doj letter to al state superintendent (5/1/12)

8/2/2019 DOJ Letter to AL State Superintendent (5/1/12)

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Office of he Assistant Attorney General

Via U.S. and Electronic MailDr. Thomas R. BiceState Superintendent ofEducationState Department ofEducation5114 Gordon Persons BuildingMontgomery, AL 36130Dear Superintendent Bice:

u.s. Department of JusticeCivil Rights Division

Washington, D.C. 20530

MAY 0 1 2012

Thank you for your responses to our requests for information related to elementary andsecondary school attendance in the Alabama public schools. We appreciate your continuedcooperation with our inquiries, as well as your willingness to meet with us. We have valued theinput 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 ourinvestigation, 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 bythose data, which are consistent with what we have heard from school teachers andadministrators, 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 withinvestigating potential violations of federal civil rights laws that protect educationalopportunities 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 onany impermissible ground. As you know, we are currently reviewing whether the state ofAlabama's school enrollment policies and practices, pursuant to Alabama's immigrationlegislation ("H.B. 56"), comport with federal civil rights laws, including Title IV of the CivilRights 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 etseq. ("EEOA"), and applicable constitutional law.


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- 2-Based on our investigation to date, including our initial analysis of the data that theAlabama State Department ofEducation has provided, it appears that H.B. 56 has had significantand measurable impacts on Alabama's schoolchildren, impacts that have weighed most heavilyon Hispanic and English language learner ("ELL") students. Although these impacts may havebeen most acute in the period that 28, the provision on elementary and secondary schoolenrollment, was in effect, our investigation suggests that the legislation overall has hadcontinuing and lasting consequences in the education context.As you know, H.B. 56 was signed into law on June 9,2011, and 28, among otherprovisions, went into effect on September 29,2011. On October 14,2011, 28 was enjoined bythe United States Court ofAppeals for the Eleventh Circuit. The data you provided show thatabsence rates for White, African American, and Hispanic students were fairly static prior to theenactment ofH.B. 56 and in previous school years. But in the immediate aftermath of 28'simplementation, Hispanic student absence rates tripled while absence rates for other groups ofstudents remained virtually flat. The Hispanic absence rate immediately after 28 went intoeffect 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 byHispanic students receiving ELL services rose significantly, with the result that hundreds ofstudents failed to receive the educational services to which they are legally entitled. Althoughabsence rates eventually declined, this pattern strongly supports the conclusion that it was theimplementation of the law that caused these dramatic effects.With respect to withdrawals, the data show that compared with prior school years, therate of total withdrawals of Hispanic children substantially increased. The data reflect thatbetween the start of the school year and February 2012, 13.4 percent ofAlabama's Hispanicschoolchildren withdrew from school.Our interviews with students, parents, teachers, and administrators substantiate thepicture presented by the state-provided data, and further support the conclusion that thelegislation has had continuing effects on Alabama's schoolchildren even after it was enjoined bythe court. They confirm that H.B. 56 and 28 diminished access to and quality of education formany of Alabama's Hispanic children, resulted in missed school days, chilled or prevented theparticipation of parents in their children's education, and transformed the climates of someschools into less safe and welcoming spaces for Hispanic students.Many Hispanic students reported staying home from or withdrawing from school out offear that they would be questioned regarding their immigration status, or that of their familymembers. Hispanic students further reported being singled out to receive notices or attendassemblies about H.B. 56, based on their actual or perceived national origin or immigrationstatus. Despite the fact that 98.7% ofAlabama K-12 public school students are U.S. citizens'and98.3% are born in the United States, many students conveyed that H.B. 56 and 28 made themfeel unwelcome in schools they had attended for years. Hispanic children reported increasedanxiety and diminished concentration in school, deteriorating grades, and increased hostility,bullying, and intimidation. Teachers and administrators reported the detrimental impacts onstudents, from student absences to precipitous drops in academic engagement and performance.


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- 3 -Teachers and administrators also described their efforts to respond to calls from fearful parentsand to console and provide guidance to students whose family members or friends had departedor disappeared.

We are continuing to evaluate and gather information, but the facts described above mayimplicate the statutes we enforce. DOJ enforces Title IV, which prohibits discrimination againststudents in the public schools on the basis of race, sex, religion, color, and national origin. DOJis also the coordinating authority for the enforcement of Title VI, which bars discrimination onthe basis of race, color, and national origin in programs and activities that receive federalfinancial 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 onthe 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 schoolsand 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 equaleducational opportunity to an individual on account of his or her race, color, sex, or nationalorigin, by . . . the failure by an educational agency to take appropriate action to overcomelanguage 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 meaningfulaccess 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 herimmigration 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 otherstudents did not "comport with fundamental conceptions of ustice." Id. at 220. On May 6,2011, DOJ and the U.S. Department ofEducation issued joint guidance on this obligation underfederal law and the U.S. Constitution to provide equal educational opportunities to all studentswithin each school district. This May 6 letter also clarified that, pursuant to Title VI, schooldistricts cannot request information with the purpose or the result of denying students access tothe public schools on the basis of race, color, or national origin; nor may they chill or discouragestudents from attending public educational programs based on their or their parents' nationalorigin or actual or perceived immigration status.

As the Supreme Court stated in Plyler, "it is doubtful that any child may reasonably beexpected 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 onequal terms." Plyler, 457 U.S. at 223. We look forward to continuing to work with you, andwith teachers, parents, students, and other stakeholders across the state, to protect schoolchildrenand ensure that all students' rights to an education are properly enforced as required by Federalstatutes and the Constitution of the United States; We would welcome an opportunity to discuss


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- 4 -this matter further with you. If you have questions or concerns, please contact AnurimaBhargava, Chief of the Educational Opportunities Section of the Civil Rights Division, at (202)514-4092.

cc: Whit ColvinLarry Craven

Sincerely,

Thomas E. PerezAssistant Attorney General

doj letter to al state superintendent (5/1/12)

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