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In a major victory for language-minority parents and communities, the Supreme Court struck down the states' restrictive legislation, ruling, in essence, that whereas state governments can legislate the language used for instruction in schools, states may not pass laws that attempt to prevent communities from offering private language classes outside of the regular school system.

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Meyer v.  Nebraska (1923) | An Introduction to Constitutional Law

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Bilingual Education Act (BEA), U.S. legislation (January 2, 1968) that provided federal grants to school districts for the purpose of establishing educational programs for children with limited English-speaking ability. It was the first time that the U.S. government officially acknowledged that these students need specialized instruction. The Bilingual Education Act (BEA) was an amendment to the Elementary and Secondary Education Act of 1965.

Beginning in the late 19th century, millions of immigrants entered the United States, and many could not speak English. Some state governments pushed for assimilation, requiring non-English-speaking adults to take English-language classes. Children went to public schools, where they were totally immersed in the English language and often punished for speaking their native language. California and Texas established segregated public schools to accommodate the increase in Spanish-speaking children from Mexico. These schools concentrated on teaching English, but they had less funding than the schools for white non-Latino children and thus had inferior resources and underqualified teachers. Under these conditions many immigrant children dropped out or received an education that limited job opportunities.

In the ensuing years there were sporadic efforts to end school segregation, and these intensified in 1946 after a federal court ruled in that the segregation of Mexican American students in California schools was unlawful. More lawsuits followed, culminating in the landmark 1954 Brown v. Board of Education case, in which the U.S. Supreme Court found that racial segregation in schools was unconstitutional. This decision helped guide future educational policies toward equal opportunity. The civil rights movement and passage of the Civil Rights Act of 1964-intending to end discrimination based on race, colour, religion, or national origin-also furthered equality in education.

Despite these developments, language difficulties continued to hamper the education of many Spanish-speaking students. In 1967 U.S. Sen. Ralph Yarborough of Texas introduced a bill to help school districts educate students with limited English-speaking ability. This was a particularly important issue in Texas and other southwestern states, which were experiencing an increase in Mexican immigration. The bill recommended bilingual education-including Spanish and other native languages-and funding was designated for developing programs, training staff, and obtaining educational resources. In 1968 U.S. Pres. Lyndon B. Johnson signed the BEA into law.

Over the years, the BEA underwent various revisions to meet the needs of students, parents, and teachers. For example, when first conceived, the act favoured school districts with high percentages of students from low-income families. Funding was later broadened to include students from a wider range of economic groups. The grants were also expanded to include more options for their use, such as for technical assistance and for the establishment of special training programs.

In January 2002 U.S. Pres. George W. Bush signed into law the No Child Left Behind (NCLB) Act. It sought to improve public primary and secondary schools and, thus, student performance via increased accountability for schools, school districts, and states. For example, states were required to administer yearly tests in reading and mathematics to public school students and to demonstrate adequate progress toward raising the scores of all students. (In 2015 U.S. Pres. Barack Obama signed into law the Every Student Succeeds Act, which modified NCLB.) Under NCLB the BEA became the English Language Acquisition, Language Enhancement, and Academic Achievement Act.

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Bilingual Education Act | Definition, 1968, Summary, & Facts

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Bilingual Education Act, U.S. legislation (1968) that offered federal grants to school districts for the purpose of creating educational programs for students with limited English-speaking ability. It was the first time that the U.S. government officially acknowledged that such students need specialized instruction.

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1954 - Brown vs Topeka, Kansas Board of Education 

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1954 - Brown vs Topeka, Kansas Board of Education 

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Landmark case calling for an end to segregation in U.S. Schools.

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Brown v. Board of Education | BRI's Homework Help Series

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In Lau v. Nichols, the U.S. Supreme Court affirmed the Department of Education's May 25, 1970, Memorandum, that directed school districts to take steps to help ELL students overcome language barriers and to ensure that they can participate meaningfully in the districts' educational programs.

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Resource Materials for Planning and Self-Assessments

Legal Background

School districts in many parts of the country are experiencing a substantial increase in the enrollment of national-origin-minority students who cannot speak, read, or write English well enough to participate meaningfully in educational programs without appropriate support services. In the absence of specific steps to address the language-related limitations experienced by such students, these students are at risk of losing the educational opportunities provided to students generally.

The Office for Civil Rights (OCR) is responsible for enforcing Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin. In Lau v. Nichols, the U.S. Supreme Court affirmed the Department of Education's May 25, 1970, Memorandum, that directed school districts to take steps to help ELL students overcome language barriers and to ensure that they can participate meaningfully in the districts' educational programs.

Department of Education policies regarding ELL children are reflected in three OCR policy documents. The May 1970 memorandum to school districts entitled "Identification of Discrimination and Denial of Services on the Basis of National Origin" clarifies OCR policy under Title VI on the responsibility of school districts to provide equal educational opportunity to language minority students. The December 3, 1985, guidance document entitled "The Office for Civil Rights' Title VI Language Minority Compliance Procedures" outlines the procedures OCR follows in applying the May 1970 memorandum and the Lau legal standard on a case-by-case basis. The September 27, 1991, memorandum entitled "Policy Update on Schools' Obligations Toward National Origin Minority Students with Limited-English Proficiency (LEP)" is a policy update to be read in conjunction with the May 1970 and December 1985 memoranda. It provides additional guidance for applying the May 1970 and December 1985 memoranda in the context of staffing, transition and/or exit criteria, and program evaluation, as well as to special education programs, gifted and talented, and other special programs.

OCR does not require or advocate a particular program of instruction for ELL students and nothing in federal law requires one form of instruction over another. Under federal law, programs to educate children with limited proficiency in English must be: (1) based on a sound educational theory; (2) adequately supported so that the program has a realistic chance of success; and (3) periodically evaluated and revised, if necessary. These three fundamental principles of federal law are discussed below.

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civil rights; english (second language);

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Developing ELL Programs: Legal Background

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Legal background regarding OCR's role in the development and implementation of a program of services for ELL students.

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Class action to correct the injury to many thousands of public school children who speak Spanish and little or no English and were alleged to suffer discriminatory and inadequate schooling because the instruction offered them was mainly or only in English.

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Listing of landmark Supreme Court cases involving Special Education

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U.S. Supreme Court Decisions

Cases decided by the United States Supreme Court are binding on courts all across the country. As a result, when the Supreme Court interprets a statute or makes a determination in a particular case, all lower courts must use that determination when deciding cases. In some instances, however, the Supreme Court leaves room in a decision that allows individual states to make their own determination - for example, in 2005 the Supreme Court decided that the party requesting a due process hearing under the IDEA has the burden of persuasion to establish his or her claims, but the Court expressly declined to determine whether states may legislate the burden of proof. In 2008, New Jersey enacted a law placing the burden of proof and production in all requests for a due process hearing, whether filed by the parent or the school district, on the school district.

Brown v. Board of Education, 347 U. S. 483 (1954) - In this landmark civil rights decision, the U.S. Supreme Court determined that a separate education for African-American children was not an equal education, concluding that "in the field of public education the doctrine of 'separate but equal' has no place and that 'separate educational facilities are inherently unequal.'" This decision provided parents of children with disabilities and disability rights activists the constitutional foundation to press for equal educational opportunities for all children, including those with developmental and other disabilities.

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982) - This was the first special education case decided by the Supreme Court. In this case, the Court held that an IEP must be reasonably calculated for a child to receive educational benefit, but the school district is not required to provide every service necessary to maximize a child's potential.

Irving Independent Sch. Dist. v. Amber Tatro, 468 U.S. 883 (1984) - The Court held that provision of clean intermittent catheterization was a "related service" under the IDEA and not a "medical service," because the service was necessary for the student to attend school. The services requested did not fall within the medical exclusion because they need not be performed by a physician. The Court noted that "Congress sought primarily to make public education available to handicapped children and to make such access meaningful."

Burlington Sch. Committee v. Mass. Bd. of Ed., 471 U. S. 359 (1985) - The Court established, for the first time, the right of parents to be reimbursed for their expenditures for private special education. This decision (together with the Court's decision in Florence v. Carter) generally stands for the proposition that a school district may be required to reimburse parents for tuition and other expenses related to a private school placement when (1) the IEP and placement offered by the school district were inadequate or inappropriate (in other words, where the school district failed to offer FAPE) (2) the parents' private placement was appropriate for their child's needs, and (3) the balance of the equities favors reimbursement. The Court also explained that in an IDEA dispute, a court has broad authority to fashion appropriate relief considering equitable factors, which will effectuate the purposes underlying the Act, and that the IDEA provides "procedural safeguards to ensure the full participation of the parents and proper resolution of substantive disagreements."

Honig v. Doe, 484 U.S. 305 (1988) - The Court addressed the IDEA's "stay put" provision, explaining that in enacting "stay put", Congress intended "to strip schools of the unilateral authority they had traditionally employed to exclude disabled students ... from school." The Court also noted that the IEP is the "centerpiece of the [IDEA's] education delivery system" and explained that "Congress repeatedly emphasized throughout the Act the importance and indeed the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness."

Florence County School District Four v. Shannon Carter, 510 U.S. 7 (1993) - The Court discussed the standards pursuant to which a parent may obtain reimbursement for a private educational placement. Importantly, the Court determined that reimbursement does not necessarily require that the private school meet the IDEA's definition of free appropriate public education; the private school does not necessarily have to meet the state education standards.

Buckhannon v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835 (2001) - The Court ruled that in order to obtain attorney fees as a "prevailing party," the party must secure either a judgment on the merits or a court-ordered consent decree.

Schaffer v. Weast, 546 U.S. 49 (2005) - The Court held that, absent a state statute to the contrary, the party seeking relief bears the burden of proof in an administrative due process proceeding.

Arlington v. Murphy, 548 U.S. 291 (2006) - The Court held that a provision of the IDEA authorizing "reasonable attorneys' fees for prevailing parents does not authorize the recovery of fees for expert's services.

Jacob Winkelman v. Parma City School District, 550 U.S. 516 (2007) - Here, the Court determined that parents may pursue claims under the Individuals with Disabilities Education Act (IDEA) on their own behalf, as the rights conferred to parents under the Act exist independently from the rights of their child.

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Landmark Cases in Special Education Law - Special Education Lawyer

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In the United States legal system, judicial decisions play an important role in determining what a particular law means. This type of law is known as "case law" and is developed when courts are asked to resolve disputes that are occurring between two or more parties and must interpret what the law means in a given situation.

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Citing its recognition of "the special educational needs of the large numbers children of limited English-speaking ability in the United States," the Act stipulated that the federal government would provide financial assistance for innovative bilingual programs.

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1972 - Mills vs Board of Education for the District of Columbia 

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1972 - Mills vs Board of Education for the District of Columbia 

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The Mills class action lawsuit was brought on behalf of seven school-age children who had been denied placement in a public educational program because of alleged disabilities.

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United States District Court, District of Columbia.

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MEMORANDUM OPINION, JUDGMENT AND DECREE WADDY, District Judge. This is a civil action brought on behalf of seven children of school age by their next friends in which they seek a declaration of rights and to enjoin the defendants from excluding them from the District of Columbia Public Schools and/or denying them publicly supported education and to compel the defendants to provide them with immediate and adequate education and educational facilities in the public schools or alternative placement at public expense.

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2006 - IDEA & ELLs - Part B - Issue Brief

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2006 - IDEA & ELLs - Part B - Issue Brief

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The current IDEA Part B final regulations, released in 2006, continue to support appropriate service delivery to culturally and linguistically diverse (CLD) populations.

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Plaintiffs alleged that handicapped Hispanic children required bilingual-bicultural special education programs and were not being promptly evaluated and placed.

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Jose P. v. Ambach, 557 F. Supp. 1230 (E.D.N.Y. 1983) case opinion from the U.S. District Court for the Eastern District of New York

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Plaintiffs appeal the judgment of the district court finding that the Raymondville Independent School District does not discriminate against Mexican-Americans in its ability grouping and teacher hiring practices, and that the Raymondville Independent School District has implemented an adequate bilingual education program under federal law. For the reasons set forth below, we affirm.

In Castaneda I, we affirmed the district court's conclusion that RISD's bilingual education program is not violative of Title VI. However, we reversed and remanded the district court's findings for RISD on the other issues appealed. We instructed the district court to inquire into the history of RISD to determine whether RISD had in the past discriminated against Mexican-Americans, and to consider whether the vestiges of such past discrimination had been erased. The answers to these questions would affect the analysis of Plaintiffs' claims that the ability grouping and employment practices of RISD are tainted by unlawful discrimination. We further directed the district court to conduct a hearing to address the question of the legality of the district's language remediation program under the EEOA, 20 U.S.C. § 1703(f).

On remand, Plaintiffs amended their complaint to name the Texas Education Agency ("TEA") as a defendant, alleging that the TEA had failed to fulfill its duty to assure that Plaintiffs were not subjected to discriminatory practices through the use of state or federal funds and that an adequate bilingual program was implemented by RISD. After a second trial, the district court determined that no vestiges of discrimination remained in RISD and that the ability grouping system of RISD was not discriminatory. The district court also found RISD's recruiting and employment practices to be free from discrimination. Finally, the district court held that RISD's bilingual education program survived scrutiny under the EEOA.

In Castaneda I, we determined that Plaintiffs' challenge to the ability grouping practices of RISD was hampered by the district court's failure to make findings on whether there had been past discrimination by any RISD and whether there remained any lingering vestiges of discrimination within the school district. We observed that

[i]f the district court finds that RISD has a past history of discrimination and has not yet maintained a unitary school system for a sufficient period of time that the effect of this history may reasonably be deemed to have been fully erased, the district's current practices of ability grouping are barred....

Castaneda I, 648 F.2d at 997. Conversely, if RISD were found to have no history of discrimination, or

if despite such a history, the system has achieved unitary status and maintained such status for a sufficient period of time that it seems reasonable to assume that any racially disparate impact of the ability grouping does not reflect either the lingering effects of past segregation or a contemporary segregative intent, then no impermissible racial classification is involved and ability grouping may be employed despite segregative effects.

Id. at 996. We further instructed the district court to examine whether the ability grouping practices operated to confuse measures of language and intelligence; if so, the ability grouping could itself be evidence of a discriminatory intent. Id. at 998.

Our review here of the district court's conclusion that "RISD has been a unitary system for a sufficient period of time that all vestiges have been erased" is controlled by Federal Rule of Civil Procedure 52, which provides that findings of fact "shall not be set aside unless clearly erroneous." Fed. R. Civ. P. 52(a). United States v. Texas Education Agency, 647 F.2d 504, 506 (5th Cir. 1981), cert. denied, 454 U.S. 1143, 102 S. Ct. 1002, 71 L. Ed. 2d 295 (1982) (holding clearly erroneous the district court's finding that a 1970 plan had eliminated all vestiges of the previous dual system and created a unitary school); Calhoun v. Cook, 522 F.2d 717 (5th Cir. 1975) (holding not clearly erroneous the district court's findings that the Atlanta School District was unitary and that the remaining one race schools were not vestiges of past discrimination). See also Tasby v. Wright, 713 F.2d 90, 93 (5th Cir. 1983) (observing that despite upholding the district court's determinations of unitary status as not clearly erroneous in two previous cases, the court would not find the district court's failure to declare unitary status in the instant case clearly erroneous). The clearly erroneous standard bids us to affirm the district court's findings unless, upon review of the record as a whole, we become convinced that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948). As the Supreme Court has recently noted, "if the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently." Anderson v. City of Bessemer, --- U.S. ----, 105 S. Ct. 1504, 1512, 84 L. Ed. 2d 518 (1985). If there are "two permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous." Id.

Public school officials have a continuing duty to eliminate the system-wide effects of earlier discrimination and to create a unitary school system untainted by the past. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S. Ct. 1267, 1275, 28 L. Ed. 2d 554 (1970). In determining whether the past has been effectively eradicated insofar as it remains in the power of school officials and courts to do, "we must keep in mind that each school district is unique." Tasby v. Wright, 713 F.2d at 93 (quoting Ross v. Eckels, 434 F.2d 1140, 1147 (5th Cir. 1970), cert. denied, 402 U.S. 953, 91 S. Ct. 1614, 29 L. Ed. 2d 123 (1971)). The "determination of remedies turns on conditions in a particular district," Ross v. Houston Independent School District, 699 F.2d 218, 227 (5th Cir. 1983), and in "like fashion, the decision that public officials have satisfied their responsibility to eradicate segregation and its vestiges must be based on conditions in the district, the accomplishments to date, and the feasibility of further measures." Id. We now turn to consider the particular situation in RISD examined by the district court.

The high percentage of Mexican-American students attending L.C. Smith at the time of the second trial below, 97.88%, does not necessarily mandate a finding that unremedied vestiges of discrimination yet exist. The Constitution does not after all require "that every school in every community must always reflect the racial composition of the school district as a whole." Swann, 402 U.S. at 24, 91 S. Ct. at 1280. More important, this case presents a situation different from most school cases in that Mexican-Americans make up considerably more than a majority of the students in RISD. A poor district in the Rio Grande Valley, Raymondville's population is estimated to be 77% Mexican-American, with almost all of the remaining 23% Anglo-American. Mexican-American students constitute at least 88% of the student population of RISD. Castaneda II, Plaintiffs' Exhibit 57. Anglo-American students, the majority in most school cases, here represent a mere 12% of the student population. Any chance of true desegregation in this school district would therefore appear impossible. The situation in RISD seems similar to that we addressed in Calhoun v. Cook, 522 F.2d 717 (5th Cir. 1975). In Calhoun, we observed that given the fact that 85% of the students in the Atlanta, Georgia school district were black, the prospects for any intradistrict desegregation of the city schools were bleak. We accordingly upheld the district court's finding that Atlanta's remaining one-race schools were the product of its preponderant majority of black pupils rather than a vestige of past discrimination. Calhoun, 522 F.2d at 719. Similarly, in Ross v. Houston Independent School District, 699 F.2d 218 (5th Cir. 1983), we upheld as not clearly erroneous the district court's finding that the Houston school system was unitary despite a student population at several schools that was heavily Hispanic and black. Here too we cannot find the district court clearly erroneous in failing to find the high percentage of Mexican-American students attending L.C. Smith a vestige of discrimination.

The district court's reliance on the freedom-of-choice plan in finding RISD unitary also does not seem in error. The record reveals that eleven Anglo-American students currently choose to attend L.C. Smith. Castaneda II, Plaintiffs' Exhibit 57. We have in the past found it unnecessary when a freedom-of-choice plan is in effect to divide a remaining small number of whites, already in a minority position, amongst schools. See Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211, 1221 (5th Cir. 1969), rev'd in part sub. nom., Carter v. West Feliciana School Board, 396 U.S. 290, 90 S. Ct. 608, 24 L. Ed. 2d 530 (1970). Of course, Plaintiffs here have not requested that we do so. In fact, Plaintiffs here, as in Ross, have not come up with any proposal that would further desegregate RISD. In Plaintiffs' failure to suggest further means of desegregation we see a tacit recognition that what has been done, even if not perfect, cannot be termed a vestige of discrimination. In sum, we affirm the district court's finding that the benign policies of classroom assignment as augmented by the freedom-of-choice plan are maintaining RISD as a unitary school system.

Plaintiffs next seek review of the district court's failure to find vestiges of discrimination in the ability grouping of students in RISD. In ruling that RISD's ability grouping practices were not discriminatory, the district court implicitly found that the ability grouping practices were not themselves vestiges of discrimination and that the ability grouping did not improperly confuse language and intelligence. Plaintiffs now argue that both these implicit findings are clearly erroneous, that RISD's ability grouping practices continue to discriminate against Mexican-Americans by relying upon English achievement tests as "the decisive factor" in placing students in ability groups.

Plaintiffs' description of RISD's use of English achievement tests contrasts dramatically with that adopted by the district court. We find that the district court's observations on the use of English achievement tests in RISD are supported by the record. At trial, Joe Herod, Curriculum Director for RISD, elaborated upon the district's ability grouping practices. Record Vol. 12 at 478-85. In early elementary grades, a program called "The Early Prevention of School Failures" is in effect. A battery of five tests is given to each student entering kindergarten. These tests are given in the language that the child best understands, English or Spanish. The tests include a language assessment test, a visual motor integration test, a "draw a person" test, and a "Peabody Picture" test. All tests are "developed to assess the maturity of each child as pertaining to their readiness to start academic-type programs in school." Record Vol. 12 at 479. Based on the results of this battery of tests, the students are assigned to a "no risk," "moderate risk" or "high risk" group defining their readiness to learn reading skills. Record Vol. 12 at 480.

In the first grade, criterion referenced tests are administered in English or Spanish. Unlike achievement tests, which attempt to discover how the test-taker compares to the typical or average person, criterion referenced tests have a predetermined standard that must be met. Here, the criterion referenced test indicates which of the students have achieved first grade educational objectives. This test is one factor in the placement of students in the second grade. Record Vol. 12 at 481-82.

In the second grade, for the first time, an English language standardized achievement test is administered during the first weeks of class in order to establish pre-test scores for evaluation taking place at the end of the year. Record Vol. 12 at 482. The test is administered only to students who read and write English. Record Vol. 12 at 483. No grouping in the second grade is based on the English language standardized achievement test. Id.

As explained by Mr. Herod and other witnesses, ability grouping in grades three through eight is based on English achievement test scores, school grades, teacher evaluations and the recommendations of school counselors. Test scores are but one factor used in assigning students to one of the three ability groups. Because there is a preference for assigning students to a higher group, achievement scores may be weighed in the calculus as a secondary factor. For example, if achievement scores are low, but grades high, less weight will be accorded to the achievement scores. Record Vol. 12 at 484. In addition, a Spanish language achievement test is in the process of design and development.

Plaintiffs claim that the depositions of Mr. Herod, Mr. Jerry Jacobs, Superintendent of RISD, and Mrs. Dhelma Anzaldua Jetton, the Director of Curriculum and the Bilingual Program under Mr. Herod, support their contention that English achievement tests are the "decisive factor" in ability grouping. The cited depositions do not, however, add strength to Plaintiffs' contention. In fact, Mr. Herod in his testimony directly contradicts Plaintiffs' characterization of the use of English achievement tests by explaining that the English achievement test is but one factor considered in ability grouping. Deposition of Herod at 38. Mr. Herod observes that teacher recommendations and teacher given grades are also important. Id. at 39. Plaintiffs' reliance on Mr. Jacobs' deposition is particularly mystifying, as Mr. Jacobs in his deposition does not discuss the use of English achievement tests at all except insofar as they had served as a model in developing Spanish language achievement tests. Deposition of Jacobs at 53-55. Mrs. Jetton testified that various factors are considered in exiting students from the bilingual program and placing them in the regular program, and that English achievement tests and recommendations are used in grouping students in the regular program. Deposition of Anzaldua, 1982, at 22, 57; Deposition of Jetton, 1983, at 23-24.

We next address Plaintiffs' charge that the district court erred in finding RISD's employment practices nondiscriminatory. In Castaneda I, we observed that the claim of unlawful discrimination against Mexican-Americans in the hiring or promotion of faculty and administrators should be analyzed under the approach used to assess the merits of traditional class action and pattern and practice employment discrimination suits. Castaneda I, 648 F.2d at 1001. Class action or pattern and practice employment discrimination suits require a statistical comparison between the racial composition of the employer's work force and that of the relevant labor market before a finding of discrimination can be made. In Hazelwood School District v. United States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977), the Supreme Court held that the proper comparison in a case involving school teachers was

between the racial composition of [the district's] teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market.

Hazelwood, 433 U.S. at 308, 97 S. Ct. at 2742. Because the district court here had made no such comparison, we remanded the issue of discrimination in teacher hiring for further findings in accordance with Hazelwood.

Although Plaintiffs on appeal urge that the relevant labor market is located within a 120 degree 40 mile west and south radius of Raymondville, an area which includes Region I, Plaintiffs do not seem to contest directly the district court's determination of the relevant labor market. In fact, Plaintiffs observe that the district court's reliance on Regions I and II "is the relevant labor market which the Plaintiffs proved both through statistical evidence and through the testimony of school superintendents and the former Director of Personnel of Pan American University and the Director of Personnel for Texas A & I University." Appellants' Brief at 14 n. 6 (emphasis in original). Plaintiffs also admit that they "introduced statistics which included Region II further to the north which might provide the defendant RISD with the outer limits of reasonable recruitment based on geographical proximity." Id. at 15.

In any event, even if we were to interpret Plaintiffs to dispute the district court's determination of the relevant labor market, they would not prevail on this claim. The determination of a relevant labor market is one of fact, reviewable only for clear error. Markey v. Tenneco Oil Co., 707 F.2d 172, 174 (5th Cir. 1983) (citing Pullman-Standard v. Swint, 456 U.S. 273, 102 S. Ct. 1781, 72 L. Ed. 2d 66 (1982)). There is ample support in the record for finding that Pan American at Edinburg, Pan American at Brownsville, Texas A & I at Kingsville, Texas A & I at Corpus Christi and Laredo State University constitute the primary source of teachers for south Texas schools. Richard Light, Assistant Superintendent for Personnel at Pharr San Juan Alamo Independent School District, testified that he recruits most of his teachers from Pan American University, Texas A & I and Kingsville. Record Vol. 10 at 8. Marcario Garza, Assistant Superintendent of Personnel at LaJoya Independent School District, also recruits at Pan American, Texas A & I at Corpus Christi, and Texas A & I at Kingsville. Record Vol. 10 at 49-50. Mr. Garza testified that he sends recruiters to Pan American at Brownsville, although he so far has not experienced great success in hiring there. Record Vol. 10 at 49, 57. Mr. Garza also recruits at Laredo State University. Record Vol. 10 at 50, 61. Although Joe Sanchez, Superintendent of Progresso School District, testified that he fulfills almost all his recruiting needs at Pan American at Edinburg, Record Vol. 10 at 36, located within Region I, his testimony does not compel a finding that Pan American and Region I alone should be seen as the relevant labor market. If two permissible views of the evidence are possible, a choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 70 S. Ct. 177, 94 L. Ed. 150 (1949). The district court's determination of the relevant labor market should therefore stand.

After defining the relevant labor market, the district court next considered Plaintiffs' claims under 42 U.S.C. § 1983 (1976), the Equal Educational Opportunity Act of 1974, 20 U.S.C. § 1701 et seq. (1976) ("EEOA"), and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. The court invoked a class action or pattern and practice model of proof, based on the model set forth by the Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). As the district court noted, under the Teamsters model, Plaintiffs' burden was to establish a prima facie case that a policy of unlawful discrimination existed. The burden then shifted to the employer, RISD, to defeat the prima facie showing of a pattern or practice by demonstrating that Plaintiffs' proof was either inaccurate or insignificant. See Teamsters, 431 U.S. at 360, 97 S. Ct. at 1867. The employer's defense "must, of course, be designed to meet the prima facie case." The employer's burden may "provide a nondiscriminatory explanation for the apparently discriminatory result." Id. at 361 n. 46, 97 S. Ct. at 1867 n. 46. Any "nondiscriminatory justification offered by the [employer] will be subject to further evidence by [Plaintiffs] that the purported reason for an applicant's rejection was in fact a pretext for unlawful discrimination." Id. at 362 n. 50, 97 S. Ct. at 1868.

Plaintiffs proved an available labor pool of 55.33% Mexican-American teachers in the relevant labor market. The Mexican-American teachers employed by RISD made up only 39.29% of the faculty. Castaneda II, Plaintiffs' Exhibit 39. The district court deemed the 16.04% statistical differential sufficient to establish a prima facie case of unlawful discrimination. See Teamsters, 431 U.S. at 339, 97 S. Ct. at 1856 (discussing the importance of statistics in proving a prima facie case of employment discrimination). The district court also found, however, that RISD had successfully rebutted Plaintiffs' prima facie case. On appeal, Plaintiffs argue that the district court erred in crediting RISD's rebuttal testimony to find no discrimination.

Plaintiffs' burden here is a heavy one. We will affirm the district court's acceptance or rejection of rebuttal evidence unless clearly erroneous. Payne v. Travenol Laboratories Inc., 673 F.2d 798, 823 (5th Cir.), cert. denied, 459 U.S. 1038, 103 S. Ct. 451, 74 L. Ed. 2d 605 (1982) (finding that the district court's rejection of rebuttal evidence was not clearly erroneous). The district court's finding of nondiscrimination is also factual and must be reviewed under the clearly erroneous standard. Pullman-Standard v. Swint, 456 U.S. 273, 289, 102 S. Ct. 1781, 1790, 72 L. Ed. 2d 66 (1982). As noted in Part II, under the clearly erroneous standard we must accept the district court's factual findings if they are "plausible." If such findings are "plausible," we cannot reverse even though we are "convinced that had [we] been sitting as the trier of fact, [we] would have weighed the evidence differently." Anderson, 105 S. Ct. at 1512.

Keeping the above principles in mind, we turn to a review of the district court's reasoning and the underlying record. The district court relied mainly on two arguments advanced by RISD: (1) that RISD is hindered in its recruiting because several factors render RISD a less desirable place in which to work than are its neighboring school districts, and (2) that RISD engages in substantial recruiting efforts. Before proceeding further, we must initially address an objection Plaintiffs raise to the first argument advanced by RISD. Plaintiffs contend that RISD's reliance on its undesirable living and teaching conditions is "counter-intuitive" here: why would RISD's disadvantages discourage Mexican-American teachers while inexplicably attracting Anglo-American teachers? RISD need not, however, be characterized as maintaining that its poor living and teaching conditions provide a lure for Anglo-American applicants. As the district court observed, the statewide demand for bilingual teachers, Record Vol. 11 at 331-32, places a high premium on native-speaking Mexican-American applicants. Yet the supply of Mexican-American applicants is low. Only 11.425% of the teachers in Texas are Mexican-American. Of this 11.425%, 47% are found in the geographical area corresponding to Regions I and II. Castaneda II, Defendant's Exhibit 5. The high demand is thus coupled with a low supply, and much of the supply is located in the labor market in which RISD must compete. It is therefore not "counter-intuitive" to argue that RISD's efforts to recruit the few highly sought after Mexican-American applicants in the State of Texas may be hampered by its less desirable teaching conditions.

We now must turn to an examination of the undesirable factors upon which RISD relied. As the district court noted, testimony at trial revealed a number of factors which influence the employment decisions of teachers in Regions I and II. Salary, fringe benefits, family ties, working conditions, entertainment and housing are all critical factors. Plaintiffs' expert witness testified that Plaintiffs' statistical prima facie case was prepared under the assumption that the factors affecting desirability of employment were equally present in all given school districts. Record Vol. 10 at 147. To rebut the prima facie case, RISD endeavored to show that the factors affecting desirability of employment were not present to the same degree in all districts, but that, to the contrary, RISD in many ways is a less desirable place to work than are its neighbors. A rural community far from major metropolitan centers, Raymondville offers poor housing and entertainment. Jerry Jacobs, Superintendent of RISD, testified that RISD pays only $900.00 above the state minimum salary, less than the other districts discussed at trial. Record Vol. 12 at 528. RISD hires teachers on a year to year basis: no continuing contract system is used. Record Vol. 12 at 527. Although RISD contributes $27.50 a month toward the health insurance of its faculty, no contribution is so made toward life insurance. Record Vol. 12 at 528. No shuttle bus transportation is provided for teachers. Record at 528. The classrooms on the whole lack air conditioning. Record Vol. 12 at 529.

In order to prove RISD's reliance on its undesirable factors pretextual, Plaintiffs on appeal discuss working and living conditions in several south Texas school districts employing relatively high percentages of Mexican-American teachers. Despite Plaintiffs' conclusion that bilingual Mexican-American teachers flock to school districts "large and small, poor and relatively well off, isolated and prosperous," Appellants' Brief at 23, Plaintiffs fail to convince us that the district court's acceptance of RISD's rebuttal evidence was clearly erroneous.

Richard Light of Pharr San Juan Alamo School District testified that 80-85% of his teachers are Mexican-American, many hired from nearby Pan American University, Record Vol. 10 at 15, 29, which graduates a high number of Mexican-American teachers. Record Vol. 11 at 333-34. Many Pharr San Juan Alamo teachers commute to Pharr San Juan Alamo from Edinburg, McAllen, and Weslaco. Record Vol. 10 at 14, 18, 20. Pharr San Juan Alamo School District, however, also enjoys recruiting advantages denied RISD. In the first place, Pharr San Juan Alamo is located 3 miles from Edinburg where Pan American University is located, only 8 miles from the University itself. Record Vol. 10 at 14. Second, Pharr San Juan Alamo runs a program for student teachers drawn mainly from Pan American University. Record Vol. 10 at 12. Pharr San Juan Alamo hires 40% of its elementary school teachers from its student teacher program, and Mr. Light admitted that the student teacher program gives Pharr San Juan Alamo an advantage over other districts in hiring teachers from Pan American. Record Vol. 10 at 13.

Nor does the district court appear clearly erroneous in its conclusion that "recruiting efforts by RISD are substantial in scope and quantity." Testimony at trial showed that RISD mails vacancy notices in the spring and summer to a large number of schools, and sends on-campus recruiters to various Texas schools, interviewing at Texas A & I and Pan American University at Edinburg and Brownsville. Record Vol. 12 at 503-06. Plaintiffs assert that most recruitment is done by "Anglo-surnamed" personnel. Superintendent Jacobs, however, testified that Mrs. Camargo and Mrs. Jetton, Director of Curriculum and the Bilingual Program at RISD, often recruit at Texas A & I. Record Vol. 12 at 505. Mrs. Jetton, although perhaps now technically "Anglo-surnamed," was born Dhelma Anzaldua: Mrs. Camargo and Mrs. Jetton thus would not seem best characterized as "Anglo-surnamed." In addition, the Director of Student placement at Texas A & I, Johnny L. Johnson, noted that Mexican-Americans had recruited for RISD at Texas A & I. Record Vol. 11 at 350. Romulo Martinez, former placement director of Pan American University, merely could not remember whether or not RISD sent Mexican-Americans to recruit at Pan American University. Record Vol. 11 at 333.

RISD mails recruiting letters directly to students graduating in high demand fields such as bilingual education. Record Vol. 12 at 506. The district sends applications and letters to all teachers making inquiries. Although Plaintiffs complain that RISD fails to keep accurate records, the record again does not bear out this contention. The trial transcript indicates that RISD retains all letters mailed to placement offices and to applicants, and is able to compute the number of applications produced by such letters, and the number of applicants ultimately hired from the pool. Record Vol. 12 at 539-40. When asked what else RISD could do to attract Pan American students, Mr. Martinez ventured only, "pay more money. Its hard to pay more money. Or furnish housing." Record Vol. 11 at 329. Mr. Johnson voiced a similar opinion when asked what RISD could do to recruit more A & I students: "other than get their salary up a thousand or so or two thousand above the schools within that geographic area. I can't think of anything." Record Vol. 11 at 349. We therefore do not find the district court clearly erroneous in concluding that RISD engages in substantial recruiting for new teachers without regard to ethnic origin.

Finally, Plaintiffs contend that the district court failed to consider evidence of individual cases of discrimination which would have given probative weight to the Plaintiffs' statistical proof of discrimination on a class-wide basis. Since the district court upheld Plaintiffs' prima facie case, we do not find error in its failure to address each individual claim in order to bolster Plaintiffs' prima facie case. We observe, in addition, that the district court's first opinion in this case did examine the individual claims and found them lacking; thus, it is doubtful that these claims would have given "probative weight" to the statistical case in any event. Moreover, the district court's failure to discuss explicitly all the facts in the record that Plaintiffs feel supported their claim of discrimination is not clearly erroneous. We may reverse a district court's finding under the clearly erroneous standard only if, after reviewing the record as a whole, we are left with the definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948). This requirement that we review the record as a whole precludes any argument that grounds for reversal can be found by merely pointing out facts which the court did not explicitly discuss even if these facts cut against the district court's interpretation. Fowler v. Blue Bell, Inc., 737 F.2d 1007, 1013 (11th Cir. 1984). After reviewing the record as a whole, we are satisfied that the district court was not clearly erroneous in finding that RISD had rebutted Plaintiffs' prima facie case and in concluding that RISD does not discriminate against Mexican-Americans in hiring teachers. IV.

Although Plaintiffs framed their complaint in terms of a Sec. 1703(f) violation, on remand they took the position before the district court that the appropriate program to be implemented by RISD under Sec. 1703(f) is the bilingual program provided by state law. In their brief upon remand below, Plaintiffs informed the court that an important aspect of our decision in Castaneda I had been modified by the subsequent passage by the Texas Legislature in 1981 of the Texas Bilingual Education Act, Tex.Educ.Code Sec. 21.451 et seq. (Vernon Supp.1985), and its rules and regulations. The Act is popularly known as Senate Bill 477. Record Vol. 1 at 117. Plaintiffs "submit [ted]" that the state law "is the appropriate standard against which to judge the RISD program in terms of its appropriateness for purposes of the EEOA, 20 U.S.C. § 1703(f)." Record Vol. 1 at 118. The district court accordingly examined RISD's bilingual program under the requirements of state law and concluded that as RISD was in compliance with state law, it passed muster under Sec. 1703(f). Because of Plaintiffs' position before the district court, our review here must center on RISD's compliance with state law. We by no means imply, however, that a state must provide a program of bilingual education to all limited English speaking students in order to satisfy Sec. 1703(f) of the EEOA. We hold fast to our conviction, voiced in Castaneda I, that in enacting Sec. 1703(f), Congress intended to leave state and local educational authorities a substantial amount of latitude in choosing the programs and techniques they would use. Castaneda I, 648 F.2d at 1009. If Plaintiffs had not taken the position before the district court that they did here, our review of a school district's compliance with Sec. 1703(f) would be different.

At the time of the first trial below, only one-half of the teachers employed in the bilingual education program at RISD were Mexican-American and native Spanish speakers. Castaneda I, 648 F.2d at 1005. The other teachers in the program received their knowledge of Spanish (a 700 word vocabulary) and their understanding of the theories and methods of bilingual education from a 100 hour course designed by the TEA. Because the record indicated that "some of the teachers employed in the RISD bilingual program [had] a very limited command of Spanish," we entertained "serious doubts about the actual language competency of the teachers employed in bilingual classrooms by RISD." Id. at 1012-13. Therefore we instructed the district court on remand to attempt to identify more precisely the cause or causes of the Spanish language deficiencies experienced by some of the RISD teachers and to require an improved in-service training and evaluation program. Id. at 1013.

On remand, the district court observed that the facts had changed significantly since the record was compiled in the first trial. The district court found that of the twenty-seven teachers employed by RISD in the 1983-84 school year, sixteen had been hired since the date of the original trial in June 1978. The district court found that twenty-three out of the twenty-seven teachers employed by RISD in 1983-84 were native speakers of the Spanish language, contrasting dramatically with our observations based on the 1978 record in Castaneda I. The remaining four teachers were "proficient in Spanish." Plaintiffs claim that the district court was clearly erroneous in so finding, and allege that the record indicates many RISD teachers "who readily admitted their own language limitations and inability to use Spanish beyond a kindergarten level." Plaintiffs' Brief at 34. RISD must evaluate these teachers, Plaintiffs argue.

We do not agree. Our review of the record from the second trial below leads us to the conclusion that the district court was not clearly erroneous in finding the current RISD teachers to be fluent or proficient in Spanish. Jerry Jacobs, Superintendent of RISD, testified to the Spanish language capabilities of each teacher. Record Vol. 12 at 517-21. Mr. Raymond Magallanes, Education Program Director of the Bilingual Education division at the TEA, visited at least fourteen of the bilingual classrooms and found the teachers to be proficient in Spanish. Record Vol. 12 at 420, 426-28. His opinion corroborated the testimony of Jacobs. In addition, since 1979, bilingual teachers must have "professional level oral and written proficiency in the language of the target population as measured by an examination approved by the Texas Education Agency." Castaneda II, TEA Exhibit 1. The record indicates that fifteen out of the twenty-seven RISD bilingual teachers in 1983-84 were hired after TEA implemented this evaluation requirement. Taken together, the above evidence indicates that the RISD bilingual teachers were fluent or proficient in Spanish.

Plaintiffs' cited evidence fails to undermine the district court's findings. We have dutifully read the depositions cited by Plaintiffs to support their claim that many teachers admitted their inability to use Spanish. Of the eight depositions mentioned in Plaintiffs' brief, however, five reveal teachers testifying not that they had language limitations, but instead that they were native speakers of Spanish. A sixth teacher testified that she had learned Spanish as a child and considered herself bilingual. Admittedly enough, two teachers confessed to a lack of proficiency in Spanish. These two teachers, however, no longer teach in the bilingual program at RISD and were not included in the 1983-84 bilingual staff evaluated by the district court.

Of course, fluency in Spanish does not alone constitute an adequate bilingual teacher. Although our directive to the district court to ensure an adequate teacher training program in RISD was premised in part on our perception that the RISD teachers then employed lacked proficiency in Spanish, in-service teacher training procedures are necessary even to native speakers of Spanish to develop and hone the skills necessary to be an adequate bilingual teacher. Since Plaintiffs took the position below that state law is the appropriate model against which to measure RISD's program and progress, we next consider whether the district court was correct as a matter of law in finding RISD's training procedures to be in compliance with state law.

Under state law, each school district is to provide not fewer than eight days in each school year for in-service training or preparation of teachers. Tex.Educ.Code Sec. 16.052(a) (Vernon Supp.1985). Of these eight days, the regulations provide that at least five are to be devoted to in-service training. After Castaneda I, Superintendent Jacobs journeyed to Austin to consult with experts for suggestions, ideas and support in developing a good in-service training program. Record Vol. 12 at 515. From August 1982 to March 1983, Irma Infante, an instructor in bilingual education courses at Pan American University in Edinburg, visited RISD at least five times to lead in-service training sessions. Her main purpose was to improve RISD's Spanish language instruction in "content" areas, such as social studies, science, and math. A 1982 TEA visit had identified native language "content" instruction as an area requiring improvement. Ms. Infante led question and answer sessions to discover teacher needs, developed units of instruction in various content areas to serve as models and give the teachers a "starting point," and worked with the teachers, allowing them to place priorities upon the topics about which they wished to learn more. Record Vol. 11 at 351-61. Ms. Infante was accompanied by another instructor at Pan American University, Eva Corano. Record Vol. 11 at 355. We cannot say that the district court erred in holding that these programs satisfy state law requirements. In addition, although Mr. Magallanes had not yet made his final follow-up visit to RISD at the time of the second trial, he testified that RISD's progress had been "excellent" and that he expected the program now to be in compliance with state law and comparable to the regular educational program provided non-bilingual children. Record Vol. 12 at 422. Given the above, we affirm the district court in finding RISD's bilingual program to be in compliance with state law.

Our review on appeal is not to determine whether RISD has taken every possible step to improve the education of its Spanish-speaking students, but only to decide whether the district court's conclusion that RISD has met the requirements of the fourteenth amendment, Title VI and the EEOA is supported by the record. Most of the district court's findings bear the imprimatur of Rule 52(a). We are not persuaded that the court's findings lack record support or that RISD has violated its duty under the fourteenth amendment, Title VI or the EEOA.

For the above reasons, the judgment of the district court is AFFIRMED.

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Elizabeth and Katherine Castaneda, by Their Father and Nextfriend, Roy C. Castaneda, et al., Plaintiffs-appellants, v. Mrs. A.m. "billy" Pickard, President, Raymondvilleindependent School District, Board of Trustees, Etal., Defendants-appellees, 781 F.2d 456 (5th Cir. 1986)

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Elizabeth and Katherine Castaneda, by Their Father and Nextfriend, Roy C. Castaneda, et al., Plaintiffs-appellants, v. Mrs. A.m. "billy" Pickard, President, Raymondvilleindependent School District, Board of Trustees, Etal., Defendants-appellees, 781 F.2d 456 (5th Cir. 1986) case opinion from the US Court of Appeals for the Fifth Circuit

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Nice summary of the rights of ELs

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1. Failure to enroll a child who resides in the school's geographic boundaries due to the child's or parents' immigration status could be interpreted as a violation of federal law.

TRUE. Title VI of the Civil Rights Act of 1964 prohibits discrimination in public schools on the basis of race, color or national origin. The U.S. Supreme Court also ruled in Plyler v. Doe (1982) that such discrimination violates the Equal Protection Clause of the 14th Amendment.

2. Parents can "opt out" of having their child receive ELL services.

TRUE. Even if families opt out of ELL services, the student must still be assessed for proficiency annually. This refers to federal law; state laws may differ.

3. Schools do not have to screen ELL students for advanced programs, such as Gifted/Talented, Advanced Placement and International Baccalaureate.

FALSE. Screenings must be inclusive and provide language accommodations.

4. ELL students can't be considered for eligibility in special education while they are receiving ELL services.

FALSE. A school cannot delay a special education evaluation because a student is receiving ELL instruction.

5. Once a student leaves an ELL program, they do not have to be monitored.

FALSE. All students must be monitored for two years after exiting an ELL program.

Here are words and acronyms you should know when working with English language learners.

Characterizing Students

English language learner (ELL): A student who is in the process of acquiring English language skills; also referred to as an English learner (EL). The U.S. Department of Education specifies ELL as the most appropriate term because it privileges accomplishments over deficits.

Limited English proficient (LEP): A federal term referring to a person whose primary language is other than English and who has limited English proficiency in one of the four domains of language proficiency-speaking, listening, reading and writing. This term is commonly used to describe non-English-speaking parents and families of students. Many social justice educators do not use this term because it characterizes students and their families based on a deficit rather than a strength.

Other Terms Commonly Used in Schools

Educators tell us that these are terms to pay attention to:

Culturally and linguistically diverse students: Often used to describe a base of students in a school or district who may or may not need ELL services; characterizes multilingualism as an asset.

Language-minority students: Describes students who speak a language other than the majority language at their school but is often used to refer to students who do not speak English, taking on a meaning that devalues multilingualism.

Students of English for speakers of other languages (ESOL): Predates and is commonly interchanged with ELL but is often used to "other" ELL students.

Students of English as a second language (ESL): Considered outdated, as it downplays the value of multilingualism.

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How much do you know about the rights of English language learners?

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This is a carousel. Use Next and Previous buttons to navigate

A decision issued by a Texas Education Agency hearing judge ruled in favor of a local family over the Conroe Independent School District in regards to their son's special education needs.

Mark and Amber Fusca chose to pursue the hearing when they felt they were no longer making progress with the school or district administration while trying to get CISD to recognize their sixth grade son, Hayden, as autistic, and get him the accommodations he needs.

Despite the family having a diagnosis of autism for Hayden, the district would not offer him special education accommodations for autism in his Individualized Education Plan, they said.

The Fusca's legal complaint stated that CISD was violating Hayden's rights under the Individuals with Disabilities Education Act, a federal law to ensure that all students with disabilities have the opportunity to receive a free and appropriate public education.

Both parties argued their case in front of hearing officer Kathryn Lewis last year.

"The hearing officer concludes the district failed to identify Student as a student with autism and failed to appropriately evaluate his eligibility as a student with a specific learning disability," according to the official decision from Lewis. "The hearing officer further concludes student's educational program was not reasonably calculated to provide him a (Free Appropriate Public Education)."

On yourcouriernews.com: Parents say Conroe ISD is violating son's special ed rights

According to the ruling, the Fuscas are entitled to compensation for the private educational services they paid for because they were not receiving those services at CISD. Hayden is entitled to revisions to his IEP, and to an independent evaluation paid for by the district to make recommendations "regarding autism-specific behavioral interventions in the school environment."

Among several items, Lewis ordered that CISD convene an admission, review, and dismissal committee meeting no later than March 22 to accept Hayden's eligibility as a student with autism, and to modify his IEP to include an autism supplement. Lewis also ordered that the district provide Hayden compensatory education services over the summer.

"We are pleased with the decision of Judge Lewis and hope this ruling will give Hayden the help and support he needs to not only succeed in school but life as well," Mark and Amber said in a statement to the Courier. "We hope this case will also be the catalyst to change the culture inside Conroe ISD in respect to the needs of students requiring Special Education."

The Fusca's chose to make their hearing public so that members of the CISD community, including families who have had similar issues with the district, could watch.

"This ruling means - among other things - that the child's educational needs as a student with Autism will finally be formally recognized and he is now eligible for special education and related services to address those needs through the state's Autism Supplement," Henry Bostwick, the Fusca's lawyer for the case, said in a statement.

"Conroe ISD respects the decision of the hearing officer and will work with the family to meet the needs of their child," Sarah Blakelock, CISD spokesperson, told the Courier in an email.

The district has 90 days to file if it chooses to appeal the decision. If appealed, the case would move to federal court. The Fuscas have already stated that they are willing to take this case as far as it goes if the district chooses to appeal.

"Judge Lewis' ruling is thorough and, frankly, airtight. I have no doubt it would survive on appeal," said Bostwick. "Nevertheless, the family intends to put forward an offer to resolve the matter consistent with the educational needs of their child and a concern for the costs of further litigation to the community."

jamie.swinnerton@chron.com

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Judge rules against Conroe ISD in special ed rights lawsuit

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This is a carousel. Use Next and Previous buttons to navigate A decision issued by a Texas Education Agency hearing judge ruled in favor of a local family over the Conroe Independent School District in regards to their son's special education needs.

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The Dear Colleague letter of 2015 is the most recent and important piece of legislation in my opinion of our decade, (century?)  The underpinnings of this document are reflected throughout the Every Student Succeeds Act, and are the outline for successful EL programs in every state.    Posted by Kim Peterson  5/10/22

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The Dear Colleague letter of 2015 is the most recent and important piece of legislation in my opinion of our decade, (century?)  The underpinnings of this document are reflected throughout the Every Student Succeeds Act, and are the outline for successful EL programs in every state.    Posted by Kim Peterson  5/10/22

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Increasing Diversity of Educators in Chicago to Improve Student Outcomes

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Increasing Diversity of Educators in Chicago to Improve Student Outcomes

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https://chicago.chalkbeat.org/2022/9/13/23351591/chicago-public-schools-depaul-university-recruit-retain-teachers-federal-grants

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Two new initiatives to recruit and support aspiring teachers at some of Chicago's highest-need public schools are getting an infusion of federal cash.

Chicago Public Schools and DePaul University are receiving a collective $2.5 million from the U.S. Department of Education, part of a broader grant program to support innovative ways of enlisting, preparing, and retaining more educators, especially teachers of color.

The district's program aims to offer more help and guidance to student teachers - educators-to-be working on district campuses while they pursue licensure - at high-poverty, hard-to-staff schools across the city.

DePaul University is gearing up to place 800 new teachers - career-changers and recent graduates in fields other than education - to teach special education, math, and other hard-to-fill roles at high-need neighborhood schools over the next five years.

The department announced the grants this week as U.S. Secretary of Education Miguel Cardona and First Lady Jill Biden set out on a weeklong bus tour to showcase promising pandemic recovery efforts, including those to address teacher shortages.

District officials said in a statement that its new student teacher program will work to recruit and retain more veteran teachers of color to pair with novice teachers in the classroom, offering added support and mentoring to both groups. The effort aims to build on existing programs to create a pipeline for more diverse educators, including Teach Chicago Tomorrow, which steers district students toward careers in education.

The district credited Teach Chicago Tomorrow, among other efforts, with increasing the portion of new teacher hires who are Black or Latino to roughly half of all new educators this school year.

"We know that teachers make a profound difference in our students' lives everyday and that impact can be even greater when a teacher looks like and understands their students," district spokeswoman Mary Ann Fergus said in a statement.

Teacher and staff turnover is a perennial challenge for the district.

After increasing the number of staff positions during the pandemic and seeing retirements and resignations in some roles pick up, CPS saw a slight uptick in the number of unfilled positions at the start of the school year. It reported an almost 5% vacancy rate, compared with almost 3.5% during the first week of the 2021-22 school year.

Here and in other districts, certain teaching positions - particularly those in special education, science, math, and others - remain tough to fill. In addition, recruiting and retaining male Black and Latino teachers has continued to be a challenge: Latino men, for example, make up about 5% of Chicago's teachers, even as Latino boys account for almost a quarter of all students.

The federal money awarded this week from the Teacher Quality Partnership grant program seeks to address these issues, supporting efforts in which school districts and teacher prep programs partner more closely. This fall, 22 initiatives nationally received a total of $24.8 million in five-year grants, including a teacher residency program in Colorado.

"These programs help prepare, place, develop, and retain effective teachers and leaders in our schools and classrooms," Cardona said in a statement. "Our students need quality educators now more than ever to address their academic and mental health needs."

The federal departments of education and labor recently sent a joint letter to district and state education leaders across the country urging them to step up efforts to tackle teacher and support staff shortages. The letter called for setting competitive wages for educators, including by using federal COVID relief dollars, though it is not clear how districts might sustain wage increases once that one-time funding runs out.

Chicago's new Pre-Service Teaching Equity Project, or P-STEP - the CPS program receiving a roughly $1.1 million Teacher Quality Partnership grant - aims to ensure schools work more closely with faculty at local college teacher preparation programs to support student teachers. In partnership with Chicago State University, Northeastern Illinois University and DePaul, the program will focus on pairing veteran teachers of color with those student educators and better supporting the mentors as well as the new teachers. The goal: more diverse novice educators qualified to teach hard-to-staff subjects accepting permanent jobs with the district.

The DePaul program, in tandem with the Academy for Urban School Leadership and CPS, is also setting out to recruit and place more Black and Latino teachers in hard-to-staff positions at district schools serving 70% or more low-income students.

Starting next fall, the aspiring teachers will participate in a residency model, receiving mentorship from a veteran teacher at one of 25 district schools and working to complete master's degrees in education and get their teaching licenses. The project is setting itself a goal of retaining at least 85% of first-year teachers in schools with higher-than-average vacancies.
Mila Koumpilova is Chalkbeat Chicago's senior reporter covering Chicago Public Schools. Contact Mila at mkoumpilova@chalkbeat.org.

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In Chicago, new efforts to recruit novice teachers, with federal cash

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Two new initiatives to recruit and support aspiring teachers at some of Chicago's highest-need public schools are getting an infusion of federal cash. Chicago Public Schools and DePaul University are receiving a collective $2.5 million from the U.S. Department of Education, part of a broader grant program to support innovative ways of enlisting, preparing, and retaining more educators, especially teachers of color.

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Kelly Heyboer | NJ Advance Media for NJ.com

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Kids who speak limited English are ‘invisible’ in N.J. schools, report says

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Using Google Translate isn’t an effective way for school districts to educate students who don’t speak English, says a new report calling for a major overhaul of the bilingual education system.

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2011 - Feds Prompt Massachusetts to Require ELL Training for Teachers

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2011 - Feds Prompt Massachusetts to Require ELL Training for Teachers

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Massachusetts will take steps to require training for teachers who teach academic content to English language learners. More than 45,000 teachers across the state will need this "continued training".

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The Massachusetts Board of Elementary and Secondary Education voted Tuesday to take steps to require special training for teachers who teach academic content to English-language learners after a U.S. Department of Justice investigation found the state had violated students' civil rights, largely by placing too many of them in classes with inadequately prepared teachers.

Massachusetts Commissioner of Education Mitchell D. Chester will develop and propose new regulations to the board by February 2012. The regulations will "define the preparation and training that teachers must have in order to instruct ELL students in academic content, along with a plan for implementing the new regulations," according to a release from the Department of Justice. They are anticipated to be made available for public comment in March 2012 and to undergo a final review by the Board in June 2012.

According to the federal investigators, the state education department reported this year that more than 45,000 teachers in 275 school districts across the state "continued to need training" in teaching English-language learners. The Justice Department's July 22 letter says the problems stem from the implementation of the state's sheltered-English-immersion program, in which ELLs may spend some time learning English as a second language but get all their content instruction in English. Certification is required for teachers of ESL classes, but training for content-area teachers is not mandated, is often difficult for teachers to obtain, and is potentially out of date, according to the federal agency.

The state education department "failed to take appropriate action" by not mandating training in the program it had chosen, wrote Emily H. McCarthy, the deputy chief of the federal agency's educational opportunities section.

The Board's September 27 resolution specifies that the new regulations must define the contents and delivery methods of an improved program and mandate training in that improved program for all teachers of ELLs.

The Justice Department had previously investigated ELL programs in Boston, Worcester, and Somerset, Mass., and launched its statewide investigation after concluding that shortcomings there were related to state policy. ( "Boston Settles With Federal Officials in ELL Probe," Oct. 1, 2010.)

Mr. Chester said that new training requirements would be enacted through licensure and relicensure standards for teachers. Richard Stutman, the president of the Boston Teachers Union, said the union agreed with the federal findings and "had always supported training" teachers of English-language learners: "We think the state should mandate the training and assist districts in paying for it."

However, funding that training may be an issue. According to the federal agency's letter, the state education department requested $1 million in state funds in the 2009 fiscal year to help deliver sheltered-English-immersion training to teachers but received less than half that amount that year.

At least 50,000 Massachusetts teachers serve English-language learners in their classrooms, according to state officials. Commissioner Chester said that while Massachusetts' student population has hovered near 1 million, the proportion of ELLs has continued to rise, continually increasing the need for more training. About 68,000 ELLs are currently students in Massachusetts' public school system. "We have been very, very focused on ELLs in the almost four years that I've been here," he added.

Roger L. Rice, the executive director of Multicultural Education, Training, and Advocacy, of Somerville, Mass., said that the Justice Department was "absolutely correct in finding a massive civil rights violation" in Massachusetts and that, as the report indicates, the program itself should be evaluated, not just the number of teachers who are trained. In a state that prides itself on academic achievement, he noted, "ELL kids are not closing the achievement gap."

The current system is the result of a 2002 state ballot initiative that replaced bilingual education with sheltered-English immersion and "up-ended the infrastructure for serving ELLs," Mr. Chester said. He added that evidence did not clearly demonstrate whether the current program or its predecessor had been more successful, but he pointed to a slow increase in ELL students' scores over time on state exams.

Search for Best Methods

Mr. Stutman said his union was "distressed" to hear of the report's finding that the training might not be high-quality. "That suggests that some of the training"-which took more than 80 hours-"may have been in vain," he said. The Justice Department's September 27 release specifically acknowledges the "efforts of districts, teachers and their unions to participate in the current SEI training even in the absence of a state mandate."

The Justice Department's Ms. McCarthy said the federal agency's expectations for the state were clear: "The state's obligation under EEOA [the Equal Education Opportunities Act] is to ensure that the program it mandates is implemented appropriately. If you don't have the teachers trained, obviously you can't implement the program. But if you mandate training that doesn't allow teachers to implement the mandated program, that's also a problem."

Mr. Chester said his agency would address these concerns by searching for the "best methodologies and approaches" to teaching ELLs. In the meantime, Massachusetts teachers will continue teaching the state's ELL students using the system currently in place.

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Feds Prompt Massachusetts to Require ELL Training

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The Massachusetts Board of Elementary and Secondary Education voted Tuesday to take steps to require special training for teachers who teach academic content to English-language learners after a U.S. Department of Justice investigation found the state had violated students' civil rights, largely by placing too many of them in classes with inadequately prepared teachers.

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1974 Equal Educational Opportunities Act 

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1974 Equal Educational Opportunities Act 

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"The Civil Rights Act of 1964 is the landmark legislation prohibiting discrimination in several areas including housing, employment, and education.

Additionally, the Equal Educational Opportunities Act of 1974 prohibits, among other conduct, deliberate segregation on the basis of race, color, and national origin.

Section 1703(f) of the EEOA requires state educational agencies (SEAs) and school districts to take action to overcome language barriers that impede English Language Learner (ELL) students from participating equally in state and district educational programs. As part of its efforts to enforce the EEOA, the Section investigates complaints that SEAs or school districts are not providing adequate services to ELL students or are failing to take appropriate action in other ways.

Examples of conditions that may violate the EEOA include when a school district or SEA does the following:

6. fails to provide language acquisition assistance to ELL students because they receive special education services, or fails to provide special education services to ELL students when they qualify for special education services;and
7. excludes ELL students from gifted and talented programs based on their limited English proficiency."

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The Civil Rights Division, Educational Opportunities Section enforces several federal civil rights laws which prohibit discrimination on the basis of race, color, national origin, language, sex, religion, and disability in schools and institutions of higher education. Below we describe the types of cases we address.

Race and/or National Origin Discrimination

The Civil Rights Act of 1964 is the landmark legislation prohibiting discrimination in several areas including housing, employment, and education. The sections of the Act relating to education are Title IV, which authorizes the Attorney General to address certain equal protection violations based on race, color, national origin, sex, and religion in public schools and institutions of higher education; Title VI, prohibiting discrimination by recipients of federal funds on the basis of race, color, and national origin; and Title IX, permitting the United States to intervene in pending suits alleging discrimination. Additionally, the Equal Educational Opportunities Act of 1974 prohibits, among other conduct, deliberate segregation on the basis of race, color, and national origin.

The Educational Opportunities Section is involved in numerous desegregation lawsuits against public elementary and secondary school districts (as well as one state higher education system) where we seek to ensure that state-sponsored segregation is eradicated. Additionally, each year we are involved in numerous investigations and cases addressing discrimination and harassment on the basis of race and national origin. For examples, view the cases list.

Sex-Based Discrimination

Title IV of the Civil Rights Act of 1964 authorizes the Attorney General to address certain equal protection violations based on sex, among other bases, in public schools and institutions of higher education. Additionally, Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in education programs and activities operated by recipients of federal financial assistance. Pursuant to these statutes the Educational Opportunities Section works to ensure that all persons regardless of their sex are provided equal educational opportunities. The Section's work includes addressing sex-based discrimination, including sexual harassment, harassment based on not conforming with gender stereotypes, and unequal athletic participation opportunities for students. For examples, view the cases list.

Religious Discrimination

Title IV of the Civil Rights Act of 1964 authorizes the Attorney General to address certain equal protection violations based on religion, among other bases, in public schools and institutions of higher education. The Educational Opportunities Section works to ensure that all persons regardless of their religion are provided equal educational opportunities. The Section's work includes addressing discrimination and harassment on the basis of religion, and spans all religious affiliations. For examples, view the cases list.

English Language Learner students

The Section is charged with enforcing the Equal Educational Opportunities Act of 1974 (EEOA). Section 1703(f) of the EEOA requires state educational agencies (SEAs) and school districts to take action to overcome language barriers that impede English Language Learner (ELL) students from participating equally in state and district educational programs. As part of its efforts to enforce the EEOA, the Section investigates complaints that SEAs or school districts are not providing adequate services to ELL students or are failing to take appropriate action in other ways.

Although section 1703(f) of the EEOA does not require schools to adopt a particular type of language acquisition program, courts generally consider three factors to assess the adequacy of such a program:

1. whether the school's program is based upon sound educational theory or principles;

2. whether the school's program is reasonably calculated to implement the educational theory effectively; and

3. whether, after a period of time sufficient to give the program a legitimate trial, the results of the program show that language barriers are actually being overcome.

Examples of conditions that may violate the EEOA include when a school district or SEA does the following:

1. fails to provide a language acquisition program to its ELL students or fails to provide adequate language services to its ELL students;

2. fails to provide resources to implement its language acquisition program effectively (e.g., an ESL program lacks ESL teachers or ESL materials);

3. fails to take steps to identify students who are not proficient in English;

4. exits ELL students before the students acquire English proficiency from ELL services;

5. fails to communicate meaningfully with non-English-speaking or limited-English-speaking parents and guardians of ELL students by not providing such parents and guardians with written or oral translations of important notices or documents;

6. fails to provide language acquisition assistance to ELL students because they receive special education services, or fails to provide special education services to ELL students when they qualify for special education services;and

7. excludes ELL students from gifted and talented programs based on their limited English proficiency.

For examples, view the cases list

Disability Discrimination

The Educational Opportunities Section addresses disability discrimination in several ways, including through its desegregation cases and its English Language Learner (ELL) matters. For example, in the desegregation context, the Section examines if minorities are disproportionately under or over identified. In the ELL context, the Section ensures that dually identified ELL and special education students receive all services to which they are entitled.

The Americans with Disabilities Act (ADA) was enacted in 1990 to address discrimination against persons with disabilities (see also the ADA homepage). Title II of the ADA provides that no individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of a public entity, or be subjected to discrimination by any such entity. Title III of the ADA prohibits discrimination on the basis of disability in public accommodations, such as schools, operated by private entities. The Civil Rights Division has primary responsibility for enforcing Title III as it relates to education and shares responsibility for investigating Title II complaints with the Department of Education.

Section 504 of the Rehabilitation Act of 1973 prohibits the exclusion, the denial of benefits, and discrimination by reason of disability in programs or activities receiving federal funds. OCR has primary responsibility for enforcing Section 504's provisions with respect to its recipients of federal funds.

The Individuals with Disabilities in Education Act (IDEA) requires States and local education agencies to provide a free and appropriate public education to children with disabilities. The Department of Education has primary responsibility for enforcing IDEA. The Civil Rights Division gets involved in 504 cases through referrals from the other federal agencies, complaint investigations or compliance reviews of recipients of DOJ funding, and in 504 and IDEA cases through participation in pending lawsuits. For examples, view the cases list.

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The Civil Rights Division, Educational Opportunities Section enforces several federal civil rights laws which prohibit discrimination on the basis of race, color, national origin, language, sex, religion, and disability in schools and institutions of higher education. Below we describe the types of cases we address.