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O.C.R. Bilingual Plan Gives Districts 'Complete Flexibility'

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Washington--The Education Department's office for civil rights has developed a set of guidelines designed to form the basis for a new federal policy on bilingual-education programs in the schools.

If implemented, the concepts would replace the detailed, prescriptive rules proposed under the Carter Administration and later withdrawn by Secretary of Education Terrel H. Bell with a "results-based" approach to enforcement of the civil-rights laws governing the education of so-called "language-minority" children.

The new approach, as outlined in a memorandum from the office for civil-rights (ocr) staff to the designated assistant secretary for civil rights, Harry M. Singleton, would focus on whether schools' language programs actually aided non-English-speaking students, rather than on specific teaching techniques. It would permit school districts to use a variety of educational strategies to teach language-minority children, as long as officials could demonstrate--through "proven" past success, the evaluation of an expert, their own "evidence" of effectiveness, or proof of "legitimate experimental" approaches--that they were successfully meeting the needs of those children.

Internal Policy Dispute

The action appears likely to exacerbate an internal policy dispute among Reagan Administration officials in the department, the more politically conservative of whom have expressed the belief that no specific federal guidelines governing the proper ap-proach to bilingual education should be issued by the department.

Specifically, the department's general counsel, Daniel Oliver, argued in a memorandum to the undersecretary last February that the Lau v. Nichols decision by the U.S. Supreme Court in 1974--which ordered the federal education agency to develop guidelines for schools to follow in addressing the needs of non-English-speaking students--"should not control department policy."

Mr. Oliver, who argued that any program implemented by schools to serve non-English-speaking students should be accepted by the federal government as evidence that minority children are adequately served, was said by sources to be developing a set of new guidelines of his own.

The general counsel's guidelines were said by sources to rely on a "discriminatory intent" standard set out by the Court in its 1978 Regents of the University of California v. Bakke decision, and in subsequent decisions. ''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 students," according to Mr. Oliver's memorandum.

If the final guidelines submitted by the ocr and the general counsel's office differ greatly in their approach to the issue, the Secretary will ultimately decide on the proper guidelines to be published in the Federal Register.

Serve as 'Clearinghouse'

The ocr staff proposal would give districts their choice of the proposed standards by which to document the "results" of their bilingual programs. The policy paper envisions that the Education Department's civil-rights office would serve as a "clearinghouse" to provide technical assistance and information to individual districts on effective educational strategies.

In the memorandum, dated Aug. 18, the ocr officials contend that under their proposal school districts would have "complete flexibility in their education policies and program choice."

More specific standards would be developed "solely to increase the validity of the evidence provided by the district," the memorandum explains. "Such accounting standards are necessary if predicted success is to be legally acceptable in lieu of proven success as a compliance standard." Moreover, the document proposes that the Education Department develop its policy and promulgate new regulations on a "trial basis to determine whether it provides adequate protection."

The memorandum adds that "some of the options may turn out to be impractical or of little use to school districts. In this case, the trial period would expose this and the options could be withdrawn or modified, as appropriate."

The draft memorandum, which reportedly has since been revised to combine two of the four proposed "results" standards into one, also suggests that the new approach would warrant an expanded role for ocr in providing school districts with the "technical assistance" they will need to comply with the new standards.

The ocr's proposed strategy emphasizing program results is a departure from the position taken under the previous Administration, which had proposed a prescriptive set of guidelines known as the Lau regulations.

Those regulations were withdrawn in February 1981 by Secretary Bell, who said at the time that the department would protect the rights of children who do not speak English, but would also permit school districts to use any method "proven to be successful."

Since that announcement, the department has conducted reviews of local bilingual-education programs under a 1970 memorandum that does not provide specific guidelines for determining whether a school district is in compliance with Title VI of the Civil Rights Act of 1964. Under Title VI, school districts are prohibited from discriminating on the basis of race, color, or national origin in federally assisted education programs.

The department's compliance rules, issued in the 1970 memorandum and later published in the Federal Register, were affirmed by the Supreme Court in its Lau v. Nichols decision.

The Reagan Administration has said all along that it would like to lessen the federal role in civil-rights enforcement, but officials within the department have been in sharp disagreement over how to structure the Title VI compliance standards. As a result, 19 months after the Secretary withdrew the Lau regulations, the department still has not issued a final bilingual-education policy. (See Education Week, April 28, 1982.)

Inadequate Guidelines

The ocr has pursued the new ideas, according to the August memorandum, because the current guidelines have proved inadequate. Although the 1970 memorandum has the force of law, it has not provided specific standards to assist the department's civil-rights officials with their obligation to conduct compliance reviews in local school districts, according to last month's internal memorandum.

The ocr proposals for "results tests," the document suggests, are specific enough to serve as a legal "demonstration of compliance" with the law. While it may be "difficult to produce successful results,'' the document states, "... the provision of equal opportunity does not necessarily entail equal educational results."

Details of the original four compliance options for school districts, as described in the Aug. 18 memorandum, are as follows:

Results Test. This option follows "the spirit" of the approach espoused last year by Secretary Bell when he withdrew the Lau regulations, according to the memorandum. Districts would be required to collect and maintain data on language-minority students enrolled in their bilingual-education program, according to the memorandum.

Their recordkeeping would have to include students' achievement scores in English and other courses; statistical comparisons of bilingual students and students enrolled in regular programs; the number of bilingual students who have completed the program; and information on "mainstreamed" students' progress in the regular school program.

Such information, according to the memorandum, would signal compliance and provide evidence that language-minority students receive "a meaningful opportunity to participate in regular school programs."

Expert-Based Test. "To fulfill its responsibilities under Title VI, the district need only provide evidence that it is pursuing an approach or is operating a program based on an educational theory recognized as sound by at least some experts in the field," the memorandum states.

Each school district would be left "to determine which education approach is best suited to meet the needs of the district's language-minority students." But districts would be required to maintain records on the credentials of such experts and the evaluations they conduct. Evaluation plans outlining the program's objectives would also be required.

Program Test. School districts could comply under this option by showing how their programs meet the needs of language-minority students. Requirements would include "sufficient details" of a program's educational objectives and how a district went about providing services and training and recruiting staff.

In addition, districts would be required to indicate measures taken when objectives are not met and to chart students' progress in regular programs after leaving the special language-assistance program.

Experimental Approach Test. This option would permit "a certain freedom of action and leeway to follow new ideas" and perhaps lead to the discovery of innovative techniques and initiatives, the memorandum explains. However, school districts electing to show compliance under this option would be required to notify ocr in writing.

School districts would be required to provide descriptions of the experimental design and objectives along with an explanation of the approach. In addition, evaluation reports indicating "progress toward meeting those objectives" would be required, and districts would have to develop plans modifying the program in the event that the objectives ''fall below expectations."

School districts would also be required to provide remedial services for children in the experimental program if modifying the program fails.

Regardless of the form ocr's final policy takes, school districts, especially those that are "less sophisticated," will need technical assistance, the memorandum concludes. Although ocr acknowledges its current inability to offer such technical aid, the memorandum suggests that ocr could serve "in the role of clearinghouse."

Officials in at least two ocr regional offices have already notified Title IV-funded personnel in nearby "technical-assistance centers" that ocr intends to expand its responsibilities and to provide technical assistance, a service already provided by the existing Title IV centers around the country. Approximately 28 technical-assistance centers have been established under Title IV of the 1964 Civil Rights Act, which authorizes federal aid to assist state agencies and school districts with desegregation programs.

Educational Expertise

In the past, school districts found in noncompliance by ocr have turned to the educational expertise of the Title IV-center staff members. Depending on the type of center, districts can receive advice on developing educational and teacher-training programs, or conducting workshops.

Although sources said it is generally agreed that there is a need for a centralized Title IV operation, several questioned the wisdom of having the ocr serve in that role. They contend that school districts feel somewhat threatened by the ocr because of its enforcement power and are therefore less likely to be open and responsive to advice from the office.

Any coordination of effort between the ocr and Title IV staff members, they said, could jeopardize the latter's relations with school districts. In order for Title IV centers to be successful, the sources suggested, they must often establish a level of trust with school districts referred to them.

Because of its past enforcement role, according to several sources, the ocr would have to earn the necessary trust.

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