DOJ Letter To AL State Superintendent (5/1/12)
u.s.
Department of Justice
Civil Rights Division
Office of the Assistant Attorney General
Washington, D.C. 20530
MAY 0 1 2012
Via U.S. and Electronic Mail
Dr. Thomas R. Bice State Superintendent of Education State Department of Education 5114 Gordon Persons Building Montgomery, AL 36130 Dear Superintendent Bice: Thank you for your responses to our requests for information related to elementary and secondary school attendance in the Alabama public schools. We appreciate your continued cooperation with our inquiries, as well as your willingness to meet with us. We have valued the input and assistance of your staff, and of school teachers and administrators across the state. You previously requested that we keep you informed regarding the progress of our investigation, and this letter responds to that request. We have completed a preliminary review of the data you provided on April 4, 2012, and write to share the significant concerns raised by those data, which are consistent with what we have heard from school teachers and administrators, and the other information we have obtained in the course of our investigation. We know that the information described below will be of serious concern to you as well. The Civil Rights Division of the Department of Justice ("DOJ") is tasked with investigating potential violations of federal civil rights laws that protect educational opportunities for schoolchildren, and with upholding this country's longstanding legal tradition of ensuring the rights of all students to attend school without being subj ect to discrimination on any impermissible ground. As you know, we are currently reviewing whether the state of Alabama's school enrollment policies and practices, pursuant to Alabama's immigration legislation ("H.B. 56"), comport with federal civil rights laws, including Title IV of the Civil Rights Act of 1964, 42 U.S.C. 2000c-6 ("Title IV"), Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d ("Title VI"), the Equal Educational Opportunities Act, 20 U.S.C. 1701 et seq. ("EEOA"), and applicable constitutional law.
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Based on our investigation to date, including our initial analysis of the data that the Alabama State Department of Education has provided, it appears that H.B. 56 has had significant and measurable impacts on Alabama's schoolchildren, impacts that have weighed most heavily on Hispanic and English language learner ("ELL") students. Although these impacts may have been most acute in the period that 28, the provision on elementary and secondary school enrollment, was in effect, our investigation suggests that the legislation overall has had continuing and lasting consequences in the education context. As you know, H.B. 56 was signed into law on June 9,2011, and 28, among other provisions, went into effect on September 29,2011. On October 14,2011, 28 was enjoined by the United States Court of Appeals for the Eleventh Circuit. The data you provided show that absence rates for White, African American, and Hispanic students were fairly static prior to the enactment ofH.B. 56 and in previous school years. But in the immediate aftermath of 28's implementation, Hispanic student absence rates tripled while absence rates for other groups of students remained virtually flat. The Hispanic absence rate immediately after 28 went into effect was also statistically significantly higher than such rates for the same time period in each of the prior two school years. Further, during the weeks after 28 went into effect, absences by Hispanic students receiving ELL services rose significantly, with the result that hundreds of students failed to receive the educational services to which they are legally entitled. Although absence rates eventually declined, this pattern strongly supports the conclusion that it was the implementation of the law that caused these dramatic effects. With respect to withdrawals, the data show that compared with prior school years, the rate of total withdrawals of Hispanic children substantially increased. The data reflect that between the start of the school year and February 2012, 13.4 percent of Alabama's Hispanic schoolchildren withdrew from school. Our interviews with students, parents, teachers, and administrators substantiate the picture presented by the state-provided data, and further support the conclusion that the legislation has had continuing effects on Alabama's schoolchildren even after it was enjoined by the court. They confirm that H.B. 56 and 28 diminished access to and quality of education for many of Alabama's Hispanic children, resulted in missed school days, chilled or prevented the participation of parents in their children's education, and transformed the climates of some schools into less safe and welcoming spaces for Hispanic students. Many Hispanic students reported staying home from or withdrawing from school out of fear that they would be questioned regarding their immigration status, or that of their family members. Hispanic students further reported being singled out to receive notices or attend assemblies about H.B. 56, based on their actual or perceived national origin or immigration status. Despite the fact that 98.7% of Alabama K-12 public school students are U.S. citizens'and 98.3% are born in the United States, many students conveyed that H.B. 56 and 28 made them feel unwelcome in schools they had attended for years. Hispanic children reported increased anxiety and diminished concentration in school, deteriorating grades, and increased hostility, bullying, and intimidation. Teachers and administrators reported the detrimental impacts on students, from student absences to precipitous drops in academic engagement and performance.
-3Teachers and administrators also described their efforts to respond to calls from fearful parents and to console and provide guidance to students whose family members or friends had departed or disappeared. We are continuing to evaluate and gather information, but the facts described above may implicate the statutes we enforce. DOJ enforces Title IV, which prohibits discrimination against students in the public schools on the basis of race, sex, religion, color, and national origin. DOJ is also the coordinating authority for the enforcement of Title VI, which bars discrimination on the basis of race, color, and national origin in programs and activities that receive federal financial assistance. 42 U.S.C. 2000d. Title VI regulations further bar school districts and 'state departments of education from adopting practices that have the effect of discriminating on the basis of race, color, or national origin. See 28 C.F .R. 42.1 04(b )(2); 34 C.F .R. 1OO.3(b)(2). The EEOA obligates states to take appropriate action to ensure that their schools and school districts are taking affirmative measures to enable ELL students to overcome ' obstacles to access and be served in the schools; under the EEOA, "[nJo State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by ... the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs." 20 U.S.C. 1703(f). Both Title VI and the EEOA also require schools to provide meaningful access to parents with limited English proficiency. Furthermore, the United States Supreme Court held in Plyler v. Doe, 457 U.S. 202 (1982), that a State may not deny a child equal access to public education based on his or her immigration status. Because of the "pivotal role of education" in American society, id. at 221, the Court concluded that denying these innocent children the same access to education as other students did not "comport with fundamental conceptions of justice." Id. at 220. On May 6, 2011, DOJ and the U.S. Department of Education issued joint guidance on this obligation under federal law and the U.S. Constitution to provide equal educational opportunities to all students within each school district. This May 6 letter also clarified that, pursuant to Title VI, school districts cannot request information with the purpose or the result of denying students access to the public schools on the basis of race, color, or national origin; nor may they chill or discourage students from attending public educational programs based on their or their parents' national origin or actual or perceived immigration status. As the Supreme Court stated in Plyler, "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." Plyler, 457 U.S. at 223. We look forward to continuing to work with you, and with teachers, parents, students, and other stakeholders across the state, to protect schoolchildren and ensure that all students' rights to an education are properly enforced as required by Federal statutes and the Constitution of the United States; We would welcome an opportunity to discuss
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this matter further with you. If you have questions or concerns, please contact Anurima Bhargava, Chief of the Educational Opportunities Section of the Civil Rights Division, at (202) 514-4092. Sincerely,
Thomas E. Perez Assistant Attorney General cc: Whit Colvin Larry Craven
