Docket number: 08951023
Date of issuance: July 31, 1997
Name of signer: Lillian Gutierrez

July 31, 1997

Re: 08951023 - C

Mr. Irv Moskowitz
Superintendent
Denver Public Schools
900 Grant Street
Denver, Colorado 80203

Dear Superintendent Moskowitz:

The U.S. Department of Education, Office for Civil Rights (OCR), has completed its investigation of the complaint referred to above, filed against Denver Public Schools (District). The complaint alleges that the District discriminates against limited-English proficient national-origin minority students (LEP students) by failing to provide educational services that ensure that such students have equal and meaningful access to the District’s program.

OCR investigated whether the District is providing services to over 13,000 LEP students in a manner consistent with the requirements of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (Title VI), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Section 504), and Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12161 (Title II), and their implementing regulations. The District is a recipient of Federal financial assistance from the Department and a public educational entity. Accordingly, OCR has jurisdiction to resolve the allegation.

On April 10 through 21, 1995, OCR conducted an on-site investigation at six elementary schools, two middle schools, and three high schools. Our findings also take into account data furnished by the District prior to the on-site investigation, as well as information received from more recent conversations with administrative staff persons and the District’s proposed "Program for Limited English Proficient Students," announced March 6, 1997.

Based on this investigation, OCR finds that the District discriminates against LEP students on the basis of national origin and disability by not providing them equal educational opportunity, in violation of Title VI, Section 504, and Title II, and their implementing regulations. The bases for our violation findings are summarized below.

In 1980, by means of a supplemental complaint to a court order requiring desegregation, the Congress of Hispanic Educators alleged violations of Title VI and the Equal Educational Opportunity Act of 1974 (EEOA), 20 U.S.C. §§ 1701-1721 (1974), with respect to LEP students. In August 1984, the District Court approved a Consent Decree, which incorporates the June 1984 negotiated document, "A Program for Limited English Proficient Students" (referred to in this letter as the "program manual"). Keyes v. School District No. 1, No. C-1499 (D. Colo., August 17, 1984) (order approving the Consent Decree). The program manual reflects District policy for the education of LEP students, and includes procedures and time frames for identification and assessment of LEP students, qualifications and development of alternative language program staff, and alternative language service models. The United States is not a party to the litigation under Keyes, filed on behalf of LEP students.

OCR investigated issues associated with the District’s programs and services for LEP students that are addressed by the Keyes Court Order, as well as issues not addressed by the Court Order, including alleged noncompliance with Section 504, Title II, and their implementing regulations. Our findings in this case are based on OCR's determination of the District's compliance with Title VI, Section 504, Title II, their implementing regulations, and OCR policy guidance, as summarized below. OCR's findings do not supersede the District's obligation to comply with the Keyes Court Order.

The Title VI implementing regulation at 34 C.F.R. § 100.3(a) and (b) provides that recipients of Federal financial assistance may not, directly or through contractual or other arrangements, on the ground of race, color, or national origin, exclude persons from participation in its programs, deny them any service or the benefits of its programs, or subject them to separate treatment.

The regulation implementing Section 504, at 34 C.F.R. § 104.35, provides that a recipient that operates a public elementary or secondary education program shall conduct an evaluation of any person who, because of disability, needs or is believed to need special education or related services before taking any action with respect to the initial placement of the person in a regular or special education program. The regulation at 34 C.F.R. § 104.36, provides that a recipient must establish a system of procedural safeguards for students who need or are believed to need special education or related aids and services that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parent or guardian and representation by counsel, and a review procedure. Such procedural safeguards must be communicated in a language that is understood by the parents or guardian.

The regulation implementing Title II, at 28 C.F.R. § 35.130(a) and (b)(1)(ii) and (iv), prohibits public entities from discriminating against qualified persons with disabilities by providing them different aids or services than are provided to others, unless such action is necessary to provide them with aids or services that are as effective as those provided to others.

The Departmental Policy Memorandum issued on May 25, 1970, entitled "Identification of Discrimination and Denial of Services on the Basis of National Origin" (the May 1970 memorandum), 35 Fed. Reg. 11,595, clarifies OCR policy under Title VI on issues concerning the responsibility of school districts to provide equal educational opportunity to language minority students. The May 1970 memorandum states in part: "Where the inability to speak and understand the English language excludes national origin minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students." The May 1970 memorandum, as affirmed by the U.S. Supreme Court in Lau v. Nichols, 414 U.S. 563 (1974), continues to provide the legal standard for the Department’s Title VI policy concerning discrimination on the basis of national origin against language-minority students.

In December 1985, OCR issued a document entitled "The Office for Civil Rights Title VI Language Minority Compliance Procedures" (December 1985 memorandum). In September 1991, OCR issued a Memorandum entitled "Policy Update on Schools Obligations Toward National Origin Minority Students with Limited-English Proficiency" (September 1991 memorandum). These documents outline the standards and procedures used to evaluate school districts for compliance with Title VI in this area. In summary, a school district must identify which of its national-origin minority students have limited English proficiency, and provide them with an effective program that affords them meaningful access to the district's educational program.

In evaluating a district's compliance with Title VI, OCR uses the analytic framework articulated in Castañeda v. Pickard, 648 F.2d 989 (5th Cir. 1981), which was adopted in the September 1991 memorandum. First, OCR determines whether the school district has chosen a program model for providing educational services to LEP students that is based upon a sound educational approach or upon a legitimate experimental strategy. Second, OCR determines whether the district is effectively implementing the educational theory it adopted. A school district must allocate adequate and appropriate staff and resources, such as instructional materials, to implement its chosen program properly. Finally, OCR determines whether the district has taken action if the program, after a legitimate trial, fails to produce results indicating that the language barriers confronting students are actually being overcome.

The May 1970 memorandum states that districts must take affirmative steps to rectify national-origin minority students' language deficiencies where inability to speak and understand the English language prevents LEP students from effective participation in the district's program. The September 1991 memorandum states that a district should have procedures in place for identifying and assessing LEP students to ensure that all national-origin language-minority students who are unable to participate effectively in the mainstream instructional program, due to their limited proficiency in English, are receiving alternative language services. Thus, such procedures should be designed and implemented to ensure that a district identifies all national-origin language-minority students who are unable to speak, read, write, and understand the English language.

Determining that a national-origin language-minority student speaks only English, or speaks English most of the time, is not equivalent to determining that the student is proficient in the language skills required to participate meaningfully in an English-only academic environment without the benefit of alternative language services. If the student first learned to speak another language, lives in a home in which another language is spoken, or speaks or understands another language (unless learned academically), then the student’s proficiency in English should be assessed objectively to determine whether the student is LEP and in need of alternative language services. Language proficiency, as expressed in this letter, is an objective measure of how well an individual can speak, read, write, and comprehend a language relative to the standard expected of native speakers of the language.

In response to written inquiry, review of statements of procedures, and interviews with District staff persons, OCR learned of a variety of inconsistent criteria used within the District for identifying students who are LEP. According to the District’s program manual, a student is LEP who first spoke a language other than English or has another language spoken in the home, and scores below certain thresholds on oral and reading tests in English. According to the Director of Bilingual and ESOL Education (program director), any student who first spoke a language other than English or has another language spoken in the home is LEP, regardless of tested proficiency in English. Members of the program director’s staff informed OCR that such students must score at level 1, 2, or 3 (out of 5) on the Language Assessment Scales-Oral (LAS-O) test, or below the thirtieth percentile on the Iowa Test of Basic Skills (ITBS), before they are classified LEP.

Student file reviews and staff member interviews indicated that procedures for initial assessments of English-language proficiency varied from school to school. Initial assessments of English-language proficiency were:

• Subjective, rather than based on objective instruments;
• No more than oral interviews, which are neither objective nor validated;
• Limited to assessment of oral proficiency in English;
• Based on the Short Form of the LAS-O, contrary to the publisher’s recommendation;
• Untimely, when dependent on ITBS scores, which are not available until the spring;
• Administered by staff persons who have not been trained to administer the assessment instrument; or
• Inconsistent because some national-origin language-minority students were identified as LEP based on their low ITBS reading scores, whereas others with low ITBS reading scores were not.

The District and its staff persons were unable to furnish OCR a consistent distinction between the proficiency skills of LEP and non-LEP students, nor meaningful delineations of the English-language instructional needs of students identified as LEP. The District expresses students’ language abilities with the use of a five-tier scale that incorporates subjective determinations of language dominance with assessment of proficiency in English oral and reading proficiency. One end of the scale, category A, generally describes a student with no English-proficiency skills; the other end of the scale, category F, describes a student with sufficient proficiency in English to participate meaningfully in the academic mainstream. Categories B and C do not distinguish the range of oral proficiencies from the range of reading proficiencies. For example, a student identified in category C may either have low oral proficiency and high reading proficiency, or high oral proficiency and low reading proficiency. Staff persons interviewed were unable to agree whether students in category C are LEP.

A category D student is defined as one who first learned to speak English but has another language spoken at home, regardless of the student’s measured proficiency in English. Interviews and reviews of student files confirmed that language-minority students who first learned to speak English are assigned to language category D, even when they are profoundly lacking in English-language skills. As discussed in the "Program Participation" section below, this practice excludes LEP students from appropriate alternative language program services on the basis of criteria that are unrelated to these language-minority students’ ability to participate meaningfully in the mainstream educational setting.

In examining the District's policies, procedures, and criteria for identifying LEP students, OCR found that the District has not established policies and procedures for initially assessing thoroughly all language-minority students’ ability to speak, read, write, and understand the English language. Language-minority students are assigned language categories that do not consistently and meaningfully describe their needs for development of English-language skills. OCR further found that language-minority students who apparently require alternative language services to participate meaningfully in the academic environment are not identified as LEP. Accordingly, OCR found that the District fails to establish and implement procedures to identify and assess LEP students to ensure that all language-minority students who are unable to participate effectively in the mainstream educational setting receive alternative language services.

The September 1991 memorandum, based on Castañeda, provides standards by which to determine whether a district's program for LEP students complies with Title VI. According to Castañeda, a district must not only adopt an alternative language program that is likely to meet the educational needs of language-minority students effectively; it must also make bona fide efforts to make the program work. A district must follow through with the practices, resources, and personnel that are reasonably calculated to transform the theory of the program design into the reality of the educational setting. In its analysis, OCR considered whether the program design is educationally sound, whether the program has been implemented as intended, whether participation is available to all identified students, whether staffing needs are satisfied, whether instructional materials are adequate, and whether objective criteria have been established for exiting LEP students from the program.

Program models:

OCR's December 1985 policy memorandum states that OCR considers whether the district's alternative language program is likely to meet the educational needs of language-minority students effectively when considering whether a school district is in compliance with Title VI. The September 1991 memorandum states that a district may demonstrate that its program is likely to be effective by showing that the educational approach used is considered sound by experts in the field or that it is a legitimate experimental strategy.

The District's selected instructional models for the education of LEP students are Transitional Bilingual Education (TBE) and English as a Second Language (ESL; also referred to as English for Speakers of Other Languages, ESOL, in the program manual), both of which are considered by experts to be sound models, if implemented fully and correctly. However, OCR found that the District has not fully implemented its selected models because:

• Some schools that enroll identified LEP students have not implemented either of the District’s selected program models;
• District educators report that the curriculum in bilingual education is less demanding than the District’s general curriculum; and
• Some LEP students assigned to bilingual programs are not receiving full program services because:
• The designated bilingual teacher does not have the Spanish-language ability necessary to provide full services, or
• The students receive services only from a bilingual paraprofessional.

Program Participation:

The May 1970 memorandum provides that, where inability to speak and understand the English language excludes national-origin language-minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students. According to the December 1985 memorandum, a district must provide alternative language services to all national-origin language-minority students who need such services. A district will be in violation of Title VI and its implementing regulation if it does not provide services designed to overcome effectively the language barriers of all its LEP students.

When a district permits a parent to decline a LEP student’s participation in a particular formal alternative language program, the district must continue to ensure that the student has an equal opportunity to have his or her English-language and academic needs met. Districts can meet this obligation in a variety of ways, for example, by providing adequate training to classroom teachers on second-language acquisition and English-language development, through evaluation, and by monitoring the educational progress of the student. District- and building-level staff persons informed OCR that LEP students receive only mainstream educational services once they or their parents decline participation in alternative language program services. This was confirmed by OCR's review of student files.

Further, the District does not provide alternative language services for all LEP students in language category D. According to a member of the program director’s staff, schools are not permitted to staff for category D students. If the alternative language program class is filled with category A, B, and C students, the school cannot hire or place another teacher to provide alternative language services for the category D students. The staff person added that category D LEP students are often those most in need of alternative language services because participation in the mainstream classroom becomes increasingly difficult for them. As noted above, language-minority students who first learned to speak English are designated with language category D, regardless of their proficiency in English. Thus, the District categorically excludes these students from qualifying for and receiving alternative language program services on the basis of criteria unrelated to their need for such services.

Data furnished to OCR by the District indicated that 106 of 361 (29%) category A and B students at a high school received no alternative language program services. Of all students in categories A, B, C, and D at the school, 385 of 680 (57%) did not receive such services.

Overall, OCR found that the District does not provide alternative language services to all language-minority students who need such services to ensure their equal and meaningful participation in the District’s educational program.

Staffing:

OCR's September 1991 policy memorandum requires a district to provide the staff necessary to carry out properly its chosen program. A district lacking adequate staff must either hire qualified teachers trained to provide alternative language services or require that teachers already on staff work toward attaining those formal qualifications. A district must complete this transition within a reasonable period, and should be able to show that its teachers have mastered the skills necessary to teach effectively in the chosen alternative language program. According to Castañeda, if a District shows that it has unsuccessfully tried to hire qualified teachers, then it must provide adequate training to teachers already on staff. Such training must take place as soon as possible.

OCR’s September 1991 policy memorandum also provides that a district should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students. In making this determination, the district should use validated evaluative instruments, that is, tests that have been shown to accurately measure the skills in question. The district should also have the teachers’ classroom performance evaluated by someone familiar with the method being used.

The program manual states that the District will strive to staff bilingual education and ESL classrooms with persons holding adequate qualifications to meet the needs of LEP students. Teachers with State endorsements in bilingual education or ESL meet the necessary qualifications; otherwise, a teacher may receive a District certification as a Qualified Bilingual Teacher or Qualified English as a Second Language Teacher by completing alternate training furnished and paid for by the District. This training includes 150 hours of contact time that can be completed over two summers. To be designated as a Qualified Bilingual Teacher, a teacher must also receive passing scores on the New Mexico Test of Spanish Language Skills.

According to the program manual, under-qualified teachers (i.e., those who have yet to attain the standards for certification as Qualified Bilingual Teacher or Qualified English as a Second Language Teacher) may be assigned to bilingual education or ESL classrooms. They must take the courses over the following two to three years to complete the qualifications to teach bilingual education or ESL. An under-qualified teacher in a bilingual classroom who fails to complete the course of study successfully in the time allotted must be transferred out of the bilingual education program. Similarly, an under-qualified teacher in an ESL classroom who fails to complete the course of study successfully in the time allotted will be transferred out of the ESL classroom if a more qualified teacher is available. Staff persons stated that when teachers do not achieve full qualification within the three allotted years, they are replaced with less-qualified teachers or bilingual paraprofessionals.

Administrative staff persons informed OCR that, although teachers in a bilingual education classroom need Spanish-language skills in order to provide core-area instruction, not all teachers instructing in "bilingual" classrooms are able to speak Spanish. Some teachers enter the program with little or no skill in speaking Spanish, and do not succeed in meeting the Spanish-language qualifications within the time allotted. Some try to pass the New Mexico Test of Spanish Language Skills, but others never make the effort to do so, according to the administrative staff persons.

Administrative staff persons informed OCR that evaluation of alternative language program teachers’ performance, like the evaluation of all teachers, is the responsibility of the building principal or assistant principal. They stated that principals are generally unfamiliar with instructional methodologies for second-language learners. To evaluate alternative language program teachers effectively, they added, District principals need training.

To summarize, LEP students in bilingual or ESL classrooms are often taught by unqualified or under-qualified teachers. Teachers who are making progress toward completing alternative language program qualifications are sometimes replaced in the alternative language program classroom by unqualified or less-qualified teachers; replaced teachers are reassigned to mainstream classrooms. LEP students assigned to alternative language program classrooms with unqualified teachers receive native-language instruction from paraprofessionals who are not qualified to teach. Alternative language program teachers are evaluated by principals without expertise in or knowledge of alternative language program methods. Accordingly, OCR found that the District does not ensure the availability of instructional staff persons whose qualifications are sufficient to meet the instructional needs of LEP students.

Instructional Materials and Resources:

According to the December 1985 memorandum, in order to ensure that alternative language program services are delivered effectively, districts are expected to provide adequate resources, such as instructional materials and equipment, in accordance with the requirements of the program. These resources must be available timely to staff persons providing alternative language program services. Limited financial resources do not justify failure to remedy a deficient supply of instructional materials and resources suitable for LEP students.

According to the program director, in the case of most schools, instructional materials in alternative language program classrooms are not comparable in quantity or quality, when compared with those in mainstream classrooms. The District requires principals to purchase materials from their school budgets. Principals, she noted, often buy all of the materials for the mainstream classrooms first; then they buy alternative language program materials out of what is left, even at bilingual schools. The District does not provide supplemental funding for alternative language program materials.

OCR’s investigation included interviews with teachers and the results of a District-generated questionnaire regarding the "allocated budget for resources" of 21 elementary school ESL teachers. During interviews, alternative language program teachers reported deficient quality in the instructional materials available to LEP students; an insufficient quantity of instructional materials; insufficient funding to provide sufficient materials; the necessity of translating, purchasing, or producing materials themselves; and a lack of native-language materials in the school library. Responses to the District questionnaire included several teachers indicating that their school has no allocated budget to meet the needs of LEP students, and the need to compensate for the lack of a materials budget by making or purchasing items at their own expense. One teacher recounted her principal’s response to a request for a specific amount to be allocated in the budget for ESOL materials. He denied her request, explaining that the entire school had to benefit from a purchase in order for it to be approved.

Overall, OCR found that the District has not carried out its program effectively. The District does not provide an adequate supply of instructional materials for LEP students that are academically comparable to the materials available to other students. Further, the District has failed to provide materials appropriate to the alternative language programs chosen and the needs of LEP students.

Exit Criteria:

Depending on individual educational need, LEP students may require several years of alternative language program services by qualified staff using models that are recognized as sound, before the students will possess adequate English-language proficiency to participate meaningfully in the mainstream academic setting. Under Title VI and its implementing regulation, time limitations and other categorical or subjective criteria may not substitute for objective determinations of a LEP student’s ability to speak, read, write, and understand English, prior to reducing or discontinuing recognized alternative language program services.

The September 1991 memorandum provides three means to determine the sufficiency of criteria established by a district for determining whether LEP students no longer require alternative language services. First, the exit criteria should be based on objective standards from which the district can explain how it ensures that students will be able to participate meaningfully in the mainstream educational environment. Second, the exit criteria should ensure that students can speak, read, write, and comprehend English sufficiently to participate meaningfully in the district's educational program. Third, the exit criteria must provide a meaningful opportunity for LEP students to be reassigned to the mainstream educational environment. In addition to these criteria, schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English.

Building-level investigation, including review of records, confirmed that alternative language program services are commonly discontinued for LEP students who have not demonstrated proficiency in the four English-language modalities of speaking, reading, writing, and understanding. Alternative language program teachers stated that there are no criteria for exiting LEP students from bilingual education at the elementary level. A middle school alternative language program teacher stated that LEP students transition out of bilingual education in two to three years, once they are proficient in oral English skills. Another middle school staff person informed OCR that category C and D students should be out of bilingual education and in the mainstream core because "they are more dominant in English." Because they are more orally proficient in English, she explained, they should be able to make it in the mainstream core.

At the high school level, assessment criteria for exiting are virtually ignored. Progress is reportedly evaluated by means of an oral interview and a "picture exam," in which the student is asked to describe in writing (using the native language and English) what is seen in the picture. An alternative language program chairperson acknowledged that the picture exam is neither normed nor validated. The chairperson added that LAS-O and ITBS scores are not used for exiting.

Overall, the District fails to ensure that when LEP students are exited from alternative language services, they are prepared to participate meaningfully in the mainstream classroom. Exit criteria used are often based on subjective data or locally-developed tests that are neither normed nor validated. The exit criteria, where established, often disregard LEP students' ability to read or write English.

Former LEP Students:

The September 1991 memorandum states that, once exited from the alternative language program, former LEP students should be able to participate meaningfully in the mainstream educational environment. That is, they should be able to keep up with their non-LEP peers academically and participate meaningfully in essentially all aspects of the curriculum without the use of simplified English materials. In order to implement this requirement, districts should monitor the academic progress of former LEP students on an individual basis.

Procedures included in the program manual require the monitoring of reclassified students for one year "to ensure that reclassification was correct." A committee may decide whether a student should be reclassified as LEP if ITBS scores decline significantly. Contrary to the requirements of the program manual, administrators informed OCR that exited students are "not formally monitored by anyone." Their ITBS scores may be monitored informally for one year, but there generally is no documentation of such monitoring.

Building-level investigation confirmed that, once LEP students are exited from alternative language program services, their ability to succeed academically is not monitored. An elementary principal informed OCR that staff persons do not know who any former LEP students enrolled at the school may be. A middle school alternative language program teacher stated that all monitoring is done informally by stopping the students in the halls and asking how they are doing; she does not think she has the "power" to do anything more formal. A high school alternative language program chairperson also denied being aware of a formal procedure for monitoring former LEP students. The only former LEP students known to the school, she added, are those who received alternative language program services at the school; staff persons would not know of students who exited the alternative language program at the middle school level.

Overall, the evidence is sufficient to conclude that the District fails to consider whether students who have been reclassified out of alternative language services are participating meaningfully in the mainstream educational environment.

OCR policy memoranda require districts that have designed and implemented programs for LEP students to have procedures for monitoring the program to ensure that it is effectively meeting the needs of LEP students. According to the December 1985 memorandum, OCR expects a district to maintain data regarding its implementation of an alternative language program and the progress of students who participate in the program. The September 1991 memorandum states, further, that a district that does not periodically evaluate its program or modify identified deficiencies is in violation of the regulation implementing Title VI. Ultimately, the measure of the effectiveness of any instructional approach for LEP students is whether these students are able to compete comparably with their non-LEP peers in the general academic setting.

OCR requested District reports, summaries, or evaluations assessing the implementation of the effectiveness of the programs and services for LEP students. The District furnished annual copies of the "Report on Resolution #2233" (report) for the three years predating the complaint. Resolution #2233 is a statement of nondiscrimination by the Board of Education, adopted April 1984. Each report includes documentation of LEP students’ aggregate gains or losses on annual achievement test scores; that is, all LEP students’ achievement in the school year is compared with their achievement level in the previous year to yield an average grade-equivalent change. However, the academic achievement of LEP students is not compared in the reports with the achievement of other students. The reports conclude that LEP students, in aggregate, are making "positive gains" year-by-year, but the reports do not provide data nor proffer conclusions regarding whether LEP students are able to keep up academically with their non-LEP peers. Furthermore, the reports provide no data regarding the academic success of former LEP students.

The District informed OCR that data are not available that allow comparison of LEP students and former LEP students with other non-LEP students, with respect to grade retention, achievement, attendance, graduation rates, dropout rates, or other appropriate indicators of LEP student performance. An administrative staff member informed OCR that the planning department can produce data on such things as graduation and drop-out rates for LEP and former LEP students, but no such study has been done.

An administrative staff member noted that close to 50% of all Hispanic students are known to drop out. Many of the students dropping out are from language category D, which further indicates a need for them to receive specialized services, according to the staff member.

OCR found that the District fails to comply with its obligation under the regulation implementing Title VI to monitor the effectiveness of its alternative language program and to modify any aspect found to be deficient. Despite acknowledged indications of insufficient services for LEP students, the District has failed to respond sufficiently by taking steps to correct the service deficiencies.

Communication with parents:

The May 1970 memorandum requires districts to provide the parents of language-minority students with notices containing the same information that is provided to the parents of other students. To be adequate, such notices must be furnished in a language appropriate to the parents. The intent of the May 1970 memorandum is to clarify a district's responsibility to communicate as effectively with language-minority parents as it would with other parents, despite any language barrier.

OCR observed notices that were intended for language-minority parents, issued in English only. Staff members informed OCR that, at the building level, some notices are translated, but often notices are not. Written notices such as newsletters, activity notices, notices of parent-teacher conferences, disciplinary notices, and report cards are seldom available in a language other than English, including Spanish. Parents reported that they do not understand school notices without the help of someone at home who understands English. Parents with children attending elementary schools informed OCR that the schools do not communicate effectively with language-minority parents. Parents also stated that meetings, including parent-teacher conferences, are frequently held without an interpreter or other assistance.

Overall, OCR found that the District provides some notices in an appropriate language other than English, but the District fails to ensure that language-minority parents consistently receive notices containing the same information that is provided to the parents of other students in a language understood by the parents.

Communication with students:

Based on the general prohibitions of different treatment under Title VI, notices such as activities, responsibilities, and academic standards provided to all students must be provided to LEP students in a language and mode of communication that they understand.

Statements from District- and building-level staff persons indicate minimal effort to communicate with LEP students in an appropriate language. OCR received copies of student notices issued exclusively in English. These notices include "Requirements for Candidates Seeking Student Council Positions," the Student Council Application form, a schedule of upcoming visits by college representatives, application deadlines for various scholarship funds, and a graduation "checkout sheet."

Other materials provided from a high school were partially translated into Spanish. A notable example is a page from the school’s course offerings. The page lists bilingually the minimum credits required in core subjects for graduation. However, only the English version also includes recommended minimum credits in core subjects for college-bound students. All other information on the page is in English only, including guidelines for choosing courses, a checklist for course registration, information on advanced-placement courses, and other guidelines specific to college-bound students.

OCR found that the District fails to ensure that language-minority students consistently receive notices of activities, responsibilities, and academic standards in a language and mode of communication appropriate to their language needs, and containing the same information that is provided to other students.

The regulation implementing Section 504, at 34 C.F.R. § 104.35, provides that a recipient that operates a public elementary or secondary education program shall conduct an evaluation of any person who, because of disability, needs or is believed to need special education or related services before taking any action with respect to the initial placement of the person in a regular or special education program. Specifically, the regulation states:

The May 1970 memorandum states that districts may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English-language skills. Accordingly, a district must employ standards and procedures for the evaluation and placement of language-minority students that reliably identify students’ educational disabilities, rather than the students’ English proficiency skills.

In reviewing whether a district's special education referral and evaluation procedures are in compliance with OCR policy, OCR generally considers whether staff use objective data and professional judgment to account for the effect of the language development and proficiency of language-minority students. If a student is not proficient in the language skills required to complete an assessment instrument, the results may not be valid. If district staff rely primarily on invalid test data, in lieu of other sources of information about the student, the district may be in violation of Section 504 and Title II.

In order to account for the effect of language on test results, staff persons at some school districts consider students' "dominant language" or "primary language," often using the terms interchangeably. However, determining that a student is dominant in English is not equivalent to determining that the student is proficient in the language skills required to produce valid, reliable results on a special education evaluation instrument.

The regulation implementing Title VI proscribes the denial of services and benefits based on national origin, and the regulation implementing Section 504 prohibits the denial of appropriate services and benefits on the basis of disability. Accordingly, the September 1991 memorandum requires districts to provide both alternative language services and special education services to students who need both.

The District furnished a copy of the Colorado Department of Education Rule: "Special Education Process." According to the Rule, a determination of the appropriateness of an English-language testing instrument for use in special education evaluation is to be based on the student’s proficiency in the language modalities required to take the test. Alternatives to formal testing are allowed as necessary. The District special education manual states that the District is committed to ensuring a free appropriate public education to all LEP students with disabilities. It requires that formal instruments, when test scores are utilized, be reliable and valid, and be used only in accordance with the instructions provided by the test producers. Otherwise, an instrument may be used informally as a sample of behavior, if staff persons do not rely on the test scores. These elements of the special education manual do not impose a barrier regarding the appropriate evaluation of language-minority students who have or are believed to have disabilities.

The special education manual requires consultation with the "Bilingual Evaluation Team" when a language-minority student is referred for evaluation. Other documents and interviewed staff persons refer to this as the "SEBES Team," where "SEBES" stands for "Special Education Bilingual Evaluation Services." The special education manual assigns responsibility for "a language dominance/proficiency screening" to the Bilingual/ESL department. Following this screening and "the normal interventions conducted by the bilingual education staff," school staff persons recommend whether a bilingual evaluation for special education is required. If Spanish is required for the evaluation, the building referral committee completes the necessary forms to request such an evaluation from the SEBES Team. If the evaluation will require the use of a language other than Spanish or English, staff persons from the school, the Bilingual/ESL department, and the SEBES Team are to work together to identify community resources to assist in the evaluation.

The special education manual defines the roles of the "staffing/IEP committee" when conducting initial evaluations, triennial reviews, or annual IEP reviews. The staffing committee is responsible for ensuring that each evaluation or reevaluation is of sufficient scope and intensity. The staffing committee is to determine the student’s present levels of functioning in psychological, social, physical, communicative, developmental, educational, and vocational areas, and to state the specific services to be provided for the qualifying student. The staffing committee is also charged with keeping an accurate record of its proceedings. The special education manual does not require the participation of a person knowledgeable about a LEP student’s language and culture on staffing committees making diagnostic and placement decisions.

OCR interviewed the District Manager for Special Education (special education manager). She informed OCR that the regular classroom teacher is responsible for screening students for "language dominance" prior to any referral for special education evaluation. If a language-minority student is to be evaluated, the staffing team at the building level determines which instruments they can administer and which they need help with because of another language. SEBES is involved in determining the appropriate languages for the evaluation only if the building-level staff persons have difficulty determining the student’s language dominance. The use of the SEBES Team is at the school’s option; referral to SEBES is encouraged but not required.

OCR received several forms used in the pre-referral, referral, and placement process, some of which are specifically for use with language-minority students. One example, the Pre-Referral Background Information and Language Survey for Limited English Proficient Children form, is used to determine "language dominance." Like the other forms furnished to OCR, the instructions on this form limit its use to students who have already been identified as LEP, and includes no space to record objective assessment of proficiency in English or any other language. The determination of "language dominance" is not based on a comparison of objective assessment of proficiency in two or more languages. Rather, staff persons are invited to draw a judgment of language dominance based on subjective information regarding the student’s language use and background. The person completing the form, who is not necessarily qualified to administer special education testing instruments, may suggest the language to be used for testing.

OCR received a copy of District report-writing guidelines for school psychologists. The guidelines include direction for evaluating students who are different from normative groups, such as "bilingual students." School psychologists should consider referring the student to SEBES if the student’s native language is Spanish, or consider consulting with SEBES if the language is other than Spanish. Nevertheless, school psychologists are not required to know a language-minority student’s proficiency in the language of testing prior to evaluating the student. According to the guidelines, when testing a language-minority student, "statements should be made indicating. . .how the scores need to be interpreted due to language factors." The evaluation report should include a statement that the student is different from the normative group.

According to the special education manager, the SEBES Team conducts evaluations in Spanish with "some instruments" that are normed to a Spanish-speaking population, trained interpreters are to assist with the evaluation of LEP students who do not speak Spanish, and evaluation reports are to indicate whether each test was properly normed. Because some tests are not properly normed to the population, "scores and overall test results are viewed with caution"; rather than relying on the test scores, the special education manager added, "we look at strengths and weaknesses."

OCR interviewed a bilingual school psychologist who can understand, speak, read, and write in Spanish, and who works in several District schools. The bilingual school psychologist reported that SEBES should always be contacted for referral of category A and B students. However, this is not consistently the practice. Language-minority students are not tested to determine the appropriate language for evaluation. Sometimes LEP students are evaluated in English only because school staff persons decide that LEP students are "fluent enough" in English.

In reviewing student files, OCR observed several examples of LEP students whose special education records included no documentation of language category or any objective assessments of language proficiency. OCR found that the languages selected for special education testing were based on subjective opinions of language dominance or ability to communicate in English. Further, diagnostic testing instruments that are published in English are often interpreted or translated into other languages for students who speak another language. As the example below illustrates, such practices have the effect of calling into question the validity of test results and the meaning of the evaluation data.

OCR reviewed the records of a Hispanic student designated in language category B, who was receiving special education services for a learning disability and speech-language. Her special education record includes no documentation of her language category or any objective assessment of her language proficiency. Her educational assessment report indicates that she was tested with the Woodcock-Johnson - Revised (WJ-R) Achievement, an English-language instrument. Portions of the test were translated into Spanish for the student by a "bilingual" special educator who informed OCR that she does not speak Spanish clearly. The special educator stated that this practice of translating questions on the WJ-R Achievement Test does not invalidate the test results. However, a bilingual school psychologist informed OCR that translating standardized instruments yields results that are "not strictly standardized," nor can the results be considered valid. The conflicting comments from the special educator and the bilingual school psychologist indicate an inconsistent understanding by District staff persons of how diagnostic instruments, such as the WJ-R, are to be used, and the meaning and validity of the test data when the test been translated or interpreted. By not recording data regarding the student’s proficiency in English or Spanish, the District has not ensured that evaluation data is documented and carefully considered by persons making diagnostic and placement decisions.

OCR also observed in language-minority student files several examples of staff persons disregarding the advice of evaluators that unknown effects of language-related criteria affect the reliability of the results, and should be considered when looking at test scores. Review of language-minority students’ special education files consistently indicated that diagnosis and placement decisions were based, to a significant extent, on the interpreted meaning of scores rendered for diagnostic instruments. The special education manual requires staffing committees to keep accurate records of proceedings; accordingly, it is understood that the record of each staffing accurately represents all substantive matters discussed and considered in making diagnostic and placement decisions. As illustrated in the example below, OCR found that when relying on the results of diagnostic instruments, IEP staffing committees and subsequent evaluators did not record cautions included in evaluation reports regarding the effect of linguistic differences on the validity and reliability of diagnostic instruments.

OCR reviewed the record of a Hispanic student in language category B, identified as Educable Mentally Handicapped. A 1988 psychological report states that intelligence scores "need to be viewed with extreme caution" due to issues related to language proficiency, and "the present assessment is likely to represent an underestimate of her cognitive abilities." A 1993 report, drawing on results of the 1988 evaluation summary, does not contain any reference to the "extreme caution" urged when the previous intelligence scores are analyzed. The subsequent IEP includes the following summary of the latest psychological evaluation: "Moderately Retarded range on the Verbal and Full Scales. Mildly Retarded range on the Performance Scale. . . ." There is no reference in this LEP student’s special education records indicating that "extreme caution" was considered when the intelligence scores were analyzed and the student was determined to have a disability. Accordingly, OCR concluded that IEP staffing committees do not consistently ensure that information obtained about language-minority students is carefully considered when interpreting evaluation data and making placement decisions; nor does the District ensure that special education placement decisions for language-minority students are made by groups of persons who are knowledgeable about the student and the meaning of the evaluation data.

Overall, the District fails to ensure that language-minority students are not assigned to special education programs on the basis of criteria that essentially measure and evaluate English-language skills.

According to the District special education manual, prior written notice of procedural safeguards must be furnished to parents at least ten days prior to a proposal or refusal to initiate or change a student’s identification, evaluation, or placement. Such notice must be "in the native language of the parent or other mode of communication used by the parent." The notice must be furnished prior to any formal evaluation and the initial placement of the student in special education or related services.

OCR was furnished copies of several District special education forms that are available in English, Spanish, Vietnamese, Russian, and Khmer. OCR asked several special education staff persons how they know which parents need to receive notices in their native language or to have interpreters present at staffings. Staff persons did not describe a consistent procedure for identifying the need to communicate with parents in a language other than English. Some staff persons rely on prior special education records. Some staff persons rely on the same language screening records, which, as shown above, fail to identify all language-minority students whose limited ability to speak, read, write, or understand English is a barrier to their meaningful participation in the mainstream academic environment. Some staff persons do not know the parents’ language needs until the staffing, well after parents were to have been notified of their rights and offered the opportunity to provide informed consent to the evaluation.

Consistent with the regulations and OCR policy, District policy requires that staff persons communicate with language-minority parents in a language that will ensure the parents’ informed consent and meaningful participation in the special education process. However, our investigation indicates the lack of a consistent, reliable strategy to ensure that this District policy is carried out. Accordingly, OCR found that the District has not demonstrated that language-minority parents are consistently notified of their specific rights and procedural safeguards in the language they understand.

OCR was told in interviews that District schools lack special education staff persons who are qualified to deliver recognized alternative language services. The District does not pay special education teachers to receive training in alternative language service delivery, as they do alternative language program teachers in the regular education setting. To meet their English-language needs, LEP students with disabilities receive "bilingual support," which is described as tutoring by bilingual paraprofessionals. Tutoring and instruction by staff persons who are not certified to teach are not recognized models for the instruction of LEP students.

At least seven staff persons, including building administrators, alternative language program teachers, school psychologists, and special educators, informed OCR that LEP students receiving special education services do not also receive alternative language services at all schools; this was confirmed by a review of student records. At least two other staff persons informed OCR that LEP students who receive alternative language services, receive less service time on average than other LEP students. To explain the disparity in services, an ESL teacher explained categorically that LEP students who are placed in special education services do not require alternative language program services because special education services can best meet their needs.

OCR found that the District discriminates against LEP students with disabilities on the basis of disability by failing to provide all of these students with appropriate alternative language services.

Based on the evidence, OCR determines that the District is in violation of Title VI and its implementing regulation, 34 C.F.R. § 100.3(a) and (b), Section 504 and its implementing regulation at 34 C.F.R. §§ 104.35 and 104.36, and Title II and its implementing regulation at 28 C.F.R. § 35.130. OCR finds that the District discriminates against national-origin-minority students on the basis of their limited-English proficiency and disability by not providing them services necessary to participate meaningfully in the District's educational program.

Specifically, OCR found:

• The District fails to establish and implement procedures to identify and assess LEP students to ensure that all national-origin language-minority students who are unable to participate effectively in the mainstream instructional program receive alternative language services;
• The District fails to implement fully its selected educational models designed to meet the English-language and academic needs of LEP students;
• The District does not provide alternative language services to all its identified LEP students;
• The District does not ensure the availability of instructional staff persons whose qualifications are sufficient to meet the instructional needs of LEP students;
• The District lacks adequate instructional materials to meet the needs of LEP students;
• The District fails to ensure that when LEP students are exited from alternative language services, they are prepared to participate meaningfully in the mainstream classroom;
• The District fails to consider whether students who have been reclassified out of alternative language services are participating meaningfully in the mainstream educational environment;
• The District fails to monitor the effectiveness of its alternative language program and to modify any aspect found to be deficient;
• The District fails to ensure that language-minority parents and students consistently receive notices containing the same information that is provided to the other parents and students in a language they understand;
• The District fails to ensure that language-minority students are not assigned to special education programs on the basis of criteria that essentially measure and evaluate English-language skills;
• The District has not ensured that language-minority parents are consistently notified of their specific rights and procedural safeguards in the language they understand; and
• The District fails to provide appropriate alternative language services to all LEP students with disabilities.

This letter addresses only the issues identified above and should not be interpreted as a determination of the District’s compliance with Title VI, Section 504, or Title II in any other respect. Individuals filing a complaint or participating in an investigation are protected by Federal law against harassment, retaliation, or intimidation [34 C.F.R. § 100.7(e)].

Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. In the event that OCR receives such a request, we will seek to protect, to the extent provided by law, personal information which, if released, could constitute an unwarranted invasion of privacy.

OCR has engaged in a series of negotiations with the District to obtain a voluntary agreement sufficient to resolve the complaint and correct the violations cited herein. On October 11, 1996, OCR furnished the District an Investigative Summary of this case, informing the District of our anticipated conclusions. OCR proposed a draft Agreement for Corrective Action on October 18, 1996, and initiated a series of negotiations with the District on October 30, 1996. On March 7, 1997, the District furnished its proposed "Program for Limited English Proficient Students," which was reviewed by OCR and found insufficient to ensure compliance with Title VI, Section 504, Title II, and their implementing regulations.

To date, the District has failed to take action that will correct the noncompliance. Because of the District’s failure to submit an agreement that would resolve the allegation and ensure compliance with Title VI, Section 504, Title II, and their implementing regulations, OCR has been unable to obtain voluntary corrective action. In light of this failure by the District to achieve voluntary compliance, our Office has recommended that the Assistant Secretary for Civil Rights refer this case to the U.S. Department of Justice for enforcement action, in accordance with 34 C.F.R. § 100.8(a).

If you have any questions regarding this letter, please call me at (303) 844-4480.

Sincerely,

Lillian Gutierrez
Director, Denver Office

cc: Richard Laughlin
Acting Commissioner of Education