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Policy Reversal on Bilingual Efforts Charted in Memo

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Washington--Proposals that would radically shift national policy on bilingual education may be part of the Administration's new budget package, an internal Education Department document suggests.

The "decision memorandum," prepared by the department's office of planning and evaluation and circulated to key department officials last month, said that the department's 1983 budget proposal would include provisions that would "change the statutory definition of a bilingual education program" to limit the number of foreign-speaking children eligible for federally sponsored bilingual programs and to permit school systems to use the English-as-a-second-language and "immersion" methods of teaching such children.

Clarifications Sought

The memorandum, which was sent to the directors of the department's offices for bilingual education, research, civil rights, and legal affairs, requested a quick response from those officials, in what appeared to be an attempt to clarify last-minute legislative changes in the 1983 bilingual-education budget.

"In view of the urgency of resolving some long-standing issues," the memorandum's author, Emerson J. Elliott, gave the officials two working days to reply. Changing "the name and purpose of the legislation (and the name of the Title VII office)" would, the memorandum states, "reflect a new and more flexible Federal policy. This policy would permit the funding of any special language program that addresses the needs of English-limited children."

The new language, the document notes, "would send a clear signal that Title VII [of the Elementary and Secondary Education Act of 1968] is intended to provide assistance for all viable instructional strategies designed to overcome English-language barriers."

Required Teaching

The statutory change is needed, the paper explains, because the Education Department's lawyers have said the legislative history of the bilingual-education act, in particular a 1974 amendment, must now be interpreted to require at least some teaching in a student's native language.

The paper further outlines a legislative proposal to limit the use of bilingual-education funds for children "who are both limited English proficient and whose language is other than English." That change, it says, would "reduce the eligible population to about one million." The other children among the estimated 3.6 million currently eligible for assistance under Title VII, it argues, already "usually or exclusively" speak English.

Because of that, the memorandum asserts, Title VII could be supporting "language-maintenance" programs that do not strengthen proficiency in English.

The document also suggests that the department's budget might pro-pose a consolidation of the 14 federal categorical programs supporting bilingual education into a new "formula grant" that would go to districts with "high concentrations of English-limited children."

And the memorandum suggests that enforcement of the civil-rights laws that govern bilingual education--Title VI of the Civil Rights Act of 1964 and Part II of the Equal Educational Opportunities Act of 1974--might be modified.

Specifically, the budget office's memorandum asks whether the burden of proof in determining a school district's compliance with Title VI can be legally shifted from the school district to the federal government, and whether federal civil-rights officials should be required to prove not only "discriminatory effects" but "discriminatory intent" as well.

In a written response to the memorandum, Clarence Thomas, director of the department's Office for Civil Rights, states that the suggestion that school districts be relieved of the burden of proof "appears to ignore the fact that Federally-assisted school districts have an affirmative obligation to remediate the English-language skill deficiencies of language-minority students."

Regarding the determination of discriminatory effects or intent, Mr. Thomas's reply quotes from a federal court case, Castaneda v. Pickard, which sets a three-part test for determining compliance with civil-rights laws. According to the Thomas memorandum, the test includes: examining "the 'soundness of the educational theory...upon which the [bilingual] program is based'..."; determining "whether the programs and practices...are reasonably calculated to implement effectively the educational theory';" and proving that the plan was able to "'produce results indicating that language barriers confronting students are actually being overcome."'

'Balanced Model'

Mr. Thomas's reply says the three-part test also applies to the Equal Educational Opportunities Act, which is enforced by the Justice Department.

Calling the three-part test "a balanced model of responsible restraint," Mr. Thomas writes that he favors the test because it "neatly squares with the broad policy direction previously enunciated by Secretary [of Education Terrel H.] Bell."

That policy, which Mr. Bell explained when he withdrew the Lau regulations last year, asserts that the department "will protect the rights of students who do not speak English well, but we will do so by permitting school districts to use any method that proves to be successful."

The Lau regulations, which were proposed by the Carter Administration in August 1980, prescribed specific methods for school districts to use in evaluating and teaching limited-English-speaking students. They were issued in response to a 1974 U.S. Supreme Court decision involving the San Francisco school system and a 1978 federal appeals court decision involving the Northwest Arctic school system in Alaska.

Rebuttals Aired

When the two memoranda surfaced recently at a meeting of the National Advisory Council on Bilingual Education, their contents sparked a flurry of rebuttals from the council members and from officials of the department's bilingual-education office.

Jesse M. Soriano, director of the bilingual office, said that he does not agree with all of the proposed policy changes and that members of his staff were not involved in developing the policy changes.

Mr. Soriano said he has complained to Secretary Bell that his office is being bypassed on policy decisions affecting bilingual-education programs. He said he had been expecting changes in the program, but that he had difficulty gaining access to those who are making the decisions.

Of all the changes proposed in the budget office memorandum, formula funding is the least objectionable, claimed Nilda L. Garcia, a member of the advisory council.

Ms. Garcia said formula funding to replace the categorical programs would be preferable to block grants. Such a method of giving out federal bilingual-education funds could provide an incentive for the states to identify language-minority students, Ms. Garcia said.

During its meeting in Washington to collect testimony on bilingual-education programs, the advisory council also developed several position papers on the proposed policy changes. The position papers, members of the council said, will be delivered to Secretary Bell.

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