Testimony:

     SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

     COMMITTEE ON EDUCATION AND THE WORKFORCE

     U.S. HOUSE OF REPRESENTATIVES

     HEARING ON THE REVIEW AND OVERSIGHT OF THE DEPARTMENT OF

     EDUCATION'S

     OFFICE FOR CIVIL RIGHTS (OCR)

     OPENING STATEMENT OF CHAIRMAN PETE HOEKSTRA (R-MI)

     DELIVERED 2:00 PM, JUNE 22, 1999 IN ROOM 2175 OF THE

     RAYBURN HOUSE OFFICE BUILDING

     Good afternoon ladies and gentlemen. We are here today to review the policies and activities of the Department of Education's Office for Civil Rights - also known as OCR.

     OCR is charged with the important task of enforcing federal anti discrimination laws in educational institutions. These statutes were designed by Congress to ensure that students receive equal treatment under the law and are not discriminated against because of their race, color, national origin, sex or disability. Congress allocated to OCR a budget of $66 million to carry out this task during the current fiscal year.

     We in Congress, however, have not undertaken comprehensive oversight of OCR to determine how effectively the agency is carrying out its mission under the current Administration. This hearing is intended to help remedy that -- and to ensure that OCR is protecting the rights of all students.

     What most concerns some members of this Subcommittee is the increasing evidence that OCR involvement sometimes produces negative consequences. I'm sure this is not intentional. But if it is happening, we need to be aware of it.

     Today we will discuss three specific areas in which OCR involvement is affecting individuals and educational institutions.

     One of these areas is intercollegiate athletics. Title IX of the Educational Amendments of 1972 prohibits discrimination on the basis of sex in educational institutions that receive federal funds. The statute is written in plain and concise language. It is a common-sense law. But OCR's implementation of the law is puzzling to many. Colleges are strongly encouraged by OCR policy to have an equal number of men and women competing on varsity athletic teams - even if men and women on campus do not share an equal interest in competing.

     In fact, some schools drop men's sports in order to attain the gender parity OCR holds up as an ideal. For instance, one-third of all intercollegiate wrestling programs were eliminated in the past decade. I doubt this is due to a lack of interest: Participation in high school wrestling has remained stable.

     Overall, according to a GAO study that is just being released, the proportion of both men and women undergraduates participating in athletics decreased between 1986 and 1996. In other words, both male and female college students are less likely to participate in athletics than they were ten years ago. Thus, while Title IX may have contributed to a reduction in the number of men's sports, it has apparently failed to instigate an increase in women's athletic participation.

     OCR is also deeply involved in the issue of bilingual education. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color or national origin. One form of national origin discrimination, according to OCR, is discrimination against students with limited English proficiency. A Supreme Court decision has held that schools must help such students either by teaching English or by first instructing them in their native languages. It was left to schools, however, to choose a mode of instruction. Some schools choose to use bilingual education. Many, however, do not.

     Some school districts complain that OCR favors bilingual education and pressures them to use an approach that does not work. In extreme cases, this approach can lead to an English speaking child being placed in a bilingual program simply because the child has a Spanish surname.

     The other issue on the agenda today is a draft resource guide on discrimination in testing that OCR distributed last month. This guide could have unintended consequences on both students and schools. The thrust of the document seems to contradict the Administration's stated priority of increasing accountability in the schools. Although the guide intends to prevent the improper use of tests, it may actually end up preventing the implementation of good tests.

     Last week, a member of the Massachusetts Board of Education testified to the U.S. Commission on Civil Rights that the new OCR guide would instill a fear of litigation in state education officials that could hold up the implementation of new high stakes exams in Massachusetts. Several other states, such as Texas and Virginia, are also in the midst of instituting new high stakes exams that will identify gaps in educational achievement. When tests identify performance gaps between minority students and others, these gaps can be addresses. For instance the performance gap between black and white students on Texas' statewide accountability exam has been reduced by 30% since 1994.

     1 hope we can have a constructive dialogue this afternoon about these difficult issues of testing, bilingual education and Title IX. Perhaps a healthy and open debate will cause OCR and the Department of Education to reexamine whether or not their enforcement policies are protecting students in the best way possible.

     June 22, 1999

     DEPARTMENT OF EDUCATION

     Statement by

     Norma V. Cantu

     Assistant Secretary for Civil Rights

     Mr.. Chairman and Members of the Committee:

     Thank you for inviting me to appear before you today and providing the opportunity to describe how the Office for Civil Rights furthers the mission of the Department of Education: To ensure equal access to education and promote educational excellence throughout the nation. Before I address the specific questions you asked, I would like to explain how OCR does business and how our new way of doing business provides flexibility and promotes educational soundness.

     INTRODUCTION

     The Office for Civil Rights' mission, which is fully aligned with that of the Department, is to ensure equal access to a high quality education for all students through the enforcement of civil rights. OCR is responsible for enforcing five federal civil rights statutes that prohibit discrimination on the basis of race, color, national origin, sex, disability, and age. OCR carries out its enforcement responsibilities by resolving the approximately 5,000 complaints we receive each year and monitoring resolution agreements to ensure that they are fully implemented. We also provide flexibility to states by building collaboration with state and local education agencies, and creating partnerships with parents, students, and other stakeholders to prevent civil rights problems and to stop illegal discrimination.

     There is wide consensus that excellence in education is the critical issue facing the nation. We know that to retain our strength in the new world economy we must focus on high academic standards for all our children. Devoting significant resources to programs that strengthen high- performance education is critical, but it would be a devastating waste of human capital if all of our nation's students are not permitted to benefit from these reform efforts. To accomplish our national educational goals, excellence and equity must go hand-in-hand.

     To ensure equal access to high-quality education for every student, OCR works with schools, colleges, and parent and community groups to achieve common goals. We believe that OCR has made a real difference in the lives of students and can count millions of students whose educational lives have been improved as a result of OCR's work.

     OCR's overarching goal is to ensure access to high standards and excellence for all students. To accomplish this goal, OCR works with school districts, colleges, and universities to assist them in avoiding and eliminating discriminatory educational practices; empowers parents and students to learn to resolve problems of securing equal access to quality education; and obtains results by the efficient management of civil rights compliance activities. We incorporate these objectives and hold ourselves accountable for how we do business in four ways.

     First, in fiscal year 1998, OCR had a positive impact on the educational benefits of nearly 6 million students. We have achieved much of this impact through collaborative efforts with states and state systems of education. For example, the Office for Civil Rights and the Commonwealth of Pennsylvania entered into a partnership agreement to resolve a higher education desegregation case that began in 1969. The commitments developed by the partnership are an expression of the Commonwealth's continued and substantial effort to enhance the opportunities for African Americans to participate in and benefit from higher education in Pennsylvania and to increase the opportunity for access, retention, graduation, and advancement into graduate and professional education programs in the Commonwealth. (Letter from Pennsylvania Governor Tom Ridge dated April 26, 1999). We anticipate that the successful implementation of these commitments will be effective in expanding access to higher education, in revitalizing our country's oldest historically black university, Cheyney University, and in increasing the retention and graduation of minority students in Pennsylvania, consistent with the goals of our partnership. The president of Cheyney has stated that the partnership is "a perfect fit for the direction Cheyney needs to go to fulfill its vision for the future." (Philadelphia Inquirer, June 4, 1999).

     Another example of successful collaboration is our work over the past several years with the Michigan Department of Education (MDE.) MDE and OCR have worked collaboratively to resolve compliance issues identified within Michigan regarding educational services to limited-English proficient (LEP) students. Some of the excellent partnership results include: an English-as-a-Second Language (ESL) endorsement for certified teachers where no such endorsement was available previously; a plan to increase the number of qualified teachers providing instruction to LEP students; as well as collection of data by MDE from school districts regarding LEP students' academic performance and access to core content, and information about programs designed to teach LEP students English. In addition, relative to MDE's school assessment and improvement programs, MDE will disaggregate the results for LEP students and promote appropriate responses to the needs of LEP students based on those results. These activities will have an impact on approximately 50,000 LEP students in Michigan.

     In another proactive effort, OCR worked with the California Community College System to help students with visual impairments. It is important to note that California has the nation's largest community college system in the nation, serving more than one million students. Yet, students who were visually impaired were denied access to print materials and computer-based information that was essential to their coursework. OCR, through its work with administrators of these 110 community colleges, improved access to necessary educational information for thousands of already-enrolled visually impaired students.

     Secondly, we have worked to ensure that recipients of federal financial assistance (school districts, colleges and universities, state education agencies) change policies, procedures, or practices to comply with federal civil rights law. Through collaboration and partnership, we have been able to facilitate understanding of civil rights obligations, bring change, and deter discrimination. We believe that these changes result in fewer 44copy cat" complaints being filed. The civil rights laws enforced by OCR cover the nation's public schools, colleges and universities, proprietary organizations, and public libraries, museums and vocational rehabilitation agencies.

     Thirdly, we measure the number of successful partnerships with parents that lead to civil rights compliance. If we are to succeed in ensuring access to high standards and excellence for all students, we must find new ways for involving and empowering parents. One such example of successful partnership with parents is a proactive effort, initiated by OCR's New York office, to empower the parents of the 1. I million students enrolled in New York City Schools. In FY 1999, OCR's New York office began a partnership with several parent groups to provide training forums and workshops for parents throughout New York City. The training focuses on underserved communities in a special effort to reach minority and LEP parents. OCR provided critical information about special education rights, minority students and special education, and English language learners and special education. Simultaneous translation equipment was used, which greatly facilitated communication with the approximately one-third of the parents who spoke Spanish.

     During the past four years, the Chicago Office has been engaged in an initiative premised on the belief that parental involvement is essential to achieving lasting positive changes within a school district. OCR's traditional approach is to obtain a school district's written agreement to remedy any compliance problems identified during case resolution and then to monitor the district's compliance with the agreement over a specified period of time. Active involvement of parents concerned about their children's education can ensure that the positive actions implemented by a school district continue once OCR is no longer involved.

     Finally, we are efficient. Eighty percent of complaints are resolved within 180 days of receipt by OCR. Even in the face of an increasing caseload and increased monitoring, we are meeting this goal.

     In fact, GAO recently issued a Report Letter analyzing our complaint work. The report, titled "Resolving Discrimination Complaints Has Improved With New Processing System," is attached at the end of this testimony at Tab A. The GAO found that OCR has improved its complaint resolution process in two major ways. First, it replaced a process that investigated complaints with a more flexible system that focuses on resolving complaints as soon as possible. Also, OCR's hierarchical structure for investigating complaints was replaced with case resolution teams. Second, OCR improved or created several systems to provide its staff with information needed to conduct and report on complaint investigations. For example, OCR has established internal networks around specific issue areas. The issue networks serve as an organizational bridge between OCR staff who are doing the same job and encountering the same questions across the country. The issue networks provide a forum for building knowledge and expertise around each issue area. They also serve to identify best practices, refine our case resolution tools and approaches, ensure consistency in applying legal standards and, most importantly, result in increased access to quality education for students. In addition, we have focused on improving existing processes to maximize the effectiveness of our resolutions. For example, OCR has put increased emphasis and focus on the monitoring of resolution agreements. Our most well crafted resolution agreements will do little good unless we monitor their implementation to ensure that students in fact have received educational benefits. The GAO report concludes:

     "During the fiscal year 1993-1997 period, OCR showed improvement in three principal performance indicators: the time to process a complaint, the number of complaints processed annually, and average backlog of unprocessed complaints at year end."

     Our internal culture, our fundamental approach to case resolution, has changed. We realize we cannot prevent and eliminate discrimination on our own. We must work with a variety of stakeholders to accomplish our mission - to prevent as well as to correct violations of the law. OCR places great emphasis on collaboration to achieve results. Cooperation and communication among people with mutual interests - students, parents, community groups, state education agencies, and schools and colleges -- is the key to our continued success. It is because of this emphasis on collaboration that OCR has been so effective in obtaining voluntary resolution agreements to correct violations without having to resort to the ultimate remedy of fund termination.

     QUESTIONS PRESENTED I appreciate the opportunity to address your questions regarding educational testing, gender equity in intercollegiate athletics, and meaningful access to educational opportunity for LEP students. Our policy guidance, compliance activities, and collaborative efforts in these three areas exemplify the aspects of partnership and collaboration that I mentioned earlier in my testimony. In addition, our work in these three areas illustrates how OCR's efforts are not only consistent with, but also serve to advance, the broader educational policies of the Administration, Congress, and the states, as well as the wishes and hopes of our nation's parents and students.

     I. Educational Testing What are the effects of OCR's educational testing policy? Describe how these policies and activities are derived from the Federal statutes OCR is charged with enforcing and the extent to which they are consistent with the broader education policies of the Administration.

     OCR recognizes that tests are critical components of educational strategies designed to promote excellence for all students. OCR's resolutions of claims of discrimination recognize most clearly that the solution to concerns regarding discrimination is not to eliminate the very tools that help provide a meaningful picture of the educational opportunities provided to students. Rather, OCR's approach is to provide guidance to policy makers and educators to ensure that tests are used in ways that are consistent with the civil rights laws; that is, in ways that provide valid and reliable information and are consistent with their design and purpose.

     The improper use of a high-stakes test can violate civil rights laws that prohibit discrimination against students on the basis of their race, national origin, sex or disability. When tests are used to make educational decisions, they should be used to measure students' abilities, knowledge, or qualifications regardless of race, national origin, sex or disability.

     This Administration recognizes and encourages states and districts to adopt stronger accountability systems that include expanded use of testing to improve the performance of students and promote high standards. Contrary to press reports, OCR's effort to develop a guide is not intended to undermine those developments. On the contrary, it is a responsible effort to help states and school districts select and use tests in the right way and to avoid their discriminatory and inappropriate use. This effort is consistent with our purpose of promoting high standards and equity so that all students can achieve an excellent education. Accordingly, OCR's draft Testing Resource Guide was developed in response to a need for guidance, especially at the elementary and secondary level. The draft guide is designed to combine, in one document, a description of existing legal and test measurement principles to assist policy makers and educators in making important decisions about when and how to use tests for making educational decisions that have significant consequences for students. As the draft Testing Resource Guide points out, test use cannot be examined in a vacuum. In addressing the issue of whether a test has been used in a discriminatory manner, the draft Testing Resource Guide describes long- standing law and educational testing principles relevant to making important decisions regarding benefits for students. The foundations for OCR's approach in addressing discriminatory use of educational tests is that legal standards must be informed by both professional psychometric standards as well as sound educational judgement.

     OCR's draft Testing Resource Guide breaks no new legal ground. It explains principles that are clearly embodied in Title VI and Title IX regulations. Federal legal standards confirm that the guarantee under Federal law is for equal opportunity - not equal results. The Title VI and Title IX regulations prohibit recipients from using criteria or practices that have a disparate impact on the basis of race, color, national origin or sex. However, evidence of statistically significant disparity alone does not establish that the test violates Title VI or Title IX Rather, disparate impact forms the basis for further inquiry as to whether the use of the test is educationally necessary and whether there are practicable alternatives with less discriminatory impact that are equally effective in furthering the educational necessity.

     OCR has developed a process for obtaining wide input on the draft Testing Resource Guide. We have consulted with over thirty teacher, administrator, policy maker, business, advocacy, and test publisher organizations to solicit input on the draft Testing Resource Guide. Once the draft Testing Resource Guide has been refined in light of their comments, OCR will recirculate the draft Testing Resource Guide to those same groups just prior to our submission of the document to the National Academy of Sciences Board on Testing and Assessment, for their final review. Thereafter, we anticipate making a draft available to the public for review.

     In sum, OCR's legal approach to discriminatory use of educational tests is consistent with the broader objectives of educational reform. Educational reform recognizes that all students need an educational system that both expects high performance and offers real and meaningful educational opportunities. Nondiscrimination in testing and assessment is essential to ensuring that equal opportunities for educational excellence are provided regardless of race, national origin, sex, or disability. The effect of OCR's activities in the area of educational testing is to ensure real educational benefits for students.,

     OCR has investigated many cases that allege discrimination in the use of tests. At times, our resolutions have focused on states' obligations to ensure that all students are provided the instruction necessary to meet a high- stakes test, such as a statewide proficiency test. In those cases, our agreements have required states to use their accountability systems to ensure that school districts provide the instruction necessary, including remedial or summer school programs, to give all students the opportunity to meet the statewide standards. For example, OCR and the State of Texas have been working together to resolve a complaint alleging that the use of the Texas Assessment of Academic Skills (TAAS) was discriminatory on the basis of race and national origin. Our case resolution in Texas permitted continued use of the TAAS. The agreement focuses on the State's efforts to provide appropriate interventions and instruction in order to improve the passage rates of minority students on the TAAS.

     We also have resolved cases in which IQ tests were used as the sole criterion or gatekeeper for access into gifted and talented programs, despite the fact that such tests were not intended by their publishers to be used in such a manner. In these cases, OCR worked with states, districts and schools to find additional methods for identifying gifted students, such as portfolios of work, grade point averages, teacher recommendations, and achievement test data, while ensuring that the rigorous nature of the underlying program was left intact. Thus, through collaboration with educators and school administrators, we are supporting the proper and nondiscriminatory use of tests to advance high standards and equal opportunity.

     H.Gender Equity in Intercollegiate Athletics What are the effects of OCR's u gender eQui1y in intercollegiate athletics 12olicy? Describe how these policies and activities are derived from the Federal statutes OCR is charted with enforcing and the extent to which they are consistent with the broader education policies of the Administration.

     OCR is responsible for enforcing Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex in education programs receiving federal financial assistance. Athletics are considered an integral part of an institution's program and are therefore specifically covered by OCR's regulation implementing Title IX. In order to clarify the athletic requirements contained in the Title IX regulation, a Policy Interpretation was issued in 1979 to provide colleges and universities with more guidance on how to comply with the law.

     Several years ago, I convened a number of focus groups to discuss discrimination in athletics, and in January 16, 1996, 1 issued a detailed guidance document on the subject of equitable participation opportunities, entitled "Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test" (The Clarification). This Clarification addresses the interpretation of each of the three options for compliance, commonly referred to as the "three-part test." These options are used to determine whether students of both sexes are provided nondiscriminatory opportunities to participate in athletics. As an initial matter, the Clarification reaffirms that no quotas would be required. Further, we emphasize that there are three alternative approaches whereby a school may comply with the requirement to provide nondiscriminatory participation opportunities for individuals of both sexes. A college or school may comply by applying any of the three approaches: 1) substantial proportionality between the enrollment and participation rates of the underrepresented sex; 2) a history and continuing practice of program expansion for the underrepresented sex; or, 3) full and effective accommodation of the interests and abilities of the underrepresented sex. This compliance standard is part of a larger analytical framework discussed in the 1979 Policy Interpretation, which has received the bipartisan support of Congress over the years. In the Clarification, OCR also encouraged colleges to avoid the cutting of men sports as a means for coming into compliance with the participation test.

     In July 1998, OCR issued two letters that discussed and clarified the 1979 Policy Interpretation as it relates to the funding of athletic scholarships for men's and women's intercollegiate athletic programs. The letters, intended for all schools that award scholarships in intercollegiate athletics programs, clarify how scholarship dollars must be awarded to men's and women's athletic programs in "substantially equal amounts," proportionate to the participation rate of male and female athletes. Wide dissemination of these letters and posting them on OCR's web site helps ensure that intercollegiate athletic scholarships are awarded with an understanding of the requirements and will promote fairer distribution of scholarship funds.

     During the 1996-97 academic year, more than 329,000 student athletes (200,627 men and 128,209 women) participated in intercollegiate athletics at National Collegiate Athletic Association institutions. According to NCAA's own data, this figure represents the highest number of total student/athletes ever.

     More than 25 years after the passage of Title IX, women college athletes, as a whole, still receive fewer athletic opportunities and less support from their institutions than male athletes. Although men athletes represent about 60% of the student-athletes nationwide, they receive more than 76% of college sports' operating budgets, more than 82% of college recruiting money, and about 72% of athletic scholarships.

     It is indisputable that athletic opportunities provide access to higher education. In addition, participation in athletic programs presents important educational experiences that contribute to the growth of participants' leadership and team building skills.

     OCR's efforts in this area are consistent with the Administration's goals and policies. Moreover, consistent with Administration policy, OCR's compliance criteria give institutions flexible alternatives for complying with the law.

     The effect of OCR's activities in the area of gender equi1y in intercolle2iate athletics is to yield real education benefits for real students.

     OCR's compliance efforts in this area have yielded positive results with respect to access to educational benefits for all students, regardless of sex. For example, OCR entered into an agreement with a large midwestern university that resulted in the university's decision to elevate three of its existing women's club teams to the intercollegiate level. Upon full implementation of the resolution agreement, the university will have increased the number of women participating in its intercollegiate athletics program by as much as 40% without cutting any men's teams. This type of resolution is consistent with Title IX, which does not require the elimination of teams but rather requires equal opportunity.

     OCR resolutions of cases alleging gender discrimination in the award of athletic financial assistance also have yielded positive results that will increase access to educational opportunities for hundreds of students. In fact, in 16 out of the 25 complaints filed by the National Women's Law Center this past year, OCR has obtained resolution agreements that will result in hundreds of thousands of scholarship dollars being made available for women athletes who previously have been denied those monetary benefits.

     III. Meaningful Access to Educational Opportunity for Limited English Proficient (LEP) Students What are the effects of OCR's "bilingual education" testing policy? Describe how these policies and activities are derived from the Federal statutes OCR is charted with enforcing and the extent to which they are consistent with the broader education policies of the Administration.

     You have requested information about OCR's policy relative to "bilingual education." Pursuant to Title VI of the Civil Rights Act, OCR has jurisdiction over issues involving access to educational opportunities for language minority LEP students. OCR does not, however, enforce any law, regulation or policy that requires, prohibits or encourages the use of bilingual education programs as opposed to other educational approaches to meet the needs of LEP students. Bilingual education is one of several programs a school district could choose to implement to fulfill its obligation under Title VI.

     OCR is responsible for enforcing Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color or national origin. In Lau v. Nichols, the Supreme Court affirmed the Department of Education Memorandum of May 25, 1970, that directed school districts to take steps to help LEP students overcome language barriers and to ensure that they can participate meaningfully in the district's educational programs.

     Neither Title VI nor OCR requires or advocates a particular program of instruction for LEP students. However, federal law does require that programs to educate children with limited English proficiency be: based on sound educational theory; adequately supported so that the program has a realistic chance of success (with adequate and effective staff and resources); and periodically evaluated and revised, if necessary. These requirements are set forth in long-standing OCR policy which is based on the analytical framework formulated by the Fifth Circuit in the landmark case of Castarieda v. Pickard. Both the Lau and Castarieda cases support OCR policy that provides schools districts with flexibility in selecting educational program models that meet Title VI obligations.

     Other areas addressed by OCR policy' include investigative guidance for determining whether a school district is meeting its Title VI obligations to: identify and evaluate students who may be in need of English language services; monitor and appropriately address the needs of those students as to whether they are in fact learning English as well as how they are performing academically; ensure that qualified teachers and appropriate resources are being provided to support the success of the program model chosen by the district; and exit students from the alternative language program once they are proficient enough in English to participate meaningfully in the regular program. In addition, where the district has chosen to temporarily emphasize language instruction over academic instruction, districts must follow up to ensure that students are provided with compensatory and supplemental education to address the deficiencies in other content areas that may have occurred during this period. All of these areas of compliance with Title VI, as identified in OCR policy documents, reflect longstanding Federal case law.

     OCR policy on access to educational opportunity for LEP students is consistent with sound education policies. OCR policy requires that districts provide LEP students meaningful access to the educational program, including district programs that emphasize high standards. OCR policy, clearly supported by Federal case law, provides great flexibility to districts regarding how they will fulfill that obligation. The Administration's broader educational policy is in fact to support innovative and high quality educational programs designed to raise academic standards so that all of our nation's students may reach their fullest potential and be equipped to meet the global economic and social challenges of the next millennium.

     What are the consequences when schools do not provide LEP students with services to address their lack of proficiency in English? They are consequences we cannot afford as a nation: exclusion of LEP students from the educational program; repeated failure in the classroom, falling behind in grade, and dropping out of school; inappropriate placement of LEP students in special education classes; and foreclosed access to high track courses, gifted and talented programs, and our national high standards education reform efforts.

     OCR's work in this area has had a profound impact on millions of students' access to a meaningful education. For example, in 1993 OCR initiated a compliance review of the Farmington Public Schools in Michigan regarding whether the district was providing access to meaningful participation in the district's educational program to limited English proficient students. As a result of the review, the District developed a plan to promote equity and. excellence in the District's education program for LEP students. The implementation of the agreement has increased the English language proficiency of LEP students and LEP students have made significant academic gains. In fact, LEP students are beginning to close the gap between their overall performance and the performance of non-LEP students.

     Another example of the positive effects of OCR policy and compliance efforts are the results accomplished through our work with the Adams County School District #50 in Colorado. To meet its Title VI obligations, the District selected a program that is structured to focus on increasing English language proficiency. The program encompasses the core content curriculum and has allowed LEP students to participate and progress in the District's educational program. Because of our collaborative efforts with the district, LEP students are closing the gap between their overall performance and the performance of non-LEP students. Former LEP students raised their academic performance as a result of OCR's assistance, as measured by standardized test results, improved graduation rates, and reduced drop out rates. Most promising, the graduation rate for former LEP students was 100% -- truly a remarkable achievement.

     CONCLUSION

     Thank you for the opportunity to share with you information about OCR's efforts to provide equal access to educational opportunity -for all students. I would be pleased to respond to any questions you may have.

     TESTIMONY

     OF

     LINDA CHAVEZ

     PRESIDENT

     CENTER FOR EQUAL OPPORTUNITY

     BEFORE

     THE HOUSE SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS OF

     THE HOUSE COMMITTEE ON EDUCATION AND THE WORKFORCE

     JUNE 22, 1999

     "POLICIES AND ENFORCEMENT ACTIVITIES OF

     THE OFFICE FOR CIVIL RIGHTS

     AT THE DEPARTMENT OF EDUCATION"

     Mr. Chairman,

     I am Linda Chavez, President of the Center for Equal Opportunity, a non-profit research and education project specializing in issues related to race, ethnicity, and assimilation. It is a privilege to be with you this afternoon to testify on the policies and enforcement practices of the federal Office for Civil Rights (OCR) at the Department of Education.

     I have been involved with the issue of bilingual education and civil rights for much of my 25-year professional career. My interest in this issue began while I was the editor of the American Federation of Teachers magazine and in my work with that organization's late president, Albert Shanker. As you know, I also served as staff director for the U.S. Commission on Civil Rights during the Reagan Administration. I have written extensively on civil rights and bilingual education issues in both professional journals and the popular press and am the author of a book on Hispanics in the United States, Out of the Barrio: Toward a New Politics of Hispanic Assimilation (Basic Books 1991).

     OCR is tasked with ensuring that there is no discrimination in educational programs receiving federal funds. I will discuss three areas of specific interest to this committee. These include OCR's policies toward bilingual education, high-stakes standardized tests, and gender equity.

     Bilingual Education

     The rights of language-minority students are protected under Title VI of the Civil Rights Act of 1964. OCR is tasked with enforcing this law and ensuring that these students are provided with a program to assist them in learning English. In 1974 the Supreme Court in Lau v. Nichols held that, in order to satisfy Title VI, schools must take affirmative steps in helping language minority students. But it also cautioned: "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 instructions to this group in Chinese is another. There may be others."

     Although the Supreme Court made clear that it was requiring no specific program or methodology, OCR repeatedly and continuously makes clear its bias in favor of bilingual education in meetings and conversations with numerous school districts. Using the threat of a cut-off of federal funding, dozens of states and hundreds of school districts are being blackmailed into instituting or expanding bilingual education programs.

     Bilingual education programs can vary widely from state to state, school to school, and even classroom to classroom, but the type of program most favored by ethnic activists and OCR is what is know as "late-exit" or "maintenance" bilingual education. These kinds of bilingual programs teach language-minority children all their content courses in their native language for five to seven years or longer. It teaches them to read and write in Spanish before English and, in most cases, allows for only 30 minutes a day of oral English instruction. Often these programs contain a cultural, as well as language, maintenance component. Our own research by James Littlejohn, a 27-year veteran of OCR, has meticulously documented and clearly revealed OCR's policy preference toward bilingual education.

     In practice, only Hispanic children are subjected to this long term bilingual education approach, with rare exceptions. Out of more than 3 million language-minority children in the United States, nearly three quarters are Spanish-speakers. According to research by Professor Christine Rossell of Boston University, Hispanic students are routinely segregated into bilingual classes for Spanish-only instruction while every other language-minority group is taught either in integrated classrooms in English or in almost all-English "bilingual" classes. Thus, students of non Spanish linguistic backgrounds and with similar limited proficiency in English are taught almost exclusively in English, in an integrated environment, while Hispanic students are often forced into segregated classrooms, on the basis of national origin alone.

     In fact, most non-Spanish speaking language-minority students are taught in alternative programs, like Structured English Immersion or English as a Second Language (ESL), where their instruction is in English with a specially trained teacher, or they are pulled out of non-content classes for specialized English instruction. The common thread for the alternatives to bilingual education is that all instruction is integrated for all students regardless of national origin.

     Many bilingual education programs, in fact, violate the civil rights of Hispanic students. While Title VI of the Civil Rights Act does allow the segregation of language- minority students from English speakers for the purposes of specialized instruction, it does not allow discrimination or segregation on the basis of national origin among English-learners. OCR's policy preference for native-language instruction results in exactly this situation, where language-minority students, particularly Hispanics, are segregated, not on the basis of language needs, but on the basis of national origin.

     OCR policies also contribute to discrimination against language minority students by requiring that school districts over identify these students through the use of "horne- language surveys" and percentile-scored English tests. OCR policy prescriptions to school districts clearly require that, if anyone in a child's home speaks---or even understands-a language other than English, then that child must be given a standardized English test. Our review of hundreds of OCR compliance agreements with school districts across the country has clearly shown that this is the case.

     Although OCR requires what it calls an "objective" measurement, what it means by that term is that a child must score above a certain percentile ranking on a standardized English test. According to research by Jim Littlejohn, OCR staff push districts into adopting the highest possible cut-off score, the 40th or even the 50th percentile. However, using percentile rankings is totally inappropriate for this purpose because by definition a 40th percentile ranking means that 40 percent of all students who take that test--even if all are native-English-speakers-will score below the 40th percentile. Using standardized tests in this way guarantees a situation we see far too often-English monolingual Hispanic students forced into bilingual classes conducted almost entirely in Spanish. Only this past January at the annual National Association for Bilingual Education (NABE) conference in Denver, an OCR attorney told a gathering of school officials 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."

     In 1997 Denver decided to revamp its bilingual education program by focusing on intensive English and limiting bilingual education to three years. The district also adjusted its selection criteria to ensure that children who did not need Spanish instruction were not placed in such programs. OCR specifically objected to the Denver Public Schools' new bilingual program because of these changes. Denver wanted to use teacher evaluations and parents' input in addition to the standardized test, but OCR objected and threatened to cut off $30 million in federal funding. It was only earlier this month that a federal judge approved Denver's new plan, essentially rejecting OCR's legal arguments.

     Congress and several federal court rulings (Lau v. Nichols, Guadalupe v. Tempe, and Castaneda v. Pickard) have repeatedly made it clear that bilingual education is not required. Schools are required only to provide programs for English-learners that are based on an accepted educational theory, are implemented in accordance with the chosen theory, and that actually prove effective in a timely manner. Proponents of bilingual education at OCR and elsewhere argue that they are only promoting what they consider to be the most effective program. However, national research studies have repeatedly shown that this is not the case. In 1997, after a two-year review of all of the research on this subject, the National Academy of Sciences (Improving Schooling for Language- Minority Children: A Research Agenda. National Research Council) clearly stated that there is no evidence that bilingual education ever produces better results than non discriminatory alternative programs. According to the report, "We do not yet know whether there will be long-term advantages or disadvantages to initial literacy instruction in the primary language versus English, given a very high-quality program of known effectiveness in both cases."

     OCR's refusal to issue clear regulations regarding the legal obligations for schools has resulted in confusion and misapplication of the law. OCR compliance officers remain free to impose their own biases and preferences on school districts as well as onerous and burdensome requirements that have little to do with civil rights enforcement. My organization has produced two lengthy reports detailing the level of unregulated and unauthorized intervention that OCR agents practice on a regular basis. We have reviewed hundreds of compliance agreements for schools across the country and found a clear and consistent pattern of unwarranted interference in local school decisions. OCR must issue clear and specific regulations that accurately reflect current law to avoid the current politicization of its enforcement practices.

     High-Stakes Testing

     The Office for Civil Rights recently began circulating "draft guidelines" on "Nondiscrimination in High-Stakes Testing." The Chronicle of Higher Education obtained a copy of these guidelines and put them on its website. The guidelines have since become the subject of great controversy, particularly since they challenge the use of standardized tests when they have a "disparate impact' 'on racial or ethnic groups.

     Before talking specifically about the guidelines, let me describe the three kinds of discrimination that can be held illegal under our federal civil rights laws.

     The first kind is holding people to different standards, depending on the color of their skin or where their ancestors came from. If you have a double standard based on race or ethnicity, everyone would agree that this is discrimination in any normal use of the term.

     It has become something of an open secret these days that many most- selective colleges and universities use precisely these double standards. They require Asians and whites to score at a particular level on the SAT or ACT in order to be. admitted, but hold African Americans and sometimes Hispanics to a lower standard. Evidence that this is taking place has been collected by the Center for Equal Opportunity in a series of studies we have published and are continuing to publish on different state systems. The studies we have been published on California, Colorado, Michigan, North Carolina, Washington, Virginia, and the military academies at West Point and Annapolis are available on our web site, www.ceousaorg.

     OCR has not complained during the Clinton administration about this practice- which, again, any reasonable person would conclude is discrimination in violation of Title VI of the Civil Rights Act of 1964, the statute that OCR is charged with enforcing. It reads: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

     A second kind of discrimination that violates federal civil rights laws is when someone chooses a selection criterion because of the racial or ethnic impact it will have. For instance, if a school was told to desegregate and then suddenly decided to change its admission criteria in order to keep out blacks, that would clearly violate the law, even if the new criteria were neutral on their face.

     Here is a more recent example. The U.S. Court of Appeals for the Fifth Circuit in Hopwood v. Texas held that the state could not use racial and ethnic admissions preferences. The state of Texas decided, in the wake of this decision, that it would no longer consider SAT scores for the top ten percent of each high school class. It made clear that it was changing the standard in order to ensure that more blacks and Hispanics, and thus fewer whites and Asians, were admitted. Clearly, then, that was a violation of the law.

     OCR made no complaint about the new Texas law. In fact, Norma Cantu sent a letter attempting to intimidate Texas schools into ignoring the Hopwood decision by threatening to withhold federal funds-a pattern that repeats itself across all areas of OCR enforcement practice.

     The third kind of discrimination is known as "disparate impact." Under this approach, a selection device that is neutral on its fact, and that is applied neutrally, and that was chosen with no discriminatory animus, is nonetheless presumed to be illegal if it has a disproportionate effect on some racial or ethnic group.

     No normal person would consider a standardized achievement test for admission to be "discrimination" under any reasonable definition of the term. But the Office for Civil Rights has decided to apply this theory of disparate impact, which originated in employment law, to the context of higher education. In my view, this is a mistake.

     No federal statute requires OCR to challenge selection criteria that are nondiscriminatory on their face and have been adopted without discriminatory intent. To the contrary, the Supreme Court has made clear that Title VI itself bans only intentional discrimination-that is, only the first two kinds of discrimination that I discussed. See, e.g., United States v. Fordice (I 992).

     Nonetheless, OCR has decided to challenge standardized tests if they have a "disparate impact." It does so without defining the degree of impact that will be considered illegal, a major omission designed to intimidate educators. The guidelines also say that even "contribut[ing]" to a disparate impact is enough.

     OCR then places the burden of justifying this impact on the college, which is inconsistent with the law. It defines the burden as proving the test is "educationally necessary" and that it is technically "valid," and makes clear that this burden is a heavy one-all also inconsistent with present law. Even if the test's use is legal, OCR argues that the use of cutoff scores must be separately justified. Finally, it requires the college to prove a negative-that there is no "practicable alternative form of assessment" that would have less of a disparate impact. The law doesn't require this either. See generally the Supreme Court's decisions in Wards Cove Packing Co. v. Atonio (1989); Watson v. Fort Worth Bank and Trust (1 98 8).

     Thus, contrary to OCR's protestations since its guidelines became public, they do not simply restate the law. Indeed, they violate it.

     OCR's draft guidelines are a transparent attempt to intimidate colleges into manipulating selection criteria with an eye on the racial and ethnic bottom line, or overlay any criteria with bald preferences based on race or ethnicity. These are examples of the first two kinds of discrimination I discussed-real discrimination and each is patently illegal.

     Their illegality aside, OCR's proposed guidelines are bad policy. This administration purports to champion rigorous academic standards, but then tries to intimidate schools that would use tests to ensure they are being met. As Abigail Thernstrom recently put it in her New York Times op-ed, "Removing the tests simply shoots the messenger-and undermines the drive to raise academic standards."

     Title IX

     Title IX of the Education Amendments of 1972 provides: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in any education program or activity receiving Federal financial assistance...."

     This is a straightforward ban on discrimination: treating people differently "on the basis of sex." Yet once again a ban on discrimination has, perversely, become a mandate for quotas. Indeed, OCR's demands for quotas here are its most blatant.

     OCR's policy interpretation of Title IX, issued during the Carter administration, set out a three-prong test for meeting the statute's requirements. A school is complying with Title IX only if. (1) "Intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments"; or (2) the institution can show a "history and continuing practice of program expansion that is demonstrably responsive to the developing interest and abilities of the underrepresented sex"; or (3) in the absence of the first two, the institution can demonstrate that "the interests and abilities of [the underrepresented sex] have been fully and effectively accommodated by the present program."

     It should be noted to start out with that it is very unclear how one gets from the straightforward language of the statute-or even the less straightforward language of the regulations-to this rather convoluted three-prong test. The test is also increasingly outmoded and ought to be changed.

     The way that the three-prong test has been applied is even worse in practice than it might have been on paper. We still don't know what the third prong means: it has never been successfully litigated in federal court.

     The second prong had never been successfully asserted in court either, according to The Chronicle of Higher Education, until earlier this year. Syracuse University invoked the defense in a case that was decided recently by the U.S. Court of Appeals for the Second Circuit.

     Thus, this three-prong test has generally been illusory, since it all comes down to the first prong: whether, based on their respective shares of the overall student body, the same number of intercollegiate slots are available for men as for women. If you think that sounds like a quota system, you're right. The fact that women may be less interested in intercollegiate sports, or that the women's teams may lose a lot more money than the men's teams-such considerations don't matter.

     To make matters worse, a year ago OCR issued a "clarification7- without giving anyone the opportunity to comment-regarding scholarship distribution, namely that substantially proportionate really means within one percentage point! Predictably, OCR assured everyone that the one-percent rule was "a guideline and not a quota." Up until then, many experts had argued that a figure within five percentage points was substantially proportionate. OCR insisted, "This is not a change in policy. This policy has been long-standing." But a former OCR investigator said that the clarification was in fact a rewrite of the office's requirements. "'If OCR is attempting to enforce a narrower standard, then what they are doing is enforcing a policy that is counter to their written policy, and I believe it is of questionable legality for them to do so," she said, according to The Chronicle of Higher Education.

     Of course, we know what the result of OCR's policies has been. Increasingly, many schools have concluded that they must cut men's sports in order to bring themselves into gender balance. And that has been a tragedy. Last year it was reported that, according to a survey by the NCAA, 200 men's teams had been axed from 1992 to 1997, meaning that 17,000 young men lost out on participating in a sport-ironically, all in the name of "equal participation."

     Actually, we think the NCAA's numbers are low: it's probably closer to 20,000. During this time, the number of female athletes increased by only 5,800. So nearly four males were dropped for each new female. According to the Independent Women's Forum-which has done outstanding work in this area-the number of male teams axed is now up to 354.

     I understand that you will be hearing from some of the victims of those cuts at your hearings. With so many schools affected and so many athletes harmed, there is no point in trying to list them all. I would just point out that some ' of the most recent victims have been men's teams at Miami University of Ohio, Brigham Young University, and the University of New Mexico-but that's just from this April. Just pick up a copy of The Chronicle of Higher Education to read about the next team being cut from a college.

     OCR shows no sign of slowing down, according to the Chronicle, which reported last month that the agency is "considering new regulations that would require colleges and universities to disclose more data about the money they spend on men's and women's sports teams."

     Conclusion

     It is undeniable that OCR's creative interpretations turn the civil rights laws on their head. The Office for Civil Rights at the U.S. Department of Education, under the leadership of Norma Cantu, is actively involved in violating the civil rights of literally millions of students from kindergarten to graduate schools, across the country. OCR's prescriptive policies require that: Hispanic students be segregated and taught in Spanish, even if they don't actually speak Spanish; that universities eliminate men's sports to achieve numerical parity with women's sports; and that selective universities eliminate merit-based admissions standards and replace them with racial and ethnic numerical proportionalism. Equally troubling is the fact that OCR repeatedly attempts to implement this agenda covertly and in the face of established law to the contrary.