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Assistant Attorney General for the Civil Rights Division Thomas E. Perez Speaks at the NSBA Council of School Attorneys
Boston ~ Friday, April 20, 2012

  It’s an honor to be here with all of you today.   I want to thank Francisco Negron and Susan Butler with the National School Boards Association, and Elizabeth Eynon-Kokrda, your new Chair Elect of the Council of School Attorneys, for the gracious welcome.

We live in a nation where education is considered perhaps the single most important factor in determining whether an individual will find success in life.   As a government – and as attorneys tasked with protecting our children’s ability to succeed in schools across the country - we have a critical responsibility to work together to break down any barriers a child might face in accessing his or her right to a quality education.

In the Civil Rights Division, breaking down barriers comes naturally to us.   For decades, we have played a critical role in the desegregation of our nation’s schools.   We have worked to ensure that a child’s sex, disability, the color of a child’s skin, the language he or she speaks, the religion he or she practices, does not deny access to equal educational opportunities.

We have worked to fulfill the promise of Brown v. Board of Education, the most well-known Supreme Court decision in our nation’s history, and the one that has had the most profound effect on education for our nation’s children.   As the Court recognized, “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.”

Our mission - to ensure that all students are guaranteed an equal opportunity to learn – is one we share with all of you in this room – and with school boards and school attorneys around the country.  

We have much work to do – together – to fulfill that mission.  

I come to you as a former local elected official in Montgomery County, Maryland, where roughly half of the budget was dedicated to Montgomery County Public Schools.   I come to you as a public school parent, whose children now attend Montgomery County Public Schools.   I also come to you as someone who spent considerable time working on diversity issues in higher education, especially in the health professions.   I participated in a number of working groups addressing work force diversity in the health professions, including a Commission that wrote a report entitled “Missing Persons: Minorities in the Health Professions.”   Let me read you one of the most important sentences in the report.   “The fact that the nation’s health professions have not kept pace with changing demographics may be an even greater cause of disparities in health access and outcomes that the persistent lack of insurance for tens of millions of Americans.   .   . Failure to reverse those trends could place the health of at least 1/3 of the nation’s citizens at risk.”   Diversity in our public schools is critical to promoting workforce diversity – in health professions and beyond.  

Today, our schools are as segregated as they were in 1970.   The lines across race and class that divide students who live in the same communities too often remain.   In a school district in Mississippi, after decades, schools with   nearly all black enrollment are less than a mile and a half away from schools with nearly all white enrollment of students.  

The Civil Rights Division is currently engaged in efforts to dismantle racial segregation in nearly 200 desegregation cases across the country, including in that Mississippi school district.   Fifty eight years after Brown, it is unacceptable for school districts subject to federal desegregation orders to fail or refuse to comply with their obligation to eliminate the vestiges of segregation.   It is unacceptable for separate black and white schools to linger intact.  It is unacceptable for six and seven year olds to experience complete racial isolation . . . a racial isolation that breeds educational inequality, and denies our children the experiences they need to succeed in an increasingly diverse and global economy.  

Communities that have come together in schools – where a generation has learned to learn together, play together, and live together - have experienced a transformation.   As the parents, students, teachers, and educators in Louisville, Kentucky and Seattle, Washington so eloquently shared, bringing students together across lines of difference makes everyone stronger.   Many of you here have championed the importance of diverse learning environments in your schools.   You have sought – voluntarily – to create more inclusive classrooms, where all students are welcomed and feel welcomed.  

You asked for our assistance in those efforts and we’ve provided it.   Last fall, the Departments of Justice and Education released joint guidance on the voluntary use of race in schools.   The guidance details the flexibility that the Supreme Court provided to school districts to promote the compelling interests in diversity and avoiding racial isolation in schools, and the significant and lasting educational benefits of schools that include students of diverse backgrounds.   And it provides numerous examples of options that schools can consider to further diversity or reduce racial isolation in schools - including school and program siting, drawing school attendance boundaries, grade realignment and restructuring feeder patterns, and faculty and staff recruitment.   

The guidance on the voluntary use of race was the second joint guidance that we issued with the Department of Education last year.   On May 6, 2011, we issued guidance on the rights of all students to enroll in school regardless of their or their parents’ immigration status.   As the Supreme Court recognized in its historic decision in Plyler v. Doe, a child residing within a state cannot be denied access to public school, whether they are present in the United States legally or otherwise.   This June, we will mark the 30th anniversary of the Plyler decision.   Yet children from immigrant families still face barriers to enrolling in school, as states like Alabama have put up a Not Welcome Sign at the school house door.   Children cannot learn if they never make it into the classroom.   As the Supreme Court noted in Plyler:

“By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.”

In the year since we issued the Plyler guidance, we have provided technical assistance to schools about their responsibilities to enroll students regardless of their immigration status. We have also investigated complaints about barriers to education for immigrant students, including schools that have requested social security numbers from students and/or parents, discouraging if not directly prohibiting many undocumented students from coming to school.   And we will continue to use all tools at our disposal to protect the rights of students to have equal access to school.  

Another of our key civil rights priorities is to ensure that school districts and states are meeting their obligations to English Language Learner students under the Equal Educational Opportunities Act (EEOA).   We have been actively enforcing the EEOA through proactive compliance reviews and complaint-based investigations.   Much of our EEOA work has been in close collaboration with school districts, which has facilitated significant and expeditious progress in helping ELLs get the services they deserve, and in helping districts meet their goals.   Our collaboration with the Boston Public Schools is a great example.   When administrators from the Boston Public Schools,   particularly Superintendent Carol Johnson and ELL Director Eileen de los Reyes,   joined forces with attorneys at the Civil Rights Division and in the Office for Civil Rights at the Department of Education , we were able to ensure that nearly all 8,500 students who were not getting any ELL services were receiving some services – all in less than a year.   Had we not worked collaboratively, many of these students would likely remain without services, and funds spent best on students would have been tied up in litigation. Instead, Boston reached an interim agreement with us in October 2010, and are executing a comprehensive successor agreement today.   This model agreement ensures meaningful remedies for ELLs and their parents in almost every aspect of the District’s ELL program, including identification, instruction, teacher qualifications, special education, advanced learning opportunities, and parent communications.   The experience with Boston is not unique: we have consistently found that strong collaborations with school districts in addressing civil rights concerns achieve better outcomes for students in a faster and less costly way.

Similarly, students with disabilities must have an equal opportunity to participate in and benefit from school programs and the same educational choices as students without disabilities, including the chance to attend their local public schools, charter schools, or magnet schools.   Once accepted, they must be able to meaningfully participate in their schools.  

The Civil Rights Division investigates complaints of schools denying admission to students with disabilities, refusing to make reasonable modifications to school programs so that students with disabilities can attend a particular school, or failing to give students with disabilities testing accommodations or accessible instructional material.   The Division seeks to ensure that students who are hard of hearing or who have a vision impairment, for example, are provided the same opportunity to communicate with the use of the auxiliary aids and services as do students without these disabilities.

And, the Civil Rights Division is actively enforcing the 1999 Supreme Court decision in Olmstead v. LC.   That landmark decision requires schools to comply with the integration mandate in title II of the ADA, so that students with disabilities are not segregated or isolated from their peers on the basis of disability.  

I am speaking with you today as a civil rights lawyer, and also as a parent of three children.   Like all parents, I worry that my children could face bullying and harassment at school; I worry about how modern technology can exacerbate the effects of bullying; and I worry about how such treatment could affect their chances to get a good education.

We are working to ensure that children can go to school without being bullied or harassed by his or her peers.   We have recently received some tragic reminders that, for too many children, school is a place of torment and fear.   We have seen the devastating effects of severe and pervasive harassment and, as a nation, we have begun working to address it.

In the Civil Rights Division, we are working hard to do our part.   We are holding school districts accountable when they fail to live up their obligation to keep kids safe at school.   If a school district knows, or should know, that severe or pervasive harassment is occurring, it is obligated to take steps to stop the harassment, ensure the safety of targeted student, and prevent future occurrences of harassment.   If a district isn’t taking these steps, it may be in violation of federal law.

Just last month, the U.S. Departments of Justice and Education entered into a Consent Decree with the Anoka-Hennepin School District in Minnesota, to resolves claims of sex-based harassment in middle and high schools.   It followed an extensive investigation into whether the learning environment in the schools was unsafe and unwelcoming for students who did not conform to gender stereotypes, including lesbian, gay, bisexual and transgender students.   Some students were afraid to go to school because they were repeatedly harassed.   Some students faced threats, physical violence, derogatory language, and other forms of harassment on a daily basis.   As a result, some students stopped attending school for periods of time, dropped out, and even contemplated or attempted suicide.

The Consent Decree provides a comprehensive blueprint for sustainable reform that will enhance the District’s policies, training, and other efforts to ensure that every student in the District is free from sex-based harassment and a safe, nurturing learning environment is cultivated for all students.   The Consent Decree was reached in cooperation with the District and will build on the District’s existing anti-harassment efforts to help to create an environment where all students feel safe in school and from harassment, and can be themselves.   

Bullying cannot be a rite of passage in our nation’s schools.   Instead, our schools must be safe and nurturing environments that promote learning and full participation by all students.   Bullying, sexual harassment and gender stereotyping of any student, including LGBT students, have no place in our nation’s schools.   We must work to stop those abusive behaviors when they take place, repair their harmful effects and prevent them from happening in the future.   We will use every tool in our law enforcement arsenal to ensure that all students have access to equal educational opportunity.  

Over the past two years, we have reached a number of agreements with school districts to address and prevent harassment in schools.   In Tehachapi, Calif., following the death of Seth Walsh, a gay student who took his own life, we worked with Department of Education, Office for Civil Rights, on an agreement with the school district to amend its policies and provide training to address and prevent sex-based harassment.   At South Philadelphia High School, we engaged in a comprehensive consent decree to address the severe and pervasive harassment of Asian American students.   And in Owatonna, Minn., we entered a settlement agreement to resolve an investigation into the racial and national origin harassment and disproportionate discipline of Somali-American students at Owatonna High School.  

It is our hope that these agreements and the Consent Decree in Anoka will become models for school districts in your efforts to address harassment and bullying in schools.

In closing, I want to turn to one of the key priorities of the Civil Rights Division and of the Administration – eliminating the school to prison pipeline.   Today, in schools across the country, we are seeing more and more students disrupted on their way to a diploma by increasingly harsh discipline practices for increasingly minor infractions.   Students are being handed Draconian punishments for things like school uniform violations, schoolyard fights and subjective violations, such as disrespect and insubordination.  

We have a case in Meridian, Mississippi where students are alleged to have been arrested for uniform violations or for talking back in class. I had an opportunity to visit Meridian and listen first hand to students. They told me of being escorted from school for crying while being paddled.   They told me of serving time in in-school suspension for wearing the wrong color socks.   I listened to a panel of eight students, roughly half of whom were wearing ankle bracelets.   Our investigation remains ongoing and we have made no final judgments, but the hopelessness and desperation conveyed by those students was palpable.  

Regrettably, students of color are receiving different and harsher disciplinary punishments than whites for the same or similar infractions, and they are disproportionately impacted by zero-tolerance policies – a fact that only serves to exacerbate already deeply entrenched disparities in many communities.

Education should offer a lifeline to those students for whom a successful future is not predetermined.   Particularly for those students in poor and historically disadvantaged communities, education should be the key that opens the door to a better future.  

But instead, we see that so many students, already starting the race behind some of their peers, are being waylaid by discipline policies that rob them of their only chance for success.  

In the Civil Rights Division, we are working to combat these disparities.   All of these situations are dire.   Any time a person’s civil rights are violated, it is a serious concern that must be addressed.   But when the violation affects a child’s education, the repercussions can be devastating and lifelong – today’s children won’t get a second chance to prepare for their futures.   We are all too aware that we have crossed the line into a crisis, and it is urgent that we turn it around.  

The foundations of the American Dream are rooted in education.   In a nation where we prize hard work and where we tout the ability of any person to climb the economic ladder we have failed all our children – and our society – if an education becomes a pathway to prison.   It is a moral imperative that education instead serves as a road to success.   Otherwise, our nation’s promise of equal justice and equal opportunity will remain out of reach for far too many of our nation’s children.  

The federal government can help bring systemic and institutional change.   But we know we are only part of the equation.   And for this reason, I am grateful to be here with you today.   We look forward to working with you to identify all of the tools available to aggressively break down barriers to education.   So that we can fulfill our mission, students can fulfill their promise, and we can all make real the promise of our future.

Thank you.

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