In late March, the Los Angeles Unified School District became the first of at least 32 K12 school districts nationwide to undergo federal compliance reviews intended to spotlight possible discrimination against specific groups of students that has resulted in persistent achievement gaps on standardized tests.
The Office for Civil Rights in the U.S. Department of Education, which has a mission to ensure equal access to education, according to its Web site, hopes to use these compliance reviews to provide technical assistance to help districts improve their performance.
But there are new sticks to go along with this carrot: Federal government funding might be made conditional on corrective actions based on the case and the issues involved, or, eventually, it could be cut off and districts could be sued, says Justin Hamilton, press secretary for the department. The U.S. Department of Justice would handle any legal actions taken. "Nobody's saying that's going to be a commonly used resource," Hamilton says. "But it is a possibility."
The Office for Civil Rights is responsible for ensuring that recipients of federal education funds comply with several federal civil rights laws. It enforces Title VI of the Civil Rights Act of 1964, which protects against racial and ethnic discrimination; Title IX of the Education Amendments of 1972, which prohibits sex discrimination; Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination based on disability; and the Age Discrimination Act of 1975.
Starting with President Ronald Reagan, the civil rights office "had fallen into a pattern of inaction on big issues," according to Cindy Brown, vice president for education policy at the Center for American Progress and a former assistant secretary for civil rights in the Carter administration. Compliance reviews were rarely if ever initiated by the department, she says, and pending issues were dropped.
For example, an investigation of inequitable funding that began under Carter between the University of North Carolina system and historically black, public colleges in the state quickly ended after Reagan took office, and a proposed rule under Title VI to better educate English-language learners in K12 was dropped.
In addition, federal judges appointed by Reagan and his Republican successors have not been nearly as sympathetic to civil rights cases, Brown says. "The kinds of evidence standards we could use back then [in the Carter years], you can't use now," she says. "Civil rights law is very constrained because of judicial appointments."
But then urgency started to build during the Clinton administration, and "serious attention" was paid to standards and accountability, Brown recalls. The office under Clinton spent more time than the previous two administrations investigating the treatment of English language learners and, with the advent of the ADA, the Civil Rights Office had more reasons to advocate for students with disabilities.
At the turn of this century, Hamilton says, the George W. Bush administration investigated formal complaints filed against districts but did not frequently initiate compliance reviews itself.
While the office previously might just have looked to see whether a program for ELLs existed, it will now examine whether the program is achieving results, says Russlynn Ali, assistant secretary for civil rights in the Department of Education. Ali says the office never used its authority to study unintentional discrimination in a "very robust way." But now it will.
The persistence of achievement gaps that leave African American, Latino, Native American and poor children behind, as measured by the No Child Left Behind legislation, prompted the office to bear down on the issue, which Education Secretary Arne Duncan announced March 8 on the Edmund Pettis Bridge in Selma, Ala., where police beat civil rights marchers 45 years ago.
"Civil rights laws require vigorous enforcement not just because they are the law of the land but also because the data paint a stark picture of educational inequality," Duncan said during the announcement.
Department officials say the office will be involved to a degree never before seen. Ali says the depth of the office's investigations will be stronger, and the issues will be more wide-ranging, with a goal of eliminating discrimination based on color, language and/or disability. In addition to intentional discrimination, the office will investigate what Ali calls "seemingly neutral policies and practices that lead to disparate impact in terms of access and results for students of color" and others compared to more affluent students. "This is very much about reaching the president's goal of regaining America's status, by 2020, of leading the world in college graduates," she says. "To us, this is about raising the bar."
Activist groups agree that the Obama administration is pursuing that goal substantially. "There's been tremendous evolution, and we have much better data now," Brown says. "We've come to understand that we have bigger achievement gaps than other countries."
She notes that many other countries fund education nationally, on a weighted basis, to ensure that schools with higher proportions of children in poverty receive greater funding. "No other advanced country funds education the way we do," Brown says. "That might explain the [disparate] results."
She cites results from the Program for International Student Assessment (PISA) test showing that among the Organization for Economic Cooperation and Development countries, there are great gaps between higher and lower socioeconomic status students.
In 2006, the United States had the fourth largest gap between high socioeconomic status students and low SES students in science. The National Council of La Raza supports No Child Left Behind but knows its goals can be undermined at the local level, says Raul Gonzalez, legislative director. "It's a philosophical change from the last administration," he says. "We need something on the ground to make sure that implementation is going the way it should be."
LAUSD is the only school district announced so far under the stepped-up reviews; the 31 others will be named as district officials and local congresspersons are formally notified that the civil rights office has decided to conduct a compliance review, Ali says.
A district's permission is not necessary, since the office has law enforcement authority. "We've sent out notification letters in other places and have yet to hear back," she says. Six colleges and universities also will be reviewed. Los Angeles, which receives more than 23 percent of its $7.16 billion operating budget from the federal government, came under scrutiny due to slow progress by English language learners, who comprise approximately one-third of the district's more than 220,000 students, according to the Los Angeles Times.
Only 3 percent of ELLs test as proficient districtwide, Ali says, although the department has made no judgment on whether discrimination—intentional or unintentional—plays a part in the achievement gaps there. Indeed, interviews with school officials, parents and others have only just begun, she says. "The data do not constitute a [civil rights] violation," Ali says. "But at this point, the data—along with things we've heard from the community, when we've spent time talking with parents and young people— suggest there is a problem."
Ramon C. Cortines, superintendent of LAUSD and assistant secretary for educational improvement under the Clinton administration, says he's glad the civil rights office has stepped up its efforts and welcomes the review of his district. "I'm not pleased with the progress," he says. "We have the data ready for them. The one thing I did ask is that I did not want to wait until the end for the report, that if there were things they felt needed addressed, or questions, that I wanted those on an ongoing basis, so that we could respond."
Cortines does not expect the federal government to find egregious discrimination, but he does expect the district to receive some homework. "I'm just waiting to get this information, and we'll move on it," he says. "With the changing demography of our nation, we need to make sure that with our English language learners we set the standards high."
"Clearly LAUSD, among other school districts, is not making enough progress for ELLs. The fact that they're looking at this in a broad way is important," Gonzalez says.
But Brown notes that budgetary constraints imposed by the state of California have hamstrung LAUSD. "There have been some unfortunate laws in California that have limited options of meeting the needs of English language learners," she says. "Part of that bad budget situation is a reluctance of policy makers to direct resources to kids who most need them, who are victims of discrimination."
Neither Ali nor Cortines would hazard a guess on how long the investigation will take, what remedies might be involved, what the costs to the district could be, or the timeline to comply. "It depends on the size of the district, the complexity of the issues, the relationship in terms of the district's ability or willingness to provide information," Ali says. "We will work with districts to think through nonfiscal remedies as well as fiscal remedies. For us, the cost of doing nothing is so much more."
Ali agrees that LAUSD has been open and helpful thus far. Ali expresses hope that LAUSD and other districts undergoing compliance reviews don't feel threatened by the action. "What we hope is that they see this is about helping students get the education they deserve," she says, "not penalizing districts."
Ed Finkel is a freelance writer based in Evanston, Ill.