Federal Guidance on Title VI vs. OSPI WACs

On October 1, 2014, the U.S. Department of Education Office for Civil Rights issued a Dear Colleague Letter. Dear Colleague letters are the Office of Civil Rights’ efforts to provide guidance for schools on what is needed to comply with federal laws. In this case, the letter focused on legal obligations under Title VI of the Civil Rights Act of 1965, which prohibits discrimination on the basis of race, color, or national origin.

The timing of this letter is interesting for in Washington, OSPI just went through a rule-making process on our state law that corresponds with the federal law. The proposed WACs are discussed in this blawg. So how do our state regulations compare to the federal guidance? As I noted in the prior blawg, the WACs are woefully inadequate to address remedying the discrimination that exists in our public schools. The Dear Colleague letter and guidance provide clear examples of the issues the WACs should have addressed (technology, teaching, etc.)

The Dear Colleague Letter starts by setting the stage, identifying history and present of unequal access to educational resources. It also discusses some of the factors that can be hard to measure that impact school success, including quality of building, experienced level of teachers, instructional materials and technology, and differences in teacher salaries. The WACs do not discuss this, although arguably that is what was discussed in the law and the WACs do not need to discuss this.

Then the Letter discusses intentional discrimination and identifies the following analysis for determining whether a school district intentionally discriminated in the allocation of its resources:

  1. Did the school district treat a student, or group of students differently with respect to providing access to educational resources as compared to another similarly situated student, or group of students, of a different race, color, or national origin (a prima facie case of discrimination)?
  2. Can the school district articulate a legitimate, nondiscriminatory, education reason for the different treatment? If not, OCR could find the district has intentionally discriminated on the basis of race. If yes, then:
  3. Is the allegedly nondiscriminatory reason a pretext for discrimination? If so, OCR would find the district has intentionally discriminated on the basis of race.

Then the letter discusses disparate impact. School districts also violate Title VI if they adopt facially neutral policies that are not intended to discriminate based on race, color, or national origin, bud do have an unjustified, adverse disparate impact on students based on race, color, or national origin. OCR applies the following analysis for disparate impact:

  1. Does the school distract have a facially neutral policy or practice that produces an adverse impact on students of a particular race, color, or national origin when compared to other students?
  2. Can the school district demonstrate that the policy or practice is necessary to meet an important educational goal? In conducting the second step of this inquiry OCR will consider both the importance of the educational goal and the tightness of the fit between the goal and the policy or practice employed to achieve it. If the policy or practice is not necessary to serve an important educational goal, OCR would find that the school district has engaged in discrimination. If the policy or practice is necessary to serve an important educational goal, then OCR would ask:
  3. Are there comparably effective alternative policies or practices that would meet the school district’s state educational goal with less of a discriminatory effect on the disproportionately affected racial group; or is, the identified justification a pretext for discrimination? If the answer to either question is yes, then OCR would find that the school disctrict had engaged in discrimination. If no, then OCR would likely not find sufficient evidence to determine that the school district had engaged in discrimination.

One of the major distinctions between this commentary and the proposed WACs is that several changes in the WACs make it sound like OSPI was trying to eliminate the disparate impact standard. That seems contrary to the intent of the state law to create a system that has fewer protections than the federal law.

Then the Letter goes on to discuss school funding. Again, the letter provides more guidance then the WACs.

A. Courses, Academic Programs, and Extracurricular Activities

The WACs have a limited discussion saying that no district shall provide any coursework based on a protected status. The Dear Colleague Letter requires that students have access to, and enroll in rigorous courses are more likely to go on to complete postsecondary education. It also notes that OCR will assess the types, quantity, and quality of programs available to students across a school district to determine whether students of all races have equal access to comparable programs both among schools and among students within the same school.

The Dear Colleague Letter discusses extracurricular activities, especially those that have been shown to support college and career readiness and high academic rigor, and states they must be offered on a nondiscriminatory basis. It notes that there will be a quantitative and qualitative review. The WAC only discusses recreational and athletic activities and states that no one be denied participation in based on a protected class. The focus in the WAC is based on athletics and demonstrates that it is the holdover from the state version of Title IX and providing equal athletic opportunities for girls.

The Dear Colleague Letter captures the intent of the legislation that was passed in Washington, it shows a demonstrated effort to outline for schools how to view their programs and make sure they are provided on a nondiscriminatory basis. It is not detailed and it won’t provide all the answers, but unlike the WACs, it makes an effort.

B. Strong Teaching, Leadership, and Support

The WACs don’t address the problem of the impact of teachers on education. The Dear Colleague Letter does and it notes that ensuring that schools have effective and stable teachers is a major component of ensuring that a school district does not discriminate based on race, color, or national origin. They will oook at turnover rates, teach qualifications, and experiences, school leadership, and support staff.

C. School Facilities 

Again because the WACs use as a starting point the Sex Discrimination WACs and did not actually try to examine the issue of what it means to address discrimination based on additional factors, the only reference to facilities is with regard to recreational and athletic activities. The Dear Colleague Letter addresses school facilities in terms of (1) physical environment – schools should be structurally sound and well-maintained; (2) Types and Design of Facilities – laboratories, auditoriums, and athletic facilities – must be provided on an equal basis.

D. Technology and Instructional Materials

When the WACs were originally written technology was a not an issue, the internet didn’t exist. So when they were simply modified by tacking on the additional protected classes to the existing sex discrimination regulations, there was no consideration of technology – so it’s no surprise the WACs are silent on the issue of technology. The Dear Colleague letter provides guidance that OCR will consider the number, type, and age of educational technology devices will be assessed in determining whether they are provided without regard to race, color, or national origin. They will also look at the size, content and age of a schools library collection considering quantity and quality of materials.

Prevention 

The WACs essentially limit proactive surveys and monitoring to athletics and recreational activity. The guidance of the Dear Colleague Letter notes that the assessment must be broader than recreational and athletic facilities – school districts need to compare how educational benefits and burdens are allotted.

Conclusion

The Dear Colleague letter makes it clear that OSPI is not providing sufficient guidance to assist schools in creating nondiscriminatory schools. A school that relied on the understanding that our state tries to go further in the protection of students than the federal government and relied on the WACs would fail to meet the federal standards.