Bilingual Education Report

CENTER FOR EQUAL OPPORTUNITY

FEDERAL ADVOCACY AND ENGLISH LEARNERS:
THE OFFICE FOR CIVIL RIGHTS' AGENDA FOR PUBLIC SCHOOLS

JULY 1999

by Jim Littlejohn*

INTRODUCTION
by Jorge Amselle

This report is a follow-up to the extensive review Jim Littlejohn conducted last year of nearly 160 compliance agreements between the Department of Education Office for Civil Rights and school districts across the country. Much of the information in this report is based on presentations made by OCR officials at the January 1999 National Association for Bilingual Education (NABE) conference in Dallas, Texas.

The facts presented by Mr. Littlejohn directly contradict the testimony of OCR's Director, Norma Cantu, before the U.S. Congress Subcommittee on Oversight and Investigations of the House Committee on Education and the Workforce on June 22, 1999. Contrary to Ms. Cantu's claims, there is undeniable evidence that her agency engages in inappropriate and illegal enforcement practices in order to further a specific political agenda of multiculturalism and multilingualism.

Regardless of Ms. Cantu's denials, this report documents how OCR agents: mandate that schools over-identify language-minority students in violation of their civil rights; prescribe bilingual education and native-language instruction as the only acceptable methods of education for these students; and otherwise interfere in educational and staffing decisions that are the rightful domain of individual school districts. All of these actions are undertaken under the guise of "voluntary" compliance agreements, which schools are forced to sign-or risk losing all federal funding.

EXECUTIVE SUMMARY

"We're back!" Angela Martinez, a U.S. Office for Civil Rights (OCR) attorney, crowed to a friendly audience of bilingual advocates at the January 1999 National Association of Bilingual Education (NABE) conference in Denver. Ms. Martinez, who coordinates OCR's efforts to review schools' programs for English learners, reported that OCR is working on more than 400 cases involving programs for English learners in 47 states, and bragged that the agency continues to be a "force" that invokes fear in schools. In a self-congratulatory pep talk, Ms. Martinez and several other OCR staff told the audience what it wanted to hear:

OCR shared the stage at the NABE conference with school officials responsible for bilingual education programs, who generally praised OCR's cooperative approach. However, much of what the school representatives had to say indicated that, beneath the veneer of cooperation, the agency routinely and substantially interferes in local decisions about teaching English learners. OCR likes to talk about the flexibility it allows schools, but that flexibility exists only within a very narrow range of so-called requirements, none of which has been issued as regulations.

Since 1993, OCR has been headed by Norma Cantú, a former Mexican American Legal Defense and Education Fund (MALDEF) attorney who strongly favors bilingual education programs, but lacks public support to issue civil rights guidelines requiring such programs. There have been few other constraints placed upon OCR, which has freely imposed a plethora of intrusive requirements on schools across the nation. Undeterred by the lack of specific regulations or guidelines, the agency continues to support bilingual education programs wherever possible, especially in states and school districts with large Hispanic populations.

A clear example of this is evident now in California, where over the past few years OCR has worked closely with the State Education Department, requiring hundreds of California school districts to implement bilingual education programs. Although statewide data revealed the failures of bilingual education, both the State and OCR effectively opposed any methodologies other than bilingual education, and schools were rarely granted waivers to use English immersion approaches. However, in June 1998, 61 percent of California voters approved Proposition 227(the Unz initiative), which places heavy emphasis on instruction in English for English learners. (Parents may seek waivers to place their children into bilingual education programs.) OCR disagrees with Proposition 227 and as part of a strategy to delay its implementation has issued no written guidance to California schools—and has no intention of doing so. Thus, many school officials incorrectly believe they are bound to implement the OCR-imposed bilingual education programs. OCR claims it is providing school districts guidance on a case-by-case basis, but if the double speak OCR indulged in at the NABE conference is any indication of the quality of this guidance, many California schools will undoubtedly be reluctant to move away from bilingual education programs unless they have clear written assurances from OCR that it is permissible to do so. They will rightly fear that the agency's verbal assurances and Catch 22 approach to policy will result in OCR's continued rejection of programs other than bilingual education.

The director of the San Francisco OCR, Stefan Rosenzweig, informed NABE participants that OCR is working closely with the California Department of Education in its implementation of Proposition 227 to make sure that "every district heard the same thing."1. However, Mr. Rosenzweig is a bilingual advocate and former attorney for Multicultural Education, Training and Advocacy (META), a bilingual education advocacy organization that sued Florida and obtained a consent decree imposing statewide bilingual education programs. In 1997, Assistant Secretary Cantú installed Mr. Rosenzweig as head of OCR's San Francisco office. His mission now is to preserve bilingual education in California, and he has deliberately chosen not to provide California districts with written guidance on how to change their OCR resolution agreements in light of Proposition 227. In the meantime, OCR staff have been busy working to influence the California draft guidelines for implementing Proposition 227. These guidelines, which will soon be issued, have incorporated many of the flawed federal requirements that make it almost impossible to exit Limited-English-Proficient (LEP) students from special language programs. OCR's behind the scenes work with California state and school officials may already have undermined a central purpose of Proposition 227—to move most California English learners into English mainstream classes once they understand ordinary classwork in English.

Over the past 18 months, Congress has held hearings on bilingual education programs that segregate English learners and fail to teach them English. It has also looked at OCR's practice of imposing unpublished requirements on school systems that enroll English-language learners. In November 1998, the Center for Equal Opportunity published a policy brief documenting the excessive bilingual education requirements OCR places on school systems under the guise of enforcing civil rights laws.2. Legislation to correct these problems—The English Language Fluency Act—passed the House in August 1998, but did not reach the floor of the Senate before the 105th Congress adjourned.

OCR HAS BECOME AN ADVOCACY AGENCY

Opposition to English Immersion Programs

Congress established OCR to enforce civil rights laws. While OCR has often strayed from its role as an impartial determiner of facts, its performance at the NABE conference illustrates the degree to which the agency has become an advocate for its preferred educational pedagogy. OCR staff repeatedly criticized legitimate state and national efforts that emphasized English language acquisition strategies other than bilingual education. They denounced California's Proposition 227 and cheered the failure of the English Language Fluency Act.3. Such behavior is to be expected from the NABE membership, but is inappropriate for members of a federal law enforcement agency.

In its current incarnation as an advocate for bilingual education, OCR presented a one-sided discussion of the issue and remained silent on legal decisions that upheld Proposition 227. Nor did OCR staff make any reference to Secretary Riley's stated goal of moving English learners into English-only classes within three years. NABE strongly criticized the Clinton White House for promoting the three-year limit.4. OCR has consistently refused to push school districts to move English learners quickly into English-only classes and gave no indication that it will enforce the three-year limit. The agency states that it expects schools to teach English, but it also strongly supports long-term bilingual programs that segregate English learners from mainstream classes for five to seven years—segregation it would find intolerable under other circumstances.

At the conference, OCR staff deliberately misrepresented the English Language Fluency Act by stating that it would diminish educational opportunities for English-language learners. This act, sponsored in the 105th Congress by former Congressman Frank Riggs of California, would have provided states block grants for English learners and placed a two-year limit on student participation in the funded program. Currently, more than $200 million of bilingual education grant funds available each year are distributed through competition to a relatively small number of school districts, some of which receive federal funding for the same students during five or more years.

The two-year per student funding limit proposed in the act would have required states and school systems to achieve timely results in teaching students English, while still permitting bilingual education as an option. At the same time, it would have maintained overall funding for programs for English learners. The two-year limit would have benefited a much larger number of students, presumably those with the greatest need. Under the act, OCR compliance agreements requiring bilingual education programs would have been voided.

OCR staff, who presented the English Language Fluency Act in the worst possible light, emphasized to the NABE audience that the Secretary was "fearful" that litigation would increase if schools do not have the opportunity to comply voluntarily with federal civil rights laws.5. This is a puzzling misrepresentation of the act and its intent. Nothing in the act would have discouraged voluntary compliance or encouraged litigation. Voiding OCR agreements requiring bilingual education would simply have given school officials an opportunity to review the types of programs they wanted for English learners. OCR staff did not explain how making such a choice available to school officials would result in more litigation. Since similar legislation has already been proposed in the 106th Congress, OCR may yet have an opportunity to clarify its concerns.

Compliance Reviews as Advocacy Tools

OCR uses its "proactive" compliance review program as a tool for advocacy rather than for impartial law enforcement. The agency devotes substantial resources to compliance reviews related to English-language learners and other within-school issues, based upon flimsy evidence that violations of the civil rights laws may exist. For example, in 1998, OCR initiated 102 compliance reviews, out of which approximately 85 (or 83 percent) involved issues affecting English-language learners; over 400 LEP reviews have been conducted over the past six to seven years, which represents more than 50 percent of the total number of OCR reviews.6. However, less than one percent of the complaints OCR receives allege discrimination against English learners.7.

OCR staff have historically asserted that the consistently low number of complaints emanating from various ethnic communities is not a good indicator of whether national origin students (including English learners) encounter civil rights problems in schools. This was a repeated theme at the NABE conference: Parents of LEP students are "vulnerable," "they don't trust the federal government," and so on.8. OCR reasons that there should be more reviews of LEP issues to compensate for the lack of complaints. Their assumptions are rarely challenged, but are they valid? How do these parents differ from other minority groups who do file complaints of discrimination? What about the parents of LEP students who boycotted a Los Angeles elementary school in 1997 because the school officials refused repeated parental requests to move their children from bilingual programs to English immersion programs? Weren't they also "vulnerable"?

Armed primarily with assumptions and sociolegal jargon, OCR continues to conduct dozens of resource-intensive compliance reviews related to English-language learners and to discover civil rights "concerns" in school districts based upon ever-shifting, unpublished requirements. Few of the concerns discovered by OCR would stand up as violations of the law in a formal judicial proceeding. Yet the result of every OCR review is that school systems are required to enter into lengthy (often 40-to 60-page) "voluntary" agreements that affect almost every aspect of local educational decision-making.9.

OCR REQUIREMENTS ARE UNJUSTIFIED AND UNFAIR

Misapplication of the Equal Access Standard

The excessive requirements that OCR imposes on school systems are not justified by any reasonable standard and result in the largest number of students being placed into bilingual education programs for the greatest length of time. For example, the agency ensures an over-identification of LEP students by requiring schools to classify students as LEP on the basis of criteria that many native English speakers could not meet. A student with even a remote language background other than English who falls below average performance in either speaking, reading, writing, or understanding is labeled as LEP. A LEP student remains a legal responsibility for the school system for the duration of the child's school career, or until achieving average performance in all areas and maintaining that performance for an unspecified number of years.10.

OCR asserts that this requirement meets the equity standards of the civil rights laws. However, both the premise of the requirement and its implementation are fundamentally flawed, placing a legal burden on school systems that goes well beyond the intent of federal civil rights laws. For example, if average performance is defined as achieving the 50th percentile of a standardized test, by definition one-half of all students who take the test will fall below the average, including native English speakers. But, OCR's criteria applied to this situation would mean that every English learner must achieve the 50th percentile in English reading, writing, speaking, and understanding skills. Thus, even if an LEP-designated student became reasonably competent at speaking English and reached the specified score (e.g., 40th or 50th percentile) for competency in that area, OCR would continue to hold the district responsible for providing special alternative programs until all of the student's scores reached the specified criteria. This is a higher competency standard than most native English-speaking students will meet.

The legal standard established by the courts is equality of opportunity—that is, equal access to school programs. In the past, English learners were presumed to acquire this when they could understand ordinary class-work in the English language. However, OCR's current requirement—that all English learners must continue to receive special program assistance (e.g., bilingual education or English as a Second Language) until they achieve a level of speaking, reading, writing, and understanding that is equal to or greater than the "average" of all English-speaking students—turns the principle of equality on its head.

LEP students who understand ordinary class-work in English but have other academic difficulties are situated similarly to native English speakers who have limited English vocabularies and need remedial assistance in one or more subject areas. But OCR's exit criteria provide special programs for a particular class of students (i.e., English learners) well beyond the point where such students are relatively indistinguishable from many native English speakers. Such requirements are based upon a misapplication of the "equal access" principle and could be found to violate both the civil rights laws and the Fourteenth Amendment to the Constitution.

While no one would argue against providing any student with needed special assistance, at issue here is what is required to achieve equality under the law. The U.S. Supreme Court 1974 Lau v. Nichols decision clarified that Title VI of the Civil Rights Act of 1964 requires schools to take "affirmative steps" to open the instructional program to LEP students. However, OCR under the current administration has moved well beyond the mandates of Lau and other federal court decisions by placing open-ended requirements on school systems. An OCR panel was asked how long they monitor school systems that are implementing OCR-required plans for teaching English learners. The answers ranged from 4 - 5 years to 10-12 years. Stefan Rosenzweig, the San Francisco OCR Director stated "We stay until they get it right. We will stay there until they are providing the kind of programs that pass muster with OCR."11. Without benefit of comment or critique from the educational community or Congress, OCR has defined "affirmative steps" in a way that maintains school systems in a state of perpetual noncompliance with the civil rights laws.

Preference for Bilingual Education

OCR staff stated several times at the NABE conference that the agency does not require schools to implement bilingual programs and that schools may implement any program that is effective, including ESL or English immersion programs. Yet they repeatedly emphasized their view of an acceptable program as one that "teaches English and provides access to high quality education" at the same time.12. The Director of the San Francisco regional office elaborated this point by asking, "Are these teachers [of LEP students] effective in communicating? Are they effective in dealing with both prongs of the program?"13. One attorney raised the legal standard that OCR applies even higher by stating that OCR will ensure that LEP students not only have equal access but also have "access to high standards."14.

OCR automatically assumes that schools that implement bilingual education programs meet the agency's view of their legal standard, whereas schools that implement English immersion programs must justify to OCR’s satisfaction how both prongs of the standard will be met.15. Schools that implement English immersion programs face an increased risk of OCR scrutiny to prove the merits of their programs in a manner that meets the agency's arbitrary, and unpublished, criteria. At a minimum, the schools must demonstrate that they are providing LEP students full access to all academic courses while teaching them English. At the same time, OCR holds school officials accountable for any academic deficits that LEP students may have, whether or not these deficits result from factors within the school's control.16.

Selected Legal Standards

Regardless of what OCR says and wants schools to believe, the courts have not required school districts to teach the English language and academic content at the same time. Judge Legge discussed the issue in some detail in his July 15, 1998, decision upholding Proposition 227. In briefs filed with the court, plaintiffs argued that Proposition 227 would violate Section 1703 (f) of the Equal Educational Opportunities Act (and Title VI) by focusing a one-year period primarily on English language acquisition at the expense of academic content. Judge Legge, in rejecting this argument, directly quoted from the 1983 Castaneda v. Pickard decision:

[W]e do not think that a school system which provides limited English speaking students with a curriculum, during the early part of their school career, which has, as its primary objective, the development of literacy in English, has failed to fulfill its obligations under § 1703(f), even if the result of such a program is an interim sacrifice of learning in other areas during this period. . . . We believe the statute clearly contemplates that provision of a program placing primary emphasis on the development of English language skills would constitute "appropriate action."

We also believe, however, that § 1703(f) leaves schools free to determine whether they wish to discharge these obligations simultaneously, by implementing a program designed to keep limited English speaking students at grade level in other areas of the curriculum by providing instruction in their native language at the same time that an English language development effort is pursued, or to address these problems in sequence, by focusing first on the development of English language skills and then later providing students with compensatory and supplemental education to remedy deficiencies in other areas which they may develop during this period.

Castaneda 648 F.2d at 1011-12 (emphasis added).17.

The legal reasoning in Castaneda adopted by Judge Legge also applies to Title VI and should be part of OCR's policy. However, OCR staff never discuss with school districts this aspect of the ruling in Castaneda. Instead, the agency emphasizes a so-called requirement that teaching English and academic content must occur simultaneously—with no exceptions.

While the Castaneda court found that schools are responsible for remedying deficits caused by teaching English first, OCR's view that schools must bring every LEP student up to the average of non-LEP students is absurd. Even under OCR’s Lau Remedies guidelines (withdrawn in 1981), the office required only that schools provide former LEP students (at that time students who had achieved English dominance) with the same remedial programs provided other English-speaking students. Also, Castaneda specifies that the district's responsibility extends only to deficiencies developed during the period the students were learning English. OCR today requires that districts remedy all academic deficits, an unrealistic and unattainable requirement for most LEP students (as well as millions of America's native English-speaking students).

OCR REQUIREMENTS ARE RESTRICTIVE AND BURDENSOME

Setting Training Priorities

OCR routinely requires school systems and some states to develop costly LEP training programs for all teachers and administrators, with no evidence that this training results in improved performance of English learners. The Albuquerque Director of Special Services, who was invited to NABE by OCR to talk of the district's partnership with OCR, stated: "We have had to train every single teacher in the district, and every administrator—over 6,000 people, with 48 hours of training for each person."18. The Adams County, Colorado, school official—who also spoke of his district's successful partnership with OCR—stated that OCR required his district to train all 700 teachers and administrators. A member of the audience asked how the district accomplished this. He replied that there was no simple answer: the district used money incentives, appeals to professional pride, and other techniques. If, after all this, a teacher or administrator still balked at taking the OCR-required training, they were advised that their lack of cooperation could cost the district $6 million in federal funding, and that their names would be given to OCR as the holdouts.19. So much for voluntary compliance partnerships.

An OCR attorney, Nicole Huggins, boasted that the agency had required Utah, where the 1996-1997 LEP student population was approximately 35,000, to train 12,000 teachers for bilingual or English as a Second Language certification. She stated that, without OCR intervention, "Utah would still be discriminating against LEP students."20. To acquire the OCR-imposed certification, Utah teachers must take several courses and attend classes at night, on weekends, and during the summer. Does it make sense to retrain 12,000 teachers to serve 35,000 students, most of whom are in fact English-speaking, but are designated LEP because of the expanded federal criteria?

By and large, educators agree that teacher training is an important element of providing quality education programs. However, OCR should not be dictating teacher-training priorities for local school systems and state agencies, which have limited funds for such activities.

Advocacy through Evaluations

OCR staff regularly second-guess the decisions and expertise of local school officials, although the staff themselves have little expertise in education. In Albuquerque, OCR required a reevaluation of 11,000 special education files on the basis of its review of a small number of district files. The criteria OCR used to judge special education evaluations in Albuquerque and numerous other districts have never been published.

OCR is requiring school systems to develop ever-more sophisticated evaluation and reporting systems as part of its compliance agreements. One OCR staff member declared, "Many school districts know the basic [OCR] compliance requirements, but they are not doing evaluations of the effectiveness of their chosen services for LEP students. Are their programs helping LEP students to catch up and keep up, and are they helping them to excel when the students have the capacity to be gifted?"21. According to this staff member, OCR defines a successful program as one that closes the educational gap between LEP students and all other students. This is a legitimate educational goal, but should not be a federal civil rights requirement.

The OCR representative claimed that OCR does not require a particular format for program evaluations. However, an analysis of the agency’s letters to school districts summarizing its decisions demonstrates that OCR routinely rejects outright all school evaluation efforts that do not meet certain unpublished and undefined OCR standards.22. This approach guarantees an OCR finding of noncompliance and an opportunity for the agency to redirect the district's evaluation efforts along lines the agency believes are appropriate, without demonstrating the inappropriateness of the district's prior efforts.

The same presenter advised NABE participants that OCR examines "many" indicators of program effectiveness in a school district. She added that "if a program has been truly improved, the district will automatically come up with more LEP students identified, and more LEP students receiving services."23. Under this reasoning, schools that are doing a good job of teaching English to LEP students would be presumed to be in noncompliance because the number of LEP students receiving English would be declining.

For all its data collection efforts, OCR reported that they had little usable evaluation data from school districts showing the effectiveness of OCR's requirements in such areas as:

· Are LEP students learning English at an accelerated rate, in comparison to the old [before OCR intervention] program?

· Are LEP students demonstrating better mastery of academic content, regardless of their language of assessment?

· Are LEP students reclassified or exited at a higher or faster rate?

Undoubtedly, OCR will expand its requirements to ensure that school systems collect and report the above data and much more. For example, OCR staff also indicated that the agency is interested in such esoteric data as whether "academic mastery is consistent with diversity standards"—but they failed to explain what that phrase meant other than the "standards one would expect to see in a non-LEP population."24. While useful data about student performance are essential to the school system and state department of education, OCR staff lack the expertise to review and analyze program evaluation data, and the agency has no clear regulatory authority to impose such data-collection requirements. OCR's insistence on requiring schools to collect and report voluminous data goes well beyond the scope of the agency's mandate to ensure nondiscrimination in federally assisted educational programs.

OCR PARTNERSHIPS WITH SCHOOLS ARE NOT VOLUNTARY

Limited Partnerships, Limited Choices

OCR portrays itself as a "customer friendly" agency that allows school systems broad latitude in choosing educational programs and practices to comply voluntarily with Title VI. In fact, the agency gives schools a very narrow range of choices and directly dictates many requirements. At the NABE conference, OCR staff were more candid than usual about the agency's approach to voluntary compliance. Stefan Rosenzweig, the Director of OCR's San Francisco office who proudly emphasized to the audience that he was a bilingual advocate before joining OCR, stated flatly, "They are not voluntary . . . most of these activities are not voluntary.25. OCR's chief attorney on Lau issues, Angela Martinez, added quickly that "voluntary" means "you can voluntarily decide that you are going to comply . . .." "Partnership activities," she stated, are only "voluntary to the extent that [they] may minimize the investigation."26. The attorneys' statements attest to OCR's practice of coercing schools into signing prescriptive agreements rather than undergoing lengthy investigations by agency staff.

OCR points to its negotiating successes with school systems as evidence of the agency's reasonableness, when, in fact, it is simply evidence of the agency's power. School systems reviewed by OCR have two options: (1) offer minimal cooperation and force the agency to prove its findings of non-compliance or (2) accept the agency's offer of "partnership" and recast the schools' program to meet OCR's requirements. Most school superintendents facing this choice will follow the path of least resistance. Challenging OCR jeopardizes all federal financial assistance, guarantees mounting legal expenses, and threatens good relationships with national origin communities. In the past 10 years, only two school systems—the Denver Public Schools, and the San Juan, Utah, Public Schools—have chosen such a path. Both paid dearly for not embracing OCR's brand of bilingual education, and while San Juan is still seeking a settlement to avoid further litigation costs, Denver has been allowed by a federal judge to implement the changes it wanted to its bilingual program.

Secretary of Education Richard Riley describes OCR's partnership approach as one that minimizes litigation. However, most school superintendents and local school boards will do almost anything that the federal government tells them to avoid litigation, as long as it does not seriously destabilize the community and cost them their jobs. Bilingual directors and other federally supported staff within schools are often the biggest advocates for OCR intervention. Many welcome an OCR review as a way of forcing the school to give higher priority to bilingual education programs. Several NABE participants at the OCR presentations were clamoring for OCR to visit their districts. A consultant for Providence, Rhode Island, Public Schools summed it up for conference attendees by pointing out that school superintendents and school lawyers sometimes want to take a harder line with OCR. Reading correctly the mood of his pro-bilingual audience, he viewed such opposition to OCR as negative and advised bilingual directors to be "the advocates for collaborative relationships with OCR."27.

The message is very clear from the perspective of local bilingual staffs who have found a strong federal ally to assist in expanding their programs: opposing OCR is not in the best interests of school districts.

Social Engineering

An OCR review raises school personnel's awareness of and interest in programs for English learners, and this may result in some desirable changes. But too much of what the agency is now doing comes under the heading of social engineering rather than civil rights enforcement, and the negative fallout from OCR interventions often far outweighs any positive results.

At the NABE conference, OCR introduced the Providence, Rhode Island, Public Schools as one of its "partnership" districts. The Providence director who spoke was obviously pleased that her district is now in compliance with OCR requirements, and she hopes it will remain so. However, in recounting her experiences with OCR, she brought to surface many of the negative aspects of OCR's activities discussed here.

She stated that OCR reviewed the district's program for LEP students in October 1995 and required the district to adopt a resolution agreement that she had played little part in negotiating. A consultant working with the district described the OCR-imposed agreement as "quite demanding and not a wonderfully collaborative document." Furthermore, the agreement completely ignored a comprehensive district program for LEP students that had been in place and operating prior to OCR's 1995 review. This program, developed in 1992 with substantial input from the language minority community, had, according to the director, "already identified these [OCR] issues, and [the district] was in the process of implementing a corrective action on our own."28.

To attempt to persuade OCR of the validity of the program, the director traveled to Boston in May 1996. In recounting her experience, she stated:

We only went up to Boston once, because … we were really left out of the resolution agreement. It was handed to me. And when we looked at it we realized there was no way we could ever accomplish what was said on our behalf and we felt it incumbent upon us to show that we had already a program in place to remedy these inequities and that we needed to show them [OCR] that … It was our job as educators to teach them our language set. That was the biggest challenge. It was like they have a different perspective. It was very legal. And our job was to bring the legal and our vision together. Once that was achieved, it was smooth sailing."29.

But apparently the smooth sailing was achieved only after a lot of hard work on the part of school officials. The director noted in retrospect that:

. . . it was a very challenging time for all of us because we realized at that point that the language set that schools use and the language set that is used by the Office for Civil Rights sometimes can be perceived as a disconnect in ideologies.30.

To their credit, the Providence bilingual program staff were ultimately successful in redirecting OCR's intervention toward programs with which they felt comfortable. But what if they had not been so skilled in their efforts, or what if they had encountered OCR staff who were not so accommodating? And are all the changes brought about by OCR good for the students?

The central question, however, is: Why did Providence school officials have to go to so much trouble to convince federal agency staff of the viability of their program? Providence was fortunate that it had a director who kept pushing OCR to accept what the district was already doing and hired a consultant whose duties were to help the school district work through OCR demands. The Providence consultant also spoke at the NABE session. He introduced himself as someone who "works with schools to help them manage OCR agreements."31. (Other districts at the conference had also found it necessary to hire consultants to help them manage OCR demands.) The Providence consultant had this to say about the relationship with OCR:

What I observed in Providence was this tendency on the part of the [District staff] to try to find collaboration . . . . It started out as a potentially contentious relationship and, because of the attitude and approach of the department in Providence, the relationship became collaborative . . . . It was a win/win situation after the relationship became collaborative. I have to say that I have worked in a number of other school districts where the relationship between the district and the Office for Civil Rights has not always been collaborative and, in part, there are a number of features that need to be in place to make it collaborative . . . but, I don’t think that happens naturally. That’s not part of the natural role/relationship between the Office for Civil Rights and school districts. It’s more natural to be oppositional . . . .

The director's final statement at her presentation probably sums up the feelings of a lot of districts that have been pushed into "partnerships" with OCR:

I don’t ever want to give you the impression that this has been easy for us. It has been very, very difficult. I mean we have all the plans, we have the action plans, everything has been well articulated. But to drive that process in a district is very, very different and very difficult. It’s not an easy road. But the fact that we have a vision and we know our actions and our interaction with OCR—that helps us achieve our goals. But it’s not easy and I know everyone knows that.32.

No doubt, Providence staff and staff from other districts who presented at NABE feel generally positive toward OCR's compliance review approach now that they are all in compliance. Of course, school districts that are unhappy with OCR were not invited to speak. Putting all that aside, the central issue is not simply whether OCR imposes its requirements on schools in a "friendly" manner, but whether such requirements should be imposed at all. Should OCR have the power to force schools to follow detailed procedures for testing students, including those who are English proficient? Do the many requirements OCR imposes on schools result in English learners attaining higher educational levels than would otherwise be achieved? Why is a civil rights law enforcement agency assuming an advocate's role and directing local educational decisions and choices? Where is the regulation that delineates OCR requirements? OCR's heavy-handed tactics force schools to assume the burden of educating OCR about their programs. After being put through the wringer by OCR, the Providence Public Schools continued to operate programs that were in place before OCR conducted its review.

These issues should concern Secretary Riley, and the 106th Congress should consider them in drafting legislation related to federal programs for English learners.

OCR VERSUS THE DEPARTMENT OF EDUCATION ORGANIZATION ACT

OCR's aggressive efforts to establish a national curriculum framework for English learners and to impose that framework on school systems across the country may violate portions of the Department of Education Organization Act. When the Department was established in 1980, Congress wrote into the legislation specific prohibitions designed to prevent agents of the Department from becoming involved in local educational decisions:

No provision of a program administered by the Secretary or by any other officer of the Department shall be construed to authorize the Secretary or any such officer to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, over any accrediting agency or association, or over the selection or content of library resources, textbooks, or other instructional materials by any educational institution or school system, except to the extent authorized by law.33.

In 1980, when OCR attempted to issue a regulation requiring bilingual education, it claimed it was only carrying out the civil rights laws and thus exempted from this requirement. With the withdrawal of the proposed regulation, OCR's defense was never tested. Incredibly, the issue has not been raised in recent years. Now, however, the agency has structured its relationships with school systems and imposed requirements on every facet of local schools' operations, raising serious questions about whether the agency is, in fact, interfering in curriculum matters, one district at a time. (OCR may also be crossing the line in its reviews of other issues under Title VI, such as ability grouping, gifted and talented programs, and special education.)

OCR IS NOT WELL-MANAGED

OCR presentations at NABE 34. and other information in OCR's 1998 Annual Report to Congress 35. give the impression that the agency is seriously understaffed and has an overwhelming workload. This is a gross distortion of the facts. OCR is telling Congress only part of the story, omitting information that would give a completely different view of the agency's real workload and shaky management practices. Congress should consider the following facts in determining OCR's actual workload and budgetary and staffing needs.

CONCLUSION

OCR continues to play its self-appointed role as the nation's nanny, telling schools how they should teach English learners and persistently raising the bar to keep schools in non-compliance with the agency's interpretations of the law. It is abusing the serious punitive powers it wields as a federal civil rights agency. Congress should not permit OCR’s advocacy and enforcement of intrusive requirements with increasingly dubious pedagogical value—especially since they have not been tested through the regulatory process and are flatly at odds with the decisions of the federal courts.

 

ENDNOTES

 1. OCR Proactive Activities: Ensuring Equal Access to Education panel presentation at the NABE 28th Annual International Bilingual/Multicultural Education Conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-108A, side 2.

2. FEDERAL CONTROL OUT OF CONTROL: THE OFFICE FOR CIVIL RIGHTS' HIDDEN POLICIES ON BILINGUAL EDUCATION, November 1998, available at www.ceousa.org. A condensed version of this report was published in the February 15, 1999, Weekly Standard ("Bilingual Bullying" by Roger Clegg and Jim Littlejohn).

3. OCR Proactive Activities: Ensuring Equal Access to Education panel presentation at the NABE Conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-108A, side 2.

4. Fulfilling the Promise: Equity and Educational Excellence through the Reauthorization of the Bilingual Education Act in the 106th Congress, OBEMLA presentation at NABE Conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording NABE99-FS04, side1.

5. The Office for Civil Rights: What Have We Done and Where Are We Going? panel presentation at NABE Conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording NABE99-059A, side 1.

6. A Right-Sized OCR, The Office for Civil Rights' Annual Report to Congress, Fiscal Year 1998.

7. The Office for Civil Rights: What Have We Done and Where Are We Going? OCR panel presentation at NABE Conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-059A, side 1.

8. Ibid. and OCR Proactive Activities:Ensuring Equal Access to Education panel presentation at the NABE Conference, January 28, 1999, CopyCats (Dallas, Texas), audio recording, NABE99-108A, side 2.

9. OCR reviews on other issues are equally suspect: e.g., gifted and talented programs, ability grouping, and special education assignments. Few OCR investigations into these matters uncover sufficient evidence to prove a violation of Title VI of the Civil Rights Act of 1964. OCR assumes a violation exists based on scanty data, and goes straight to a negotiated agreement. See FEDERAL CONTROL OUT OF CONTROL: THE OFFICE FOR CIVIL RIGHTS' HIDDEN POLICIES ON BILINGUAL EDUCATION, November 1998, available at www. ceousa.org.

10. Ibid. and OCR Proactive Activities:Ensuring Equal Access to Education panel presentation at the NABE Conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-108A, side 1.

11. Angela Martinez, OCR attorney in charge of national Lau policy issues, stated, "From the perspective of a lot of us here, we would like to be there [in a district] forever. But, we must consider going to other districts." OCR Proactive Activities: Ensuring Equal Access to Education panel presentation at the NABE Conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-108A, side 2.

12. The Office for Civil Rights: What Have We Done and Where Are We Going? panel presentation at NABE Conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-059A, side 1.

13. OCR Proactive Activities:Ensuring Equal Access to Education panel presentation at the NABE Conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-108A, side 2.

14. Ibid.

15. One OCR staff member said that some states require students to pass a mastery test in English in order to graduate. She remarked that an LEP student "can't do this — by definition." This is typical of the OCR mindset that favors instruction and testing in Spanish or other languages over teaching students English to enable them to master tests in English. OCR also completely overlooks the practical issues related to teaching and assessing students in a language other than English. For example, while LEP students may or may not know enough English to pass a graduation test in English, they are less likely to know enough Spanish to pass the test in Spanish, assuming such a test were even available.

16. FEDERAL CONTROL OUT OF CONTROL: THE OFFICE FOR CIVIL RIGHTS' HIDDEN POLICIES ON BILINGUAL EDUCATION, November 1998, available at www.ceousa.org.

17. Valeria G. v. Pete Wilson, No. C-98-2252- Cal, July15, 1998.

18. The Office for Civil Rights: What We Have Done and Where We Are Going? Panel presentation at the NABE conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-059B, side 1.

19. Compliance versus Commitment: One District's Partnership with the Office for Civil Rights panel presentation at the NABE conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-015, side 2.

20. OCR Proactive Activities:Ensuring Equal Access to Education panel presentation at the NABE Conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording NABE99-108A, side 2.

21. The Office for Civil Rights: What We Have Done and Where We Are Going? Panel presentation at the NABE conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-059A, side 1. (The OCR staff member was identified only as "Peggy," an investigator in Region VIII, Denver.)

22. FEDERAL CONTROL OUT OF CONTROL: THE OFFICE FOR CIVIL RIGHTS' HIDDEN POLICIES ON BILINGUAL EDUCATION, November 1998, available at ceousa.org.

23. The Office for Civil Rights: What We Have Done and Where We Are Going? Panel presentation at the NABE conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-059A, side 1.

24. Ibid., side 2.

25. OCR Proactive Activities:Ensuring Equal Access to Education panel presentation at the NABE Conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-108B, side 1.

26. Ibid.

27. So You Had a Visit from OCR, F. Mossberg, K. Squire, and J. Verre, presentation at the NABE Conference, January 29, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-102, side 2.

28. Ibid., sides 1 and 2.

29. Ibid., side 1.

30. Ibid.

31. Ibid., side 2.

32. Ibid.

33. U.S.C., Title 20, Section 3403(b).

34. In one presentation, the San Francisco OCR Director told the NABE crowd, "We are certainly understaffed. Tell your Congress-people." OCR Proactive Activities:Ensuring Equal Access to Education panel presentation at the NABE Conference, January 28, 1999, CopyCats (Dallas, Texas) audio recording, NABE99-108A, side 2.

35. The Office for Civil Rights' Annual Report to Congress Fiscal Year 1998.

36. This estimate is based on my 28 years of experience in OCR, including two years as a Regional Director. While some staff specialize in making mountains out of molehills, at least 50 percent of OCR complaints can be designated as "easy" to close. I do not have access to current complaint data, but based on past years, 20 to 30 percent of the remaining cases can be resolved through routine investigative work.

* Jim Littlejohn worked in the Office for Civil Rights at the Department of Education for 28 years. From 1981 to 1993 he served as Policy Director in OCR's Washington, D.C. headquarters. He retired from OCR in 1996. He is currently working as a consultant to school districts around the country and in several court cases involving bilingual education.

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