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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. 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."

Vol. 01, Issue 31

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