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New Bilingual Policy Emerging; Strategy Debated

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While the Reagan Administration has reached a decision on how it wishes to amend the Bilingual Education Act, it has yet to resolve an ongoing debate among policymakers in the U.S. Education Department (ed) over how to replace the proposed bilingual-education rules withdrawn last year by Education Secretary Terrel H. Bell.

But the documents reflecting the internal debate suggest that department officials are working out a national concept of "expert-based" review of local bilingual programs that would replace the 1975 guidelines (the so-called "Lau remedies") Mr. Bell said the agency would go back to in lieu of the withdrawn rules.

And in fact, despite the Secretary's announcement more than a year ago that his agency would continue to conduct reviews of local bilingual programs under the 1975 Lau remedies, checks with officials in the ed's regional civil-rights offices indicate the "expert-based" concept is already being used in conjunction with a set of general guidelines issued in a 1970 memorandum. Several officials confirmed they were using a range of "tests"--including the "expert-based" concept--to measure Title VI compliance, even though an Education Department policy endorsing such procedures has not been formally agreed upon or publicized. But they admitted the definition of "expert" has not yet been clarified.

Although the Administration has made no secret of the fact that it would like to lessen its role in civil-rights enforcement activities, to unify its policies on bilingual education, and to give local school districts greater latitude in meeting the needs of language-minority students, ed officials are apparently in disagreement about how to structure "compliance" guidelines for Title VI of the 1964 Civil Rights Act to replace those withdrawn last year.

The department was required to to develop such legal guidelines as a result of a 1978 court case.

Under Title VI, school districts are prohibited from discriminating on the basis of race, color, or national origin in federally assisted education programs. To help districts move into compliance with that mandate, the former U.S. Office of Education in 1970 issued general guidelines in a memorandum sent to school districts.

Following the landmark 1974 Supreme Court decision in Lau v. Ni-chols, in which the Justices ruled that providing "equal educational opportunity" to non-English-speaking students required districts to make special efforts to assist them, the Office of Education developed a more detailed set of guidelines known as the "Lau remedies."

Unlike the 1970 guidelines and the Court decision itself, the Lau remedies specifically required districts in many instances to use native-language instruction in their bilingual-education programs.

Heated Debate

For most educators, the remedies marked the beginning of years of heated pedagogical debate about methods, and especially about the government's emphasis on the "transitional" bilingual approach. The remedies said, for example, that while acceptable in conjunction with other methods at the secondary level, the English-as-a-second-language approach was "not appropriate" for elementary-school students.

(The Commissioner of Education at the time was a President Ford appointee, Terrel H. Bell.)

But only the guidelines set forth in the 1970 memorandum were ever published in the Federal Register, a fact that led many to argue that the Lau remedies did not have the force of law. But the government made moves--identifying hundreds of districts that could possibly be in non-compliance, conducting compliance reviews, establishing so-called "Lau Centers" to provide technical assistance to schools in regions with heavy concentrations of non-English-speaking students--that put pressure on districts to meet the more prescriptive new guidelines.

Eventually, a school district took the government to court over the legal force of the guidelines, and the outcome of the case--Northwest Arctic School District v. Califano--was a consent decree under which the government agreed that the guidelines were unenforceable and said it would promulgate official rules for the enforcement of Title VI.

Education Department officials have been wrangling over new compliance guidelines ever since. President Carter's Education Secretary, Shirley Hufstedler, provoked enormous antipathy in the education community when she forwarded the proposals Secretary Bell later withdrew. They would have mandated native-language instruction in the some 500 "Lau districts."

But the Carter Administration also signaled the beginnings of a change in policy direction when, in late 1980, it ended a five-year feud with Fairfax County over its teaching strategies, making the affluent district the first in the country to have its all-English instructional program for non-English-speaking students found acceptable under Title VI.

In the Reagan Administration, Mr. Bell's undersecretary, William J. Clohan Jr., had been superintending the development of a new policy (the federal government "shouldn't be promulgating methodology," the Secretary has said), but in view of his sudden resignation this month, the emergence of new compliance guidelines appears doubtful for the near future.

However, much discussion has gone on recently that suggests the outlines of the Administration's approach.

Prior to his resignation under pressure earlier this month, Mr. Clohan requested that the department's office for civil rights and the general counsel's office develop "expert-based" guidelines that would give "deference to states and localities" in Title VI compliance cases, according to an internal department document.

Personnel Changes

However, those guidelines have not been written and, according to some sources, the office for civil rights, which is also undergoing personnel changes, has halted action on Mr. Clohan's request and does not expect to issue any guidelines for review based on the request.

In reaching his decision on expert-based guidelines, Mr. Clohan apparently ignored the advice of Clarence Thomas, the assistant secretary for civil rights, who cautioned against "undue reliance on an expert-based program."

In an informal note to the heads of the office of civil rights and the general counsel's office, dated March 3, Mr. Clohan said that "a program established by a school district which is based on expert advice should constitute an irrebuttable presumption that there is no Title VI violation" and that the department's enforcement guidelines should reflect that position.

However, in a March 1 memorandum, Mr. Thomas said the department's Title VI-enforcement policy "should not unduly emphasize or depend on the concept of an 'expert-based' program" because the concept is "exceedingly limited and may be only marginally useful in evaluating the adequacy under Title VI of a district's educational program for language-minority students."

The assistant secretary for civil rights further explained, according to the memorandum, that "while ex-perts can assist in the formulation of sound local education programs, the fact that a program is endorsed by one or more experts does not necessarily mean that it is suitable for a particular school district or that its implementation in a given school district will produce the desired results."

Differences in opinion were also evident in a Feb. 16 memorandum signed by Daniel Oliver, ed's general counsel, who favored the expert-based concept but recommended, in addition, greater use of "discriminatory intent" in proving compliance violations.

Mr. Oliver said in the memorandum that a program developed on expert advice alone "would strongly indicate that the [local education agency] is not acting out of animus [motivated by discriminatory intent] toward national-origin minority children."

Citing a 1981 appeals-court decision, Castaneda v. Pickard, which established a three-part test to evaluate the adequacy of special-instruction programs, Mr. Oliver said: "The court noted that a program of language assistance developed with the assistance of expert consultants, whatever its deficiencies, could not be found to be an expression of discriminatory intent against national-origin minority children."

In Castaneda v. Pickard, the U.S. Court of Appeals for the Fifth Circuit ruled that the Raymondville, Tex., school district was in violation of Title II of the 1973 Equal Educational Opportunity Act, which requires that a school district take "appropriate action to overcome language barriers that impede equal participation by students in its instructional program." The court ruled against the district because, although it had implemented a program based on "an educational theory recognized as sound by some experts in the field," it did not, in the court's view, meet all three of the tests (which included, in addition to expert advice, successful implementation and evidence of success of the program).

'Discriminatory Intent'

The Court, however, upheld a lower court decision that the district's bilingual program did not violate Title VI because of the absence of "discriminatory intent."

Mr. Oliver, who is now serving as Secretary Bell's deputy, replacing Mr. Clohan, also wrote that in view of more recent court decisions, ''Lau should not control Department policy" and urged that the department abandon its use of the 1975 "Lau remedies" and the 1970 compliance memorandum.

(The 1970 guidelines, currently being used as Title VI compliance guidelines, were upheld in the 1974 Lau decision.)

In his March 3 note to the general counsel, Mr. Clohan rejected Mr. Oliver's suggestion that the department ignore the Supreme Court's decision in the Lau case and rely on more recent court opinions in discrimination cases that have been decided since the Lau v. Nichols case. "I do not believe we should in effect overrule the Lau case prior to the Supreme Court overruling it," Mr. Clohan said.

For bilingual-education proponents watching the Reagan Administration's policies emerge, however, the key issue in bilingual education is enforcement of compliance. "The compliance guidelines [of the Administration] are weak and vague," Arnold S. Torres, executive director of the League of United Latin American Citizens, charged last week.

"The whole issue of discriminatory intent is the crux of everything this Administration does."

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