English Proficient (LEP) Student" (F054). Documents not listed as "current" policy in the PCS should not be used.
  4. But cf. Teresa P. v. Berkeley Unified School District, 724 F. Supplement 698, 714 (N.D. Cal. 1989) (finding that district had adequately implemented its language remediation program even though many of its bilingual and ESL teachers did not hold applicable credentials; court noted that district probably could not have obtained fully credentialed teachers in all language groups, district was requiring teachers to work toward completion of credential requirements as a condition of employment, record showed no differences between achievement of students taught by credentialed teachers and achievement of students taught by uncredentialed teachers, and district's financial resources were severely limited).
  5. Cf. Castaneda, 648 F. 2d at 1013 (court of appeals remanded for determination as to whether deficiencies in teaching skills were due to inadequate training program (100-hour program designed to provide 700-word Spanish vocabulary) or whether failure to master program caused teaching deficiencies).
  6. Aides at the kindergarten and first grade levels need not demonstrate reading and writing proficiency.
  7. For example, when an overwhelming majority of students in a district are LEP students, it may be more appropriate to compare their performance with their non-LEP peers county- or state-wide.
  8. For an example of a program exclusively for newly-arrived immigrants consistent with Title VI, see OCR's Letter of Findings in Sacramento City Unified School District, Compliance Review Number 09-89-5003, February 21, 1991.
  9. Section 1703(f) of the EEOA states, in pertinent part, "No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by. . . .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." The pertinent section of the OCR 1970 memorandum states, "Where 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."
  10. OCR's 1975 Task Force Findings Specifying Remedies Available for Eliminating Past Educational Practices Ruled Unlawful Under Lau v. Nichols.
  11. The applicable Department of Education regulation is 34 C.F.R. § 100.3(b)(2).
  12. A Ninth Circuit case also treated § 1703(f) and Title VI claims differently, but in such a terse fashion that it cannot be determined whether these differences would ever have a practical effect. See Guadalupe Org. v. Tempe Elementary School Dist. No. 3., 587 F. 2d 1022, 1029-30 (9th Cir. 1978) (court found that maintenance bilingual/bicultural education was not necessary to provide students with the "meaningful education and the equality of educational opportunity that [Title VI] requires"; court also found that districts did not have to provide maintenance bilingual/bicultural education to be deemed to have taken "'appropriate action to overcome language barriers that impede equal participation by its students in its instructional program'" (quoting § 1703(f)).

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