Friday, September 30, 2011

Justice Department promotes bad English in U.S. schools

“Facing a possible civil-rights lawsuit, Arizona has struck an agreement with federal officials to stop monitoring classrooms for mispronounced words and poor grammar from teachers of students still learning the English language. . .The state’s agreement with the U.S. Departments of Justice and Education allows it to avoid further investigation and a possible federal civil-rights lawsuit,” notes the Arizona Republic. As legal commentator Walter Olson notes, this is nutty, but it has the apparent support of the nation’s largest teacher’s union, the National Education Association, which passed a “resolution ‘decrying disparate treatment on the basis of ‘pronunciation’ — quite a switch from the old days when teachers” were sticklers for correct pronunciation.

As I noted earlier, the Justice Department has gone even further in other cases, making the sweepingly overbroad and inaccurate claim that discrimination based on accent, pronunciation, or language is a form of racial or national origin discrimination. That argument ignores two federal appeals court rulings that rejected the idea that an employer’s requirement that employees speak English on the job is illegal discrimination. (See Garcia v. Spun Steak Co. (1993) and Garcia v. Gloor (1980).) (When another federal agency, the EEOC, sues private employers for expecting their employees to speak a language their colleagues and supervisors can understand, it claims that the courts should ignore these prior appellate court rulings, and instead follow its own “national origin” guidelines, which treat English-only rules as a form of “national origin harassment” and racially “disparate impact.” Amazingly, trial courts in Massachusetts and elsewhere have accepted this absurd argument, even though the Supreme Court long ago rejected the idea that EEOC guidelines supersede prior court decisions or have the force of law, as it made clear in rejecting EEOC guidelines in its decisions in EEOC v. Arabian American Oil Co. (1991) and General Electric v. Gilbert (1976).)

The Justice Department has overstepped its authority by promulgating “guidelines” requiring accommodation of non-English speakers under Title VI of the Civil Rights Act. The Justice Department guidelines suggest that recipients of federal funds, such as private health care providers, can be liable for “disparate impact” discrimination if they fail to provide translation services for just a single non-English speaker. Influenced by such guidelines, New York Lawyers for the Public Interest has demanded that drugstores hire bilingual interpreters.

But the Justice Department guidelines are legally flawed in two key respects. First, the Supreme Court cast doubt on whether “disparate impact” claims, which do not require a showing of discriminatory intent, are even valid under Title VI in Alexander v. Sandoval (2001), which barred any damage claims or private lawsuits for “disparate impact” under Title VI. Second, it is blackletter law, under cases like Coe v. Yellow Freight (1981), that a claim of unintentional (or disparate impact) discrimination cannot be based on a practice’s effect on just one minority group member in an establishment: there must be a large class of affected people at that establishment. Yet the Justice Department’s guidelines suggest that a health care provider might be liable for not having a translator to accommodate each and every speaker of an obscure language like Hmong that did not even exist in written form until recently.

Even worse, the Education Department, where I used to work as a civil rights attorney, interprets Title VI to require that school districts translate all notices into every conceivable language spoken by even one student or parent using the school system, such as Hmong, and to ignore the cost of oral translations. That is contrary to basic principles of disparate-impact law, which recognize that high cost can be a defense (not even the Justice Department suggests that costs should be ignored), and that an institutional practice that inadvertently harms just a single minority group member is not illegal discrimination unless it systematically excludes members of that person’s minority group.

It is unlikely that the Justice and Education Departments even care that their interpretation of federal civil-rights law is very suspect. The Justice Department has become more politicized under the Obama administration, as droves of left-wing ideologues have been hired; and the Education Department has recently shown contempt for federal court rulings limiting the reach of liability under civil-rights statutes like Title IX (and also contempt for civil liberties such as free speech, and limits on government power).


British middle-class students face fresh squeeze on university places

Middle-class teenagers face missing out on university places next year after institutions were ordered to admit more disadvantaged students. Currently, universities set their own targets on increasing the number of applicants from ‘under-represented’ groups, such as those from low income families.

From today, universities have been ordered to set ‘at least one target’ on increasing the number of such students they actually admit, instead of simply focusing on attracting applications.

The change, demanded by the Office for Fair Access, the higher education watchdog, is a trade-off for being allowed to charge up to £9,000 a year in student tuition fees. Universities could be stripped of the right to charge the higher fees unless they meet the new demand.

Elite universities will face intense scrutiny from OFFA next year as figures show that only one in seven students at Oxford and one in eight at Cambridge qualify for full maintenance grants – available only to poorer students – from the Government.

This compares to more than 50 per cent at Bedfordshire University. All institutions wishing to charge above the basic current fee of £1,285 a year must have an approved ‘access agreement’ in place with OFFA. This lays out the targets set by the university for improving access among ‘under-represented’ groups.

A report for 2009-2010 published today by OFFA found that one in four universities had not yet met their targets. These included universities such as Cambridge, Bristol and Warwick.

Sir Martin Harris, director of OFFA, said he was ‘concerned’ to understand the reasons why the targets had not been met. He added that from 2012-13, OFFA will ‘require institutions to set themselves at least one target around broadening their entrant pool’. Sir Martin went on: ‘Up to now it has been possible for institutions to restrict their targets to broadening their applicant pool’.

But Dr Tim Hands, headmaster of Magdalen College School, Oxford, said: ‘It’s difficult to see that [this] isn’t social engineering. ‘It’s also difficult to see that it won’t affect subjects like engineering, maths and modern foreign languages which the Government has identified as crucial to the economy.’


British schools will be judged on gay and gipsy pupils' progress

Schools will be penalised if they fail to improve the progress of ‘vulnerable’ groups of pupils such as those who are gay, lesbian, bisexual and transsexual.

New Ofsted guidelines reveal that heads of primary and secondary schools must show their education ‘meets the needs of the range of pupils’ in their classrooms, including gipsy and traveller children.

Schools could see their teaching being judged ‘inadequate’ if they do not reduce gaps in achievement between different groups who make up a significant proportion of their student population.
New Ofsted guidelines reveal that heads of primary and secondary schools must show their education ¿meets the needs of the range of pupils¿ in their classrooms, including gipsy and traveller children.

New Ofsted guidelines reveal that heads of primary and secondary schools must show their education 'meets the needs of the range of pupils' in their classrooms, including gipsy and traveller children. Picture posed by models

However, critics hit out at the inclusion of gay, lesbian, bisexual and transsexual pupils in an Ofsted list of groups that could be monitored for signs of progress.

They insist that head teachers will not wish to pry into the private lives of pupils and claim that youngsters should be treated as individuals, not groups.

There are also fears that teachers will feel forced to categorise pupils by their sexuality at a time when they are young and impressionable.

But an Ofsted spokesman insisted last night: ‘It is about schools being aware of the different groups of pupils that might attend their schools and doing all they can to ensure they reach their full potential. ‘These groups could differ depending on the nature and type of school and Ofsted does not have a prescriptive list.’

Today Ofsted unveils a new inspection framework which will make it harder for schools to be ranked ‘outstanding’. From next January, inspectors will concentrate on four key areas: achievement of pupils; quality of teaching and learning; effectiveness of leadership and management, and standards of behaviour and safety.

However, there will be an even greater focus on ‘narrowing gaps in performance’ for different groups of pupils such as ethnic minorities and children in care. Inspectors will evaluate the standards achieved and progress made by these cohorts compared with other pupils in the school and with national trends.

New Ofsted guidance says: ‘It is important to test the school’s response to individual needs by observing how well it helps all pupils to make progress and fulfil their potential, especially those whose needs, dispositions, aptitudes or circumstances require particularly perceptive and expert teaching and/or additional support.

‘In any particular school, such pupils may include disabled pupils; boys; girls; groups of pupils whose prior attainment may be different from that of other groups; those who are academically more able; pupils for whom English is an additional language; minority ethnic pupils; gipsy, Roma and traveller children; pupils known to be eligible for free school meals; lesbian, gay, bisexual, transsexual pupils; young carers, pupils from low income backgrounds and other vulnerable groups.’

Brian Lightman of the Association of School and College Leaders criticised the highlighting of lesbian, gay, bisexual and transsexual pupils. He said: ‘I’m not aware of any way in which such pupils might be identified in a school. It would be inappropriate for any headteacher to pry into the private lives of children.’

Russell Hobby of the National Association of Head Teachers said: ‘It would be simpler to say that every pupil should reach their potential. Each school will have different groups and communities.

‘What an inspector used to do, and should do, is go in and look and what the broad types of pupils are and look at whether there are any groups that are falling behind and home in on those. ‘But if you start getting rigid and start defining all these subcategories at length, the data can become less and less meaningful.’

Professor Alan Smithers of Buckingham University branded the list ‘absurd’. He said: ‘Schools have my sympathy. It’s political correctness that will get in the way of educating every child to his or her potential.’

The new Ofsted framework, which will come into effect in January, applies to all primary and secondary schools in England.


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