Policy Update on Schools' Obligations Toward National Origin Minority Students With Limited English Proficiency (September 27, 1991).    [full text]

This memorandum allows for a case-by-case determination of a district’s compliance with Title VI.  The criteria were determined in the case Castañeda v. Pickard and are based on the Equal Educational Opportunities Act of 1974.  The basic requirement is that if there is a need for an alternative program for language minority students, it should be effective in meeting their educational needs.  There are several qualifications of these requirements, most notably that the Office of Civil Rights (OCR) itself does not make a decision about effectiveness, but relies on the judgment of “experts”.  An “expert” is defined as: someone whose experience and training expressly qualifies him or her to render such judgments and whose objectivity is not at issue.

In addition, the “mere absence” of any measures to determine whether or not there is a need for a program does not constitute non-compliance.  Informal methods are quite acceptable, especially in districts with very few language minority students, so long as they outline the program and the rationale behind it.  There are requirements that the staff
be appropriately trained and that adequate resources be provided for.  Limited resources do not justify non-compliance but remedies should not divert them from other services.  Any alternative program set up by a district must also be evaluated and modifications must be made if they are needed.

The memorandum provides very little in the way of concrete rules that must be followed, but allows several ways in which districts can delay or avoid charges of  non-compliance.  The qualifications on the policy are broad and various, summed up by the assertion that “the OCR does not require a program that places unrealistic expectations on a district.”  The simple aim of the policy is for districts to provide a “strategy that works – or promises to work”.  There is no attempt to define any expectations that might be imposed by the OCR, however, or any standards for determining if a program “works.”