Title VI

Introduction *

Title VI prohibits discrimination in federally funded programs on the basic of race, color, or national origin.   While on the face of it that doesn’t seem to have particular relevance for special educational services, in reality it is hugely relevant in cases involving the identification and placement of children who speak English as a second language.   Those obligations are summarized in a ten page pamphlet, but OCR has spent a considerable amount of time and energy investigating allegations of discrimination in special educational programs, particularly with respect to African Americans and children with limited English proficiency.

Congress itself has repeatedly expressed concern about disproportionate representation of minority groups in special education, although discrimination in the public schools can and does take many forms, including (but not limited to) under representation in gifted programs, disciplinary discrimination, and failure to address harassment based on race, religion, or national origin.

Congress wrote in the IDEIA of 2004

(12)(A) Greater efforts are needed to prevent the intensification of problems connected with mislabeling and high dropout ratess among minority children with disabilities. ‘‘(B) More minority children continue to be served in special education than would be expected from the percentage of minority students in the general school population. ‘‘(C) African-American children are identified as having mental retardation and emotional disturbance at rates greater than their White counterparts. ‘‘(D) In the 1998–1999 school year, African-American children represented just 14.8 percent of the population aged 6 through 21, but comprised 20.2 percent of all children with disabilities. ‘‘(E) Studies have found that schools with predominately White students and teachers have placed disproportionately high numbers of their minority students into special education.

The statute goes on to address disproportionality 8 more times.  The 2006 Final Regulations mention disproportional representation 42 times.   The regulations implementing Congressional intent are found in Section 300.646 of the 2006 FR for the IDEA. Neither the IDEA nor the IDEA 2006 Final Regulations  supplant the requirements of Title VI.  OSEP and OCR have both indicated that the elimination of disproportionality in the identification of minority and ELL children as “disabled.”    Perhaps the best work product developed by OCR on this topic with relevance for school psychologists is an archived document on The Use of Tests for High Stakes Decision Making.    The goal of that guidance was to reduce the inappropriate labeling of ELL children as disabled because of their difficulties in English.  Some

The obligations of states and school districts with regard to testing of limited English proficient students for high-stakes purposes in elementary and secondary schoolsmust be examined within the overall context of the Title VI obligation to provide equal educational opportunities to limited English proficient students. Under Title VI, school districts have an obligation to identify limited English proficient students and to provide them with an instructional program or services that enables them to acquire English-language proficiency as well as the knowledge and skills that all students are expected to master.50 School districts also have a responsibility to ensure that the instructional program or services provide limited English proficient students with a meaningful opportunity to acquire the academic knowledge and skills covered by tests required for graduation or other educational benefits

Enforcement of Title VI is an OCR responsibility, but OSEP has  the lead role in answering questions about disproportionality as addressed in the IDEA.   OCR has had the lead role, however, in investigating complaints about disproportional representation and disparate impact in the public schools.  As detailed below, the resources schools have dedicated to resolving complaints investigated by OCR under Title VI have been substantial.

Resolutions of Title VI School Complaint Investigations *

When a Title VI complaint is lodged with an OCR regional office, OCR opens an investigation into that complaint.  It is OCR’s policy that if a “voluntary” resolution is reached between the school and the complainant, it will close its investigation.   However, OCR retains a copy of the agreement in its files (available on-line) and continues to monitor until the complainant confirms that the terms of the agreement have been met.  Usually, the main burden on school systems responding to an OCR investigation is the time required to provide OCR with the details it requires to evaluate the complaint.  Since OCR’s investigations are extensive, the material they request can be far ranging, so that burden is by no means insignificant.

“The Office for Civil Rights (OCR) is providing access to recipient resolution letters with agreements reached on or after October 1, 2013. The letters and agreements cover aspects of laws OCR enforces. You have access to all currently uploaded documents that meet OCR’s document upload criteria. Additional documents will be posted on a continual basis.

Title VI, of course, covers a great deal more than just disparate representation in special education classes.  OCR also investigates charges of under representation in gifted classes and disparate treatment of students with respect to discipline based on race, religion or national origin.  The ten Title VI cases reported by OCR since 2015 are listed below with links and key words.   OCR letters (including those below) routinely advise the parties that the letter ” is not a formal statement of OCR policy, and should not be relied upon, cited, or construed as such,” that retaliation against complainants is forbidden, and that the complainants have a right to “file a private suit in federal court whether or not OCR found a violation.”   Additionally, OCR letters routinely specify a time frame for monitoring compliance, usually one year, after an agreement is reached, but sometimes longer.

Each of the letters belows provides in detail the standards OCR used in reaching its conclusions.

Burlington School District, Colorado.  Letter to Satterly, February 4, 2014.  2 pages
Key Words:  ELL students, segregation in placement, drop-out rates, pregnant school girls, children with disabilities, Title II, Title VI
Resolution:   Voluntary Resolution Agreement to resolve issues with complainant.  The 7 page agreement details the data to be provided with respect to ELL, pregnant school girls, children with disabilities, and compensatory educational services.

San Carlos School District, California.  Letter to Baker, March 6, 2014.  11 pages
Key Words: Title VI, Title II, Section 504.  Retaliation allegation, Use of recording device
Resolution:  District’s actions constituted retaliation.  District agreed to disseminate policies regarding retaliation, to educate its staff regarding retaliation, to compose and send a letter to the complainant regarding its actions.  Also see the Resolution Agreement.

Hamlin Independent School District, Texas.  Letter to Cartwright, August 4, 2014.  13 pages
Key Words:  Title VI, racial discrimination, racially offensive language,l disparate application of discipline based on race
Resolution:   OCR concluded use of the word “nigger” created a hostile education environment, that they could not establish disparate treatment in the disciplinary process, but that they confirmed disparate treatment of the second student with respect to discipline.  District agreed to train staff and students as to what constituted discriminatory behavior, to appoint someone to receive student complaints, providing counseling for students exposed to racist language and behavior, and to expunge the disciplinary record of the student improperly disciplined.  Also see the Resolution Agreement.

Newark Public Schools, NJ.  Letter to Cerf, December 9, 2013.  7 pages
Key Words: Title VI, IDEA, Section 504 Allegation that closure of thirteen schools was racially discriminatory
Resolution:  A voluntary resolution agreement was signed that required the school system to assess students, to review the transportation system, to assess school capacities, to convene IEP and 504 Committees to review students’ plans and to insure they received FAPE.   For details, see the Resolution Agreement.

BASIC DC Charter School; Letter to Aiken, November 7, 2013.  15 pages.  Addressed three separate complaints.
Key Words: Title VI, Title II  Discrimination based on national origin, race, and disability.
Resolution:  No discrimination with respect to remedial programs.  Violations of Section 504 included the school’s program manager (PM) making unilateral decisions about aids and services, accommodations of extended time without specifying the amount of time, and an accommodation of “flexible scheduling” that not only wasn’t defined but could not be defined by the PM.  A voluntary resolution agreement was reached to resolve those issues.

Platteville School District, Resolution Agreement, 2013. 11 pages.
Key Words:  Title VI, discrimination based on race
Resolution:  District agreed to post policy, establish contact person to report racist behavior, revise disciplinary code, establish unform standards for discipline folders,  train all school employees, hold training sessions for students, employees, and parents to explain new policies, and consider compensatory education for two students.  For additional details, see the Resolution Agreement.

Sun Prairie School District, Wisconsin. Letter to Culver, November 8, 2013.  9 pages
Key Words:  ” The compliance review assessed whether the Sun Prairie Area School District (District) discriminated against African American students, on the bases of race and/or disability, in the pre-referral/referral and evaluation of these students for special education and in their placement in special education.”
Resolution:   African American students were disproportionately represented in the District in the special education categories of CD, EBD, LD, and OHI.

Because this case has particular bearing on how school psychologists go about their business, more details of the settlement are being provided below than in other cases, where readers are simply referred back to the actual letters.  In this writer’s opinion, and consistent with other OCR investigations and findings as far back as the turn of the century, if the school system had implemented a three tiered system of interventions, consistent with an RTI methodology, this situation could have been avoided.  Disparate impact may suggest discrimination, but in and of itself does not constitute or prove discrimination.  In this case, the school could not show it had made sufficient effort to address African American children’s need in general education.  Hence, the reason why, the school voluntarily agreed to resolve the dispute.

“The Agreement requires the District to take steps to ensure that it is providing an equal opportunity for African American students to receive assistance in the regular education setting prior to consideration for placement in special education, and that students of all races are treated equitably in the special education evaluation process. Pursuant to the enclosed Agreement, the District committed to take specific actions. According to the Agreement, the District will hire an expert with expertise in addressing the overrepresentation of minority students in special education to review the District’s procedures and make recommendations as to what measures the District should take to ensure that it is making appropriate determinations and to address the overrepresentation of minorities in special education and the root causes of this overrepresentation. The District will also develop and implement a plan for a universal screening process to identify students in need of extra assistance as early as possible, will ensure that every school in the District has implemented systematic, team-based means of providing intervention strategies for students experiencing academic or behavior difficulties, and will review and revise its materials regarding intervention strategies distributed to District personnel, parents/guardians, students, and other stakeholders. Additionally, the District will develop written policies and procedures, which include the extent to which informal classroom interventions should be attempted prior to referral to the building-level teams, circumstances for referring students to the teams, and oversight to ensure consistency in each school.

In addition, the District will provide professional development to all teaching staff designed to increase awareness of the overrepresentation of African American students in special education and emphasize the purpose and significance of placement in special education, training to all staff on the use of the screening process, professional development to all members of each school’s building-level team on the intervention process and on intervention strategies for students, and professional development to all teachers about the purpose, procedures, process, and documentation of the building-level team. Further, the District will also review special education records of all students to assess whether the most recent eligibility decisions were appropriate, then will take appropriate action in response, including promptly providing all necessary compensatory and/or remedial services to address any deficits results from the improper placement of the student. Finally, the District will maintain data and use the data and other information gathered during the implementation of the Agreement to annually evaluate the effectiveness of its screening, intervention, evaluation, and placement processes and will also analyze data related to the provision of teamprescribed interventions and data related to teacher referrals of elementary school students to the building-level team, to determine whether students of all races and national origins were treated equitably.”  

For even more details, see the Settlement Agreement.

Roanoke Public Schools. Resolution Agreement.  2014  3 pages
Key Words:  Title VI, Field trips
Resolution: The district would revise its policies and standards on field trips; and that it would schedule two field trips a year for the Gospel Choir; and hire a Director for the Gospel choir. For additional details, see the Voluntary Resolution Agreement.
Also see: Letter to Bishop, September 3, 2014 notifying the superintendent of the outcome of the investigation.

Austin  Independent School District, Letter to Cruz, 2014.   10 pages
Key Words;   Title VI, discrimination based on disability (Title II) and national origin, retaliation, Section 504
Resolution:  Most of the allegations were closed due to the complainant having filed a similar complaint  with the state education agency.  OCR won’t investigate if another state or federal agency is involved.   Other issues were resolved in a voluntary agreement or had already been resolved.  OCR found no systemic violations of Section 504.  (Link to Agreement not found.)

Royse City School District, Texas.  Letter to Worthy, August 20,2014 4 pages
Key Words:  Title VI, discrimination based on race or nationality, residency
Resolution:  Insufficient evidence to substantiate discrimination claim

Resolution Agreement, Confluence Acadmies, 2014.   3 pages
Key Words:  Title VI, racial discrimination in placement practices in grade 3-8
Resolution:  District agreed to revise its placement policies to insure that they do not result in racially isolated classrooms

Prince William County Schools, Va, Letter to Walts, July 29, 2014  9 pages
Key Words:  Title VI, racial discrimination with respect to restraint and seclusion practices.
Resolution: OCR found that the program was being administered contrary to school policies, that Hispanics were under represented, but that both whites and African Americans were over represented.   The district agreed to implement procedures to ensure that the program was administered in accordance with district policies (only to be used when students posed an imminent danger to themselves or others, not just when they were being disruptive.)  Resolution agreement not found.

In its archived publication on High Stakes Testing, OSEP wrote:

Disparate impact itself does not necessarily mean that discrimination has taken place, but it does trigger an inquiry regarding the educational justification of the challenged practice. 

In the same document, they said:

The legal nondiscrimination standard regarding neutral practices (referred to by the courts as the “disparate impact” standard) provides that if the education decisions based upon test scores reflect significant disparities based on race, national origin, sex, or disability in the kinds of educational benefits afforded to students, then questions about the education practices at issue (including testing practices) should be thoroughly examined to ensure that they are in fact nondiscriminatory and educationally sound.

The key phrase in the paragraph above is “educationally sound.”  The letter below illustrates the lengths to which OCR is prepared to go in order to determine whether policies resulting in “disparate impact” were “educationally sound.”

Elk Grove United School District, CA, Letter to Ladd, July 24, 2014. 25 pages!
Key Words:   Title VI, racial discrimination in gifted and honors program
Resolution:  Basically, OCR found the district guilty of “unlawful disparate impact” with no intention to discriminate.  For school psychologists, the finding that the district allowed the use of the NNAT but that it was never used may be of interest.   The district had identified practices previous to the investigation that had been effective and included “(1) proactive enrollment efforts, such as encouraging incoming ninth graders to enroll in honors during their freshman year, targeting students on the “academic bubble” and automatically enrolling them in honors or AP courses; (2) reducing administrative barriers and unnecessary prerequisites and criteria, (3) having a specific schoolwide focus on reducing disproportionality in honors enrollment; and, (4) schedule flexibility and having enough available seats for all interested students.”  They had also paid PSAT fees for those who could not afford to take the test, which was also effective in reducing disparate impact, but eliminated the program three  years earlier because of budget cuts. In brief, OCR found that the district’s exclusionary policies were not necessary to reach an educational goal, and the district agreed to take seven (7) additional steps to reduce disparity.  Also see the Resolution Agreement.

Other resolutions found elsewhere on OCR’s website:

Voluntary Resolution of Kentucky’s Christian County Public Schools Discipline Investigation.  February 24, 2014.  “OCR’s investigation revealed that the majority of the violations listed in the district’s disciplinary code were open to interpretation and undefined, leaving administrators broad discretion in assigning sanctions. This practice left students and their parents and guardians without adequate notice of the specific behaviors that may result in discipline and what sanction would be imposed. In addition, the district had no safeguards in place to ensure that discretion is exercised by referring teachers and other staff in a non-discriminatory manner.”

OSEP Letters Regarding Disproportionate Representation and  Disparate Impact *

In chronologial order . . .

Letter to Anonymous, March 3, 1998  Reports on a Case Resolution between OCR and New York City.

After a two-year study in New York City, OCR determined that there were disproportionately high numbers of African-American and Hispanic students in special education. In 1997, the OCR and the New York City Board of Education signed an agreement that requires that New York City reduce these disproportionately high numbers. For information about this agreement, you may contact the regional office of OCR that serves New York at 75 Park Place, New York, NY 10007; the telephone number of the Director is 212-637-6332. Further, some additional protections against over-identification of minorities were included in the Individuals With Disabilities Education Act Amendments of 1997. These additional protections included the requirement that each local educational agency shall ensure that all tests and other evaluation materials used to assess a child under this section are selected and administered in the child’s native language or other mode of communication, unless it is clearly not feasible to do so (§614(b)(3)(A) (I)(ii)); and, in making a determination of eligibility (for special education placement and services), a child shall not be determined to be a child with a disability if the determinant factor for such determination is lack of instruction in reading or math or limited English proficiency. (§614(a)(5))

Letter to Richardson, September 19, 2001.   The question here was in regard to two lawsuits, Mr. Richardson asking whether the costs of implementing the settlement and legal fees could be paid with Part B funds.   The answer was that activities that would ordinarily be carried out to meet the mandates of the IDEA could be paid for out of Part B funds but that the fees and expenses of expert witnesses and attorney fees could not be paid out of Part B.  Additionally, activities to address the under representation of African American children in the gifted program could not be paid for out of Part B money.

Letter to Redacted, January 14, 2002.   The recipient of this letter had expressed a general concern about over representation.   OSEP’s response, in part, was “OSEP and the Office for Civil Rights (OCR) continue to address disproportionate representation as a priority. OSEP funds important research and technical assistance activities that provide insight into the issues and strategies to resolve these concerns. This research has played a critical role in advancing the knowledge and understanding about how to address the multiple, complex issues concerning minorities and special education. OCR has designated minority students in special education as a priority enforcement issue. Both OSEP and OCR are developing and disseminating resource materials to help prevent and correct disproportionate representation.

Letter to McCabe, February 1, 2008.   McCabe questioned whether OSEP’s interpretation of the statute in Section 300.646 requiring  the reservation of funds for comprehensive coordinated early intervening services upon a finding of significant disproportionality based on race and ethnicity for disciplinary actions, was correct.  OSEP said that they thought it was correct.

Letter to Loose, June 3, 2008.   OSEP was questioned about its position on disproportionality in discipline with respect to children with disabilities.

Our position continues to be, as expressed in our April 24, 2007 Memorandum, that, upon a finding of significant disproportionality based on race and ethnicity for disciplinary actions, States must require the review and, if appropriate, revision of policies, practices and procedures, the reservation of funds for comprehensive coordinated early intervening services and public reporting on the results of any revision of policies, practices, and procedures. In the Analysis of Comments and Changes Thank you for your comments on this important issue. Our position continues to be, as expressed in our April 24, 2007 Memorandum, that, upon a finding of significant disproportionality based on race and ethnicity for disciplinary actions, States must require the review and, if appropriate, revision of policies, practices and procedures, the reservation of funds for comprehensive coordinated early intervening services and public reporting on the results of any revision of policies, practices, and procedures. In the Analysis of Comments and Changes section in the preamble to the final regulations (71 FR 46540), we indicated that the “State’s review of its constituent LEAs’ policies, practices, and procedures for identifying and placing children with disabilities would occur in LEAs with significant disproportionality in identification, placement, or discipline, based on the examination of the data.” In that analysis, we took the position that disciplinary actions are a type of placement in an educational setting, and that the requirements in 34 CFR §300.646(b) should cover disproportionality with respect to disciplinary actions.

Letter to Runkel, November 4, 2008.   The questions here were about how disproportionality should be calculated.  OSEP indicated that the states had some discretion but “The discretion to choose an appropriate methodology for determining significant disproportionality does not extend to altering the analysis categories within that methodology that would result in the exclusion of groups of students from any of those categories.”   OSEP went on to say later in the letter, “It is not permissible for Montana to exclude children who are naturally transitioning from elementary “feeder” school districts to the Billings High School District from its calculations.”  For exceptions approved by OSEP, click on the letter link above.

Letter to Woolsey, June 26, 2012.  This four page letter addressed concerns expressed about how disproportionality was calculated in California and the requirements imposed by 300.646.  Key to OSEP;s response was their belief that ” The requirement that LEAs identified with significant disproportionality use Part B funds for early intervening services is in recognition of the fact that significant disproportionality in special education may be the result of inappropriate regular education responses to academic or behavioral issues. ”  This letter signaled an early expression of OSEP’s intent to move from a compliance focused approach to a results driven approach to this issue.

The Title VI regulations governing public schools enforcement are codified in 34 CFR 100.

OCR’s Complaint Process *

Complaints alleging discrimination under Title VI may be addressed directly to the Office for Civil Rights.  Initiation of the complaint procedure is relatively simple and follows the same process that would be used by parents complaining about a procedural violation under Section 504 or Title IX.

For the convenience of parents and/or other interested parties, OCR has a web page on the OCR Complaint Process in which it tells how to file a complaint, provides directions and links to a complaint form, explains the rights and protections for both complainants and interviewees,   provides a Q and A, and a downloadable copy of their Complaint Processing Manual.