BEFORE THE

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

OF THE

COMMITTEE ON EDUCATION AND

THE WORKFORCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

HEARING HELD IN WASHINGTON, DC, JUNE 22, 1999

Printed for the use of the Committee on Education

and the Workforce

OPENING STATEMENT OF CHAIRMAN PETE HOEKSTRA, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE *

OPENING STATEMENT OF RANKING MEMBER TIM ROEMER, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE *

STATEMENT OF NORMA V. CANTU, ASSISTANT SECRETARY, OFFICE FOR CIVIL RIGHTS, U.S. DEPARTMENT OF EDUCATION, WASHINGTON, D.C. *

STATEMENT OF LINDA CHAVEZ, PRESIDENT, CENTER FOR EQUAL OPPORTUNITY, WASHINGTON, D.C. *

APPENDIX A - WRITTEN STATEMENT SUBMITTED FOR THE RECORD, INDEPENDENT WOMEN'S FORUM, ARLINGTON, VA *

APPENDIX B - WRITTEN OPENING STATEMENT OF CHAIRMAN PETE HOEKSTRA, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE *

APPENDIX C - WRITTEN STATEMENT OF NORMA V. CANTU, ASSISTANT SECRETARY, OFFICE FOR CIVIL RIGHTS, U.S. DEPARTMENT OF EDUCATION, WASHINGTON, D.C. *

APPENDIX D - SUBMITTED FOR THE RECORD, POLICY BRIEF, FEDERAL CONTROL OUT OF CONTROL: THE OFFICE FOR CIVIL RIGHTS' HIDDEN POLICIES ON BILINGUAL EDUCATION, BY JIM LITTLEJOHN, NOVEMBER 1998, CENTER FOR EQUAL OPPORTUNITY, WASHINGTON, D.C. *

APPENDIX E - WRITTEN STATEMENT OF LINDA CHAVEZ, PRESIDENT, CENTER FOR EQUAL OPPORTUNITY, WASHINGTON, D.C. *

APPENDIX F - SUBMITTED FOR THE RECORD, POLICY BRIEF, FEDERAL ADVOCACY AND ENGLISH LEARNERS: THE OFFICE FOR CIVIL RIGHTS' AGENDA FOR PUBLIC SCHOOLS, BY JIM LITTLEJOHN, JULY 1999, CENTER FOR EQUAL OPPORTUNITY, WASHINGTON, D.C. *

APPENDIX G - SUBMITTED FOR THE RECORD, REPORT, LEGAL PROBLEMS WITH DRAFT GUIDELINES ON HIGH-STAKES TESTING CIRCULATED BY THE U.S. DEPARTMENT OF EDUCATION'S OFFICE FOR CIVIL RIGHTS, BY ROGER CLEGG, JUNE 22, 1999 *

APPENDIX H - SUBMITTED FOR THE RECORD, STATEMENT OF RITA MONTERO, DENVER, COLORADO *

The Subcommittee met, pursuant to call, at 2 p.m., in Room 2175, Rayburn House Office Building, Hon. Pete Hoekstra, Chairman of the Subcommittee, presiding.

Present: Representatives Hoekstra, Hilleary, Schaffer, Tancredo, Roemer, and Scott.

Also Present: Representatives Petri and Deal.

Staff Present: Becky Campoverde, Communications Director; George Conant, Professional Staff Member; David Frank, Professional Staff Member; Victor Klatt, Education Policy Coordinator; Sally Lovejoy, Senior Education Policy Advisor; Patrick Lyden, Legislative Assistant; Deborah Samantar, Office Manager; Lynn Selmser, Professional Staff Member; Sally Stroup, Professional Staff Member; Peter Warren, Professional Staff Member; June Harris, Minority Education Coordinator; Marshall Grigsby, Minority Senior Legislative Associate/Education; Cheryl Johnson, Minority Counsel/Education and Oversight; and Roxana Folescu, Minority Staff Assistant/Education.

Chairman Hoekstra. A quorum being present, the Subcommittee on Oversight and Investigations will come to order. The Subcommittee is meeting to hear testimony from the Department of Education Office for Civil Rights and from the Center for Equal Opportunity.

The Committee Members will limit their questions until after the witnesses have given their testimony. This will allow us to keep to our schedules and also the witnesses to keep to their schedules. Therefore, our Members who have statements for the Hearing record, without objection, all Member's statements will be inserted into the record.

Chairman Hoekstra. I also ask that, without objection, written testimony from the Independent Women's Forum be entered into the record of the Hearing. Without objection, so ordered.

WRITTEN STATEMENT SUBMITTED FOR THE RECORD, INDEPENDENT WOMEN'S FORUM, ARLINGTON, VA - SEE APPENDIX A

Chairman Hoekstra. Thank you. An agreeable mood today, nice guy, good. My opening statement.

Good afternoon, ladies and gentlemen.

We are here today to review the policies and activities of the Department of Education Office for Civil Rights, also known as OCR. The OCR is charged with the important task of enforcing Federal anti-discrimination laws in educational institutions. These statutes were designed by Congress to ensure that students receive equal treatment under the law and are not discriminated against because of their race, color, national origin, sex or disability. Congress allocated to OCR a budget of $66 million to carry out this task during the current fiscal year.

We in Congress, however, have not undertaken oversight of OCR to determine how effectively the agency is carrying out its mission under the current Administration. This Hearing is intended to help remedy that and to ensure that OCR is protecting the rights of all students.

What we are most concerned with is the increasing evidence that OCR involvement sometimes produces negative consequences. I am sure this is not intentional, but if it is happening we need to be aware of it.

Today we will discuss three specific areas in which OCR involvement is affecting individuals and educational institutions.

One of these areas is intercollegiate athletics. Title IX of the Educational Amendments Act of 1972 prohibits discrimination on the basis of sex in educational institutions that receive federal funds. The statute is written in plain and concise language. It is a common-sense law. But OCR's implementation of the law may be puzzling to some. Colleges are strongly encouraged by OCR policy to have an equal number of men and women competing on varsity athletic teams, even if men and women do not share an equal interest in competing.

In fact, some schools drop men's sports in order to maintain the gender parity OCR holds up as an ideal. Can you believe that? Wrestling programs, now, why would we be talking about wrestling? One-third of all intercollegiate wrestling programs were eliminated in the past decade. One-third. I doubt that this is due to a lack of interest. Participation in high school wrestling has remained stable.

Overall, according to a GAO study that is just being released, the proportion of both men and women undergraduates participating in athletics decreased between 1986 and 1996. In other words, both male and female college students are less likely to participate in athletics today than they were 10 years ago. Thus, while Title IX may have contributed to a reduction in the number of men's sports, it has apparently failed to instigate an increase in women's athletic participation.

OCR is also deeply involved in the issue of bilingual education. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color or national origin. One form of national origin discrimination, according to OCR, is discrimination against students with limited English proficiency. A Supreme Court decision has held that schools must help such students either by teaching English or by first instructing them in their native languages. It was left to schools, however, to choose a mode of instruction. Some schools choose to use bilingual education. Many, however, do not.

Some school districts claim that OCR favors bilingual education and pressures them to use an approach that does not work. In extreme cases, this approach can lead to an English-speaking child being placed in a bilingual program simply because the child has a Spanish surname.

The other issue on the agenda today is a draft resource guide on discrimination in testing that OCR distributed last month. This guide could have unintended consequences for both student s and schools. The thrust of the document seems to contradict the Administration's stated priority of increasing accountability in schools. Although the guide intends to prevent the improper use of tests, it may actually end up preventing the implementation of good tests.

Last week, a members of the Massachusetts Board of Education testified before the U.S. Commission on Civil Rights that the new OCR guide would instill a fear of litigation in state education officials that could hold up the implementation of new high-stakes exams in Massachusetts. Several other states, such as Texas and Virginia, are also in the midst of instituting new high-stake exams that will identify gaps in educational achievement. When tests identify performance gaps between minority students and others, these gaps can be addressed. For instance, the performance gap between black and white students on Texas' statewide accountability exam has been reduced by 30 percent since 1994.

I hope that we can have a constructive dialogue this afternoon about these difficult issues of testing, bilingual education and Title IX. Perhaps a healthy and open debate will cause OCR and the Department of Education to reexamine whether or not their enforcement policies are protecting students in the best way possible.

Perhaps a healthy and open debate will also educate Committee Members on this Subcommittee about that.

WRITTEN OPENING STATEMENT OF CHAIRMAN PETE HOEKSTRA, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE - SEE APPENDIX B

Mr. Roemer.

Mr. Roemer. Thank you, Mr. Chairman. I ask for unanimous consent for my statement to be made part of the record.

Chairman Hoekstra. Without objection, so ordered.

Mr. Roemer. I wish there were more Members of our Committee here to listen to the witnesses today.

Chairman Hoekstra. We wish more Members would be here on both sides of the aisle.

Mr. Roemer. Hopefully.

Chairman Hoekstra. They are not used to us starting on time.

Mr. Roemer. Thank you, Mr. Chairman. I am pleased to be here today to learn about and discuss the activities and actions of the Office for Civil Rights at the Department of Education.

OCR is charged with enforcing the Federal Civil Rights Laws as they relate to education. As the Assistant Secretary for Civil Rights, Norma Cantu has been a tireless advocate for realizing the Department's primary mission.

This mission stands as one of the paramount statements that we as a nation have made. All students, regardless of their race, creed, national origin, gender or disability are guaranteed to have access and opportunity to an education; what a powerful idea and what a noble goal. As we move forward into the 21st century, we have recognized that we cannot leave people behind, but that we must move forward together as a nation. Nothing is more important than realizing that mission of educating all of our students.

Today we are here to learn about OCR's actions in three important areas: Title IX, limited English proficiency programs, and a draft guide on the use of high-stakes tests in education.

First of all, Title IX: Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in education programs receiving federal financial assistance. Athletics are an integral part of an institution of higher education, and OCR is responsible for ensuring equal access for all students to the athletic programs. To comply with OCR's regulations implementing Title IX's guarantee, a school has the freedom to choose between one of three methods of compliance. That is a very important point that I would like to reiterate. A school can choose between any of the three methods of compliance to satisfy Title IX regulations.

The first option a school may choose is to achieve substantial proportionality between enrollment rates and participation rates in athletics. The second option that a school may choose is to have a history and continuing practice of expanding programs for the underrepresented sex. Or, if a school chooses, the third option available to them is to meet the full and effective accommodation of interest and abilities of the underrepresented sex.

Every school has these three options available to them to achieve compliance. They can take any of these three paths, but they must take a path. This is fair both to the schools and the students because it ensures that schools offer, and students receive, equal opportunity to participate in a school's athletic program.

Secondly, Limited English Proficiency students face many challenges and obstacles as they strive to obtain a high quality education. Not the least of which is the fact that they may have difficulty with the English language. In 1974 the Supreme Court ruled in Lau v. Nichols that to be in compliance with Title VI of the Civil Rights Act of 1964 school districts had to take steps to help limited proficiency students obtain equal access and opportunity to education.

Since that historic decision, school districts across the country have struggled with the best method of overcoming language barriers and ensuring access to education. In order to ensure that school districts are helping students overcome language barriers, OCR requires that the programs are, first, based on sound educational theory; second, adequately supported by staff and resources so that the program has a realistic chance of success, and third, periodically evaluated and revised if necessary. Those are the only requirements. No one, particular education program is mandated, no curriculum is issued by the Department, and no one in Washington, D.C. is telling states and districts what they have to do.

The third area: a draft, high-stakes test guide. When the Department released the draft guide on high-stakes tests, they should have been clearer to their audience on their intended approach to the guide. Because they were not as clear as they probably wished they had been, there was a great deal of hysteria and overreaction by some of the media and others.

Fortunately, in the calm and cool light of day, we can take a deep breath, relax, and understand OCR's intent and purpose for the guide. The guide is intended to help and assist schools as they struggle with using tests for high stakes in education. Whether it be promotion from one grade to the next, graduation, admissions, or scholarships, tests must be carefully used so that they do not discriminate against one group or another.

This is not to say that tests should not or must not be used for these purposes. Standardized tests serve an incredibly important role in determining educational progress, academic merit, and some even predict future performance. However, not all tests do this and not all tests are being used in the way that their creators intended them to be used.

OCR has compiled a first draft of a very difficult document. But it is only intended as a first draft and should only be viewed as such by OCR, the media, experts and other stakeholders. The Department is soliciting input from experts and stakeholders, and then will solicit more input from the public at large. This is a time-honored method of creating a guide that can then be used for constructive purposes.

With that Mr. Chairman, I appreciate your calling this Hearing today, and I am happy to now note that we have been joined by at least one other Member of our distinguished Committee and I hope more will join us in the hour or two that we take to conduct this Hearing.

Chairman Hoekstra. Thank you.

Welcome, Mr. Scott.

Let me introduce the panel. Our first witness is Norma Cantu, who is the Assistant Secretary for Civil Rights at the U.S. Department of Education. In this capacity, Ms. Cantu serves as the Head of the Department's Office for Civil Rights.

Welcome and thank you for being here this afternoon.

Our second witness is Linda Chavez, President of the Center for Equal Opportunity, a nonprofit research and education project specializing in civil rights issues, former Director of the U.S. Commission on Civil Rights, and a former Editor of the American Educator, the quarterly journal of the American Federation of Teachers.

Thank you for being here.

Under Committee rules you must adhere, which is a very relative term, your oral testimony to roughly 5 minutes. Your entire statement will appear in the record. We will also allow all of the witnesses to testify before the questioning begins.

Ms. Cantu, we will begin with you.

Ms. Cantu. Thank you, Mr. Chairman and Members of the Committee. Thank you for inviting me to appear to testify today and to allow the complete text of my testimony to be included in the record.

On the first issue of addressing the use of tests in education, as the demand for accountability in education has increased in the past 6 years, the demand for valid nondiscriminatory, standardized tests has increased too. Our work has reflected that standardized tests are critical, useful components for helping ensure high standards and equal opportunities for all students. This Administration supports the proper use of standardized tests.

When I began at OCR, education groups identified for me the misuse of standardized tests as one of the five most pressing civil rights problems nationally. I noticed an increase in statewide race and standardized tests misuse. OCR has heard from educators a need for more education about commonly accepted principles guiding the proper use of standardized tests. Through our dialogue, we became convinced of the need to provide assistance.

The key principle driving our work is that standardized tests should be used in ways that are valid, that is, consistent with their design and purpose. OCR has built upon this common principle for the draft testing resource guide to give educators and policy-makers the tools to make good decisions about test use and to avoid discrimination. We have worked with dozens of educators, parents, teachers, businesses, policy-makers and testing groups to solicit input and advice regarding the scope, framing, and the kinds of resources to put in our resource guide. We have received many positive and constructive responses to our early draft guide. We have contracted with the National Academy of Sciences Board on Testing and Assessment, which has independently reviewed an earlier draft of this guide and will again review this draft to ensure that it comports with professional standards.

Our draft testing guide supports the appropriate use of standardized tests such as the SAT and the ACT, which are good materials for providing a meaningful picture of educational opportunities. Our guide does not equate disparities with discrimination, nor for race norming. We are not establishing definitions of merit for educational institutions or trying to discourage educators from using tests for high-stake decisions, nor to prove discrimination. The difference may be explained by many reasons, such as lack of preparation, skills or knowledge.

OCR follows federal court decisions, and if the courts teach us anything, it is this. Compliance with federal nondiscrimination standards rests upon sound educational judgments. Legal analysis parallels educational analysis. Is the test valid for the purposes used? Are the inferences derived from the test scores accurate and fair? Are the educational judgments based on those inferences accurate and fair?

When we talk about promoting the goal of high standard education for students, we mean it. Richard Riley, Secretary of Education, says people are choosing sides, not solutions. Rather than competing, we need to as Secretary Riley advises us, step back and lower our voices and truly listen to each other and search for common ground. That is our objective as we work to remand and eliminate discrimination so that high standard education is possible for all students.

English language learning, OCR's position is that students be provided with

meaningful access to the full school curriculum that is consistent with the goal of high-standards of learning for all students. Without full access, students can't achieve the high standards.

I refer to my testimony last year before the Appropriations Committee where I made it clear that OCR does not require or prohibit any particular educational approach for serving the needs of limited English proficient students. I also testified that no student should be placed in a special language program if they already have the language skills to participate fully, and held that a school was to help students overcome language barriers and have the duty to assist in meaningful, educational programs.

This ruling and the legal decisions that followed deferred to the school to choose the type of educational program to meet these responsibilities. OCR's mission is to ensure that and to help students acquire English skills adequate to participate in the mainstream. Districts have the flexibility to change their approach even after they have entered into an agreement with OCR. Consistent with federal laws, OCR has left the educational decisions to the educators. The record could not be clearer.

And finally, turning to the issue of athletics, to provide colleges with the maximum flexibility permitted by law to make their decisions on how to afford equality to male and female athletes. I conclude by thanking this Committee allowing me the opportunity of sharing information on OCR and federal laws. I would be pleased to respond to any questions that you my have.

WRITTEN STATEMENT OF NORMA V. CANTU, ASSISTANT SECRETARY, OFFICE FOR CIVIL RIGHTS, U.S. DEPARTMENT OF EDUCATION, WASHINGTON, D.C. - SEE APPENDIX C

Chairman Hoekstra. Thank you. I turned the light off.

Mr. Roemer. I don't think that she used all of her time.

Ms. Cantu. I timed it at 5 minutes and 15 seconds in my office.

Mr. Roemer. Any time remaining she could yield back?

Chairman Hoekstra. I don't think that we will have any problem with time today.

. Ms. Chavez.

Ms. Chavez. Thank you, Mr. Chairman and Members of the Committee. Indeed, it is an honor to be here and to testify about an extraordinarily important issue. That is the Office for Civil Rights' misapplication of civil rights laws, which has turned the very heeding of those laws on their head.

As you know, I have submitted full testimony and I will be asking to submit some other documents. I will try to keep my remarks limited and will address three issues: bilingual education, high-stakes testing, and if time permits, Title IX.

As several Members have already noted, the 1974 Supreme Court ruling in the Lau v. Nichols decision said that school districts must take affirmative steps in teaching that was sufficient to allow children that did not speak English what they needed to sink or swim in the American school system. What the Court said was, "No specific remedy is urged upon us. Teaching English to students of Chinese ancestry who do not speak the language is one choice. Giving instruction to this group in Chinese is another. There may be others." However, despite the clear meaning of those words, the Office for Civil Rights continues to promote native language instruction to the exclusion of other methods.

With all due respect to Mr. Roemer and Ms. Cantu, my organization, the Center for Equal Opportunity, has produced a policy brief which I would like to submit for the record called Federal Control Out of Control. It was written by a former Staff Attorney in the Office for Civil Rights. It is in fact an examination of more than 160 compliance letters between the Office for Civil Rights and school systems between 1996 and 1997.

SUBMITTED FOR THE RECORD, POLICY BRIEF, FEDERAL CONTROL OUT OF CONTROL: THE OFFICE FOR CIVIL RIGHTS' HIDDEN POLICIES ON BILINGUAL EDUCATION, BY JIM LITTLEJOHN, NOVEMBER 1998, CENTER FOR EQUAL OPPORTUNITY, WASHINGTON, D.C. - SEE APPENDIX D

Most recently the Office for Civil Rights has been involved in an altercation with the Denver school system, threatening the Denver school system with a cutoff of funds. This is simply because the school district in Denver, at the urging of its School Board, its sole Hispanic member of that School Board, decided to change its bilingual native language instruction to one that had increasing use of English and which limited participation to 3 years.

The Office for Civil Rights also continues to urge what are inappropriate selection criteria for students within the programs to serve limited English proficient students namely through two ways. One way urges the broadest definition of language surveys with schools when students enter school and the other asks what language is spoken in the child's home.

The Office for Civil Rights has routinely urged not just to inquire what language the child speaks, but whether anyone in the house, including a distant relative or temporary in the house, might speak a language other than English.

What is more, the Office for Civil Rights has urged school districts to use standardized tests in what are, I believe, clearly inappropriate ways. As all of you know, standardized tests are tests that use percentile ranking within a particular age group to each other. They are ranked from the 1st percentile to the 99th percentile and they are not to be used to determine an absolute knowledge of a given subject, but rather to compare a student's performance with others of his or her age.

The Office for Civil Rights has urged that school districts use a 40th or a 50th percentile range as a cutoff point to put students in a limited English class. By definition, 40 or 50 percent of all students also score at or below the 40 or 50 percentile in a standardized test even if those students are all English speaking. So this is an inappropriate manner of selection, yet it is one that is urged by the Office for Civil Rights.

Using these kinds of methods in fact leads to the segregation of Hispanic students and leads to their placement in programs which may not in fact serve their needs. In fact, there are literally thousands upon thousands of Hispanic students who are English bilingual or English dominant, who are put into programs as a result of these methods.

The Office for Civil Rights for more than 30 years has failed to promulgate regulations under Title VI with respect to the Lau decision. In fact, the last time it attempted to do so, they had to be withdrawn because they were so heavily in favor of native language instruction that it caused an absolute uproar in the education community.

Turning now to the issue of high-stakes testing and draft guidelines on so-called nondiscrimination, first of all, let me just briefly say that there are three kinds of discrimination that are recognized by the courts. The first kind of discrimination, at least with respect to choosing selection criteria, are schools which for whatever purposes, hold people to different standards based on the color of their skin. In fact, the Center for Equal Opportunity has conducted different studies in eight different states which show that universities and colleges often hold back students based on skin color in investigating them for admission to higher education.

There is also the intentional choosing of a selection criteria, neutral on its face but nonetheless intended to have an ethnic impact, for example, when California passed Proposition 209 outlining preferences and the Fifth Circuit in Texas' method of selecting students on the basis of race and ethnicity for higher education. Those two states have had some efforts, first in Texas and now being contemplated in California, to abandon the use of SAT tests altogether. This is not because those tests are discriminatory, but rather this is to try to overcome the effects of those two previous decisions, and to try in fact to select students on the basis of their ethnicity.

Both of those kinds of discrimination are clearly illegal under the law, but in either case has the Office for Civil Rights tried to intervene? In fact, as it tried to in Texas, it intervened in order to promote that kind of discrimination so long as it benefited minority students.

There is a third form of discrimination that the courts have recognized. Disparate impact is a method in which a race-neutral criterion is used. It is not intentionally selected because it is race conscious, but nonetheless does have an impact on minority members. This theory of discrimination has been recognized by the courts primarily with respect to Title VII and has not been used with Title VI. Yet, it has been urged upon us by the Office for Civil Rights.

Under Title VI the Supreme Court itself has said Title VI requires a showing of discrimination-set guidelines that say even contributing to desperate impact is enough. They would shift the burdens to colleges and universities to show that they must use the kinds of tests that they have been employing. If in force, these guidelines will destroy and have a disastrous impact on higher education.

And finally briefly, with respect to Title IX, the law itself as you have both stated is a very straightforward law which bans discrimination on the basis of sex and education programs or activities. OCR's policy interpretation, however, issued during the Carter administration, and regulations have gone out of their way and gone way beyond the law to require substantially proportional representation in sports between males and females. This has resulted in the loss of 200 men's teams up to 1997, according to the NCAA.

In summary, I would like to say that it is my view that the Office for Civil Rights has totally misapplied those laws for Title VI and Title IX to the detriment of civil rights enforcement.

Thank you.

WRITTEN STATEMENT OF LINDA CHAVEZ, PRESIDENT, CENTER FOR EQUAL OPPORTUNITY, WASHINGTON, D.C. - SEE APPENDIX E

Chairman Hoekstra. Thank you. Thank you both for being here.

I will read Mr. Roemer's statement.

We have the opportunity to step back, take a deep breath, relax a little bit and take a look at what was proposed in the high-stakes testing guideline.

Ms. Cantu, What is the process that you are going to go through? You submitted an initial draft of high-stakes discriminating impact. You are not getting feedback. I believe that you probably got quite a bit.

What is the next step? Is there going to be a second draft submitted for review by this Committee and review by other interested parties?

Ms. Cantu. Because this Administration supports the use of the proper use of standardized tests, we welcome comments. We want the people to share our support for the proper use of standardized tests. The process that we will be using is one where we want to give a good amount of notice. That means, while we don't have to, we do want to publish notice in the Federal Register.

I say we don't have to because we are not announcing any new law. We are relying on longstanding law. But there is a great amount of interest. So we are going to publish in the Federal Register notice of availability of a document.

We have already received some comments and additional comments are coming in. We are going to redraft, taking into account those comments, and then share the new draft with the Board on Testing and Assessment. That is an important body because they are what we call the Holy Grail as far as test-making. They prepare the professional standards. So we are going to ask them for their feedback on our document to be sure that we are following professional standards.

We are also going to be informed by the American Psychological Association because that group has put together educational standards that have been around since 1985. But as I understand it, they told us more than a year ago that they were interested in updating their bible, their standards. We hope that that is going to happen at the end of summer and we will be advised about that as well. The process that we want is one that is inclusive.

We have invited the test makers to be at the table. They were pleased to be at the table for developing this document. We have invited elementary and secondary school educator types and they are at the table. We have invited parents, business community and policy-makers to all comment on this very important project. We are following the Secretary's urging that this be a consultative process, one that is open and we hope over, having received all of the information, sometime in the fall. We will be able to receive all of the input from all of those sources and have a document.

Chairman Hoekstra. What I heard you say was that you are getting responses to this draft. Is there going to be a second draft when they take the burden of assessment training, or is it this draft that is out there right now?

Ms. Cantu. This draft that is out there was such an early draft. The reason that it is out there is someone leaked it out. The draft that we would like to share in the notice in the Federal Register would be informed by all of the interested groups, and that draft we would like to put on our Web site and have people offer comments on. That new draft that doesn't exist yet because we are still consulting; a new draft that we would like to share further with the board on testing and assessment for their review.

Chairman Hoekstra. So the draft that many of us have heard comments on is a draft that you perhaps would have wished had never made public because it was not intended to be a public document; is that a fair assessment?

Ms. Cantu. To be a consultative document; it was not my intent to make it public. I wish if I had to do it over again that it had not leaked while we were still receiving comments. But I continue to believe that the law contained in that draft is not new law. I disagree with comments I have read in the paper where people are saying there is a new impact; disparate impact standard. That is a law that we have had for 20 years. There is no legal standard that I am asking for comment on, if I was not clear on communicating that. I, of course, want people to comment. This document is intended to reduce the confusion, to find that common ground and to bring everyone together to what we agreed upon. To make that happen, I wish that draft had not leaked.

Chairman Hoekstra. So it will not be difficult for this Committee to get a copy of the draft. It is going to be public information; that is a consultative process . That is when it is going to go to the Board of Assessment Training on the whole issue of testing. That is because there is a lot of interest in Congress.

We had a Hearing a couple of weeks ago on one element of testing. I would guess that perhaps in this Congress we may have debate on national testing or the appropriate use of testing.

Before these become the final rules and regulations as put out by OCR, perhaps it would be appropriate to have you come back and review the feedback that you have gotten from the Board of Assessment Training and other organizations and review the final standards as you would propose them so that this would be an issue that we could agree on rather than one where we might have different sides.

One of the things I learned here in Washington is consistency with the law or whatever, but a lot of times rules and regulations appear to go out and make their own law or become more powerful. That is why we have a huge interest in this issue as we talk about accountability, and as we talk about testing. We have got to get this right. We look forward to working with you on that issue over the coming month and working through it with you.

Mr. Roemer.

Mr. Roemer. Thank you, Mr. Chairman.

It is always helpful after we have read conflict in the media to get people together and see what actually has taken place. I would like to ask Ms. Cantu just a couple of very brief, short questions so that we have your answers on the record.

First of all, the so-called final product issued by OCR with respect to the high-stakes test, my understanding is that the final product will be a guideline, not a regulation, not a bill, not a mandate. What is the case?

Ms. Cantu. That is correct. This is not new law and not new regulation. What we intend this to be is a resource guide that shows our support for the proper use of tests with high-stakes consequences, such as the SAT and the ACT. We want everybody to understand how to use those valuable tools in a way that furthers the national movement towards high standards, and yet at the same time ensures that we are not discriminating. So we very much want that final product to be something with high standards that we all agree on, and yes, we all agree that we should avoid discrimination.

Mr. Roemer. So you are right now at the drafting stage, gathering opinions from elementary, secondary schools, and post-secondary schools, getting various feedback, both positive and negative, I am sure, to your proposed guidelines.

Ms. Cantu. We welcome all of that feedback. We want to build that common ground.

Mr. Roemer. Let me ask you another question. Do you support the use of standardized tests?

Ms. Cantu. Yes. I support the legal and proper use of standardized tests. They are a valuable tool. Our own office used them as a measure to find out if equal opportunity is available to all students. Yes.

Mr. Roemer. So the Clinton administration has put a great deal of emphasis on standardized tests, and on boldly reforming schools in terms of higher standards and use of support. You support the Administration's efforts to continue to use standardized tests for a variety of these various programs?

Ms. Cantu. Yes.

Mr. Roemer. Now, we have heard different opinions, but do you ever mandate to schools the use of the specific form of instruction under the limited English proficiency? Do you mandate to a particular State or school, this is what you are going to teach?

Ms. Cantu. We neither mandate, nor require, nor urge concern, or any other verb that I can think of. We leave that educational choice to the local school districts so long as they follow the Supreme Court requirement and they teach these children enough English to have meaningful participation in the classroom. If they are doing that, they can choose any approach to meet that Supreme Court requirement.

Mr. Roemer. Finally on Title IX, I am a strong supporter of Title IX. Do you think that some schools use Title IX as an excuse to cut non-revenue producing men's sports? Help me. Tell me the procedure that you go through with Northwestern University, for example.

Ms. Cantu. Title IX does not require the cutting of any sport activity. I believe that some schools use that as an excuse, but that college has always had the choice to come into compliance in three different ways. Two of prongs deal with the history and continuing expansion of opportunities, and the prong that deals with measuring the abilities of the underrepresented sex, that is prong 3. Two of those prongs are prongs where the cutting of sports is useless. It doesn't help you come into compliance. If you cut men's sports, that doesn't show you there is a history of promoting women's sports. That doesn't help you. Cutting men's sports doesn't affect their interest or ability.

That is pretty useful, too. We have the experience in our offices that two-thirds of the settlements that we reach are using prongs 2 and 3, or the cutting of men's sports is not helping them. Our office actively encourages colleges to avoid the cutting of men's opportunities. We explain to them that they have flexibility. They have choice. I think it is sad when sports opportunities are cut. But that is local control, a local decision made by a local university, not by our office.

Mr. Roemer. So you never encourage any particular athletic department to pursue the cutting of non-revenue producing men's sports?

Ms. Cantu. Never, and we have discouraged the cutting.

Mr. Roemer. Not only never, you discourage the cutting?

Ms. Cantu. Yes.

Chairman Hoekstra. Thank you.

One housekeeping item; Ms. Chavez referred to a report during the testimony. I would like unanimous consent to submit the report for the record. Without objection.

Chairman Hoekstra. Okay, Mr. Tancredo.

Mr. Tancredo. Thank you, Mr. Chairman.

Ms. Cantu, although we have never met, I have heard a great deal about you, mostly through school districts in my state, not necessarily my District. I hasten to add not necessarily my District because they fear some sort of retribution would be visited upon them if I were to suggest that their experiences with OCR under your leadership have been anything but pleasant. As a matter of fact, it has been just the opposite. They used words like belligerent, bullying, highly condescending and altogether unpleasant to describe the situation that they feel describes the atmosphere that exists in the way in which you address issues in both Denver and other school districts.

I read and listened to your testimony, and the statements you used and the words you used. I would certainly characterize it as accommodating and your reference to the fact, on page 16 of your testimony, that neither Title VI or OCR requires advocates for LEP students and your restated commitment to that concept. I should tell you that something is amiss here, Ms. Cantu. Either you do not know what is happening in your department, or you do not know what your regional offices are doing to school districts in my state and others to be heard from, or this is just inaccurate. One of the two is the case, because I can assure you that Denver Public Schools, as they say, are a little bit hesitant. Here is what it is really like, but we are afraid to say anything in public because we are afraid they are going to come down to on us even harder.

There was one lady who was in fact, I think, quite courageous who was willing to come forward and did provide testimony last year with the Subcommittee. That is Rita Montero, who is a member of the school board in Denver. She had a particularly perplexing situation when her own child was placed in a bilingual education program. He did not speak Spanish, or if he did it was really his second language. He was perfectly fluent in English. He was placed there because his last name suggested that was the appropriate place for him to be. She was a school board member and attempted to get him out and found it almost impossible to accomplish.

Not only that, but when the school district decided that their own school program was not bilingual and it was a bilingual program. You can be in a non-English speaking program in Denver for 12 years. They had an ongoing program for I forgot how long, but it was a long time. It was a bilingual program. It was not working. Their own indicators were that so few kids were moving out that they had to do something about it. They proposed a different plan. At that point they did not need the kind of help and assistance that you suggest is forthcoming from the Office for Civil Rights, especially in the Denver office. At that point they encountered threats of withdrawal of all funding, and eventually the whole thing was turned over to the Department of Justice. Finally it was resolved in court to the satisfaction of Denver, I should say.

Now, these are general issues, and in 5 minutes it is very difficult to go into the really hundreds of specs that I have. I would just like you to respond if you could to the concern that so many folks have expressed to me about the way in which you operate this program and about what it appears to be at least. If it is not, something needs to happen in order to clear up the misperception that exists out there, that particularly you Ms. Cantu and certainly the Office for Civil Rights, has an agenda. The agenda is to keep a bilingual education program in every public school that is now participating in that educational experience and to thwart any attempt on the part of any school district to move to something that they consider better because the program they are operating doesn't work

I don't know what we can do. Well, I guess nothing because I just saw the red light, but you will have the opportunity to respond.

Chairman Hoekstra. Ms. Cantu, would you like to respond?

Ms. Cantu. Yes, please. I regret that Mr. Montero had that experience with her school board, but I don't believe that our office has ever required that a child who is already proficient in English be placed in a language assistance program. In fact, our office does quite the opposite. We push very hard to have schools understand that the law requires accurate, accurate diagnosis and accurate referral and accurate placement.

Our experience is the opposite. Our experience has been that there are some school districts out there who don't get it, that don't understand that it is their responsibility to help the students learn English. They are helping them to learn English 30 minutes a week and then wonder why the children fall behind, fail and can't graduate.

We are asking for accurate placement of children. If that child is already proficient, then that child does not belong in there. I do check with our office, sir, and we do treat everyone with courtesy and respect. I will take your testimony back as feedback, but it is not how we do business in our Office for Civil Rights. We treat people with respect and honor local educational decisions as long as they are consistent with the law.

Ms. Chavez. Could I just respond? I have been sitting here just feeling like Alice in Wonderland falling through the rabbit hole. The Denver situation was the case in which the Office for Civil Rights had sent threatening letters, which in fact threatened to cut off federal funds because the school board under the leadership of Rita Montero tried to move to a more English type of program for bilingual education. "Does not encourage or

coerce this notion" or any other verb; the placement of students in programs improperly is simply wrong.

I have submitted for the record a 65-page document that is 65 pages of OCR language, and OCR compliance letters, which in fact demonstrate that OCR does native language instruction primarily for Hispanic students. It is not nearly as coercive when it comes to children from other language backgrounds. I find it highly ironic that in the same Hearing we are talking about high-stakes testing and whether or not the Office for Civil Rights in its new draft guidelines is questioning the use of cutoff scores for college admission on the one hand. On the other hand the same office is using 50 percentile cutoff scores for students in bilingual programs.

All limited English proficient children live in Lake Wobegon. They are all above average because there is no way that anyone not above average could escape OCR case guidelines and demonstrate that they have acquired enough English. Again, the standardized test score is placed at a level where they simply cannot meet the requirement, nor could English monolingual students.

I feel that there is something amiss here. We are hearing out of this admission one thing when testifying, and we are seeing when they go into court, they send threatening letters to school districts. It is quite another practice.

Because it also bears on it, if the record stays open for these Committee Hearings, we are in the process of releasing yet another report by Jim Littlejohn, who was an attorney who attended the National Association of Bilingual Education national conference. We have in that report quotations from OCR officials which give lie to some of what has been said here today. That should also be included in the record.

SUBMITTED FOR THE RECORD, POLICY BRIEF, FEDERAL ADVOCACY AND ENGLISH LEARNERS: THE OFFICE FOR CIVIL RIGHTS' AGENDA FOR PUBLIC SCHOOLS, BY JIM LITTLEJOHN, JULY 1999, CENTER FOR EQUAL OPPORTUNITY, WASHINGTON, D.C. - SEE APPENDIX F

Chairman Hoekstra. Thank you.

We are going to go to Mr. Scott, and you will receive an equivalent to Mr. Tancredo's five minutes as you and Mr. Roemer see best fit to use the time.

Mr. Scott. Thank you, Mr. Chairman. I had questions about the SAT and the ACT tests. It is my understanding that they do have a disproportional impact against minorities. Is that true?

Ms. Cantu. We have not criticized SAT or ACT in our work. We are not saying, Mr. Scott, that the disparity impact alone in terms of disparate results might meet a violation.

Mr. Scott. There has been a disparity impact ?

Ms. Cantu. That is not the full inquiry, sir.

Mr. Scott. That was the question.

Ms. Cantu. To answer your question honestly, I have to say that there are some articles that suggest that minority students perform less poorly on the SAT, but I have drawn no conclusion at all that that violates the law. I have not urged that colleges stop using the SAT.

Mr. Scott. Okay. Has the SAT and ACT been validated past the first year in college as being a good predictor of performance?

Ms. Cantu. The SAT has validated the use of their test scores with our indicators as a good predictor of college performance.

Mr. Scott. College or first year of college performance?

Ms. Cantu. Both.

Mr. Scott. Are grades a better predictor of performance than the SAT and ACT test?

Ms. Cantu. The general studies that I have seen show grades to be a better predictor, but again, we do not urge colleges to stop use of the SAT.

Mr. Scott. I am not getting to conclusions, I am just asking questions.

Are grades combined with interviews a better predictor of college performance than the SAT?

Ms. Cantu. That I do not know.

Mr. Scott. Let me just ask a general question, and both of you may answer. What difference has Title IX meant?

Ms. Cantu. Title IX has made a huge difference in how this country has embraced high-quality education for all. Title IX; did you ask Title IX, sir?

Mr. Scott. Yes.

Ms. Cantu. Title IX has taken us from a country where young women were told, simply because they were female, they could not receive scholarships and could not participate in sports in a country where women excel across the world and bring gold medals and honor to the country as well as men. It has opened doors to careers and training for careers where women have not been welcomed before. The progress in this program in this country that is due to Title IX is extraordinary.

Ms. Chavez. Well first of all, having been too old to have benefited from Title IX myself, I do think that it has been of enormous benefit to girls and young women in opening up educational opportunities for them and ensuring nondiscrimination in activities and programs. The misapplication of Title IX, however, benefits neither young women nor young men. It is my view that OCR has in recent years misapplied the three-prong test that has no relationship to Title IX itself or to the regulations in Title IX judging whether or not schools are in conformity.

Let me also say that with respect to the questions that you ask about the SAT test, it is indeed true that on average the median scores of black students on the SAT scores are about 200 points out of 1600 on the SAT. What those differences in test scores show is there is indeed unequal educational opportunity in this country. It seems to me absolutely the wrong thing to do is get rid of the test or encourage the schools not to use the tests. But rather sweep under the rug the evidence of this education opportunity. What we should be doing is improving the quality of education that all students receive, but especially in the central city. Don't shoot the messenger just because we don't like the message.

Mr. Scott. Mr. Chairman, rather than upset the point on the fact that Ms. Chavez and I agree for once, I will just yield back the balance of my time.

Chairman Hoekstra. Mr. Roemer and I may just sit back and enjoy the moment.

Ms. Chavez. It is because I recently moved to Virginia, Mr. Chairman.

Chairman Hoekstra. Mr. Petri.

Mr. Petri. Thank you, Mr. Chairman, and both of you for testifying. I actually had written down "shooting the messenger" was going to be my next question. Maybe I should give you, Ms. Cantu, the chance to respond to that.

The purpose of tests, as I understand it, is to measure future performance if it is for admission or whatever, so that people can benefit from the school, and so people aren't turned down who are relatively more likely to do well and be doctors, lawyers, or whatever it is.

So is there a problem with the actual composition of the test and the questions on the test? Should we be addressing this to the colleges or are the schools not trying to get good tests presumably, to a student body? Why are we focussing on the schools and the test rather than the people issuing the test? If the problem isn't with the test aren't we sort of shooting the messenger? If they show a problem, then that test should try to better deal with the problem, to focus more resources, to do more things to try to increase input so that kids have a better chance. Adjusting the test so it comes out even could mean less resources going to people that really need them. Can you respond?

Ms. Cantu. You started out right saying that the first thing you notice is what is the purpose of the test is. We recognize that in higher education the purpose of the use of standardized tests may be different than in elementary and secondary education.

One real-life example that our office dealt with was the Texas high school graduation test. We received a complaint that African American students were scoring lower on this graduation test. We did not shoot the messenger, but we asked questions: Why is that happening? In conferences and dialogue with the State of Texas, the State itself says, we need to find out if we are actually teaching the material that we are asking students to perform well on. We are going to check on those schools which are heavily enrolled with African Americans to see if they have certified teachers, if the course material is covered, and to find out what the reasons are. The agreement that we made with the State of Texas is to work together so that both African Americans and whites meet the same test expectations; not separate standards by race, but the same standards for all.

Texas is my home State. I am proud to say that Texas is closing the performance gap between minorities and non-minorities. They are asking the right questions: What is the test for? What are we trying to do?

Mr. Petri. So what is the purpose of this exercise? Why are we raising a question in schools' minds about what tests they are employing rather than focussing on the organizations? I am sure they have all kinds of seminars, and my impression is they are very much trying to work out their tests. But at the end of the day, we do want it to be an accurate yardstick, and not manipulated to come up to disguise problems. Could you explain what the purpose of that is?

Ms. Cantu. The purpose of our resource guide is there are new policy-makers all the time, new superintendents, new state boards of education, and new school administrators. They deserve to have information in front of them, not an ambush, not a surprise, but put telling them here are all of the court cases that have happened, and here are what the professional standards are. It is all in one place for you so that you can use tests. We encourage you to measure student performance and reach high standards, but use them without discrimination. Here is a resource guide.

If someone out there is doing as Ms. Chavez suggests, and they are using that 40 percentile to decide whether a student should be kept back from the English mainstream, they are doing it wrong, and our office will help them figure out how to do it right.

Ms. Chavez. Could I just offer a more cynical interpretation why we are seeing these guidelines? For many years race-based preferences in college admissions, for example, claimed that schools applied equal standards and that affirmative action was nothing more than giving a slight edge to two, more or less equally qualified students in order to increase minorities in the school.

Once we had Proposition 209 in California, organizations such as mine began to publicize that schools were employing very different selection criteria for students based on race. They were, in fact, preferring black and Hispanic students and requiring higher applications for whites. They could no longer claim that they were race-neutral in their selection.

Then what happened, once you had evidence that there were these substantial differences in preparation for students, people then began to attack the tests themselves. Maybe we should not be looking at test scores because there is this unequal performance between black and white and Asian students. Therefore now you see the OCR coming down and essentially applying a theory of law that is an impact that has traditionally been exclusively in the Title VII employment arena and not been used for Title VI. Now they want to take this theory and apply it to Title VI in ways that I don't believe that even the courts will uphold. The court in the Fordice ruling a few years said very clearly you had to prove intent under Title VI. Unless someone can prove that the SAT is designed intentionally to keep blacks or Hispanic students out of the colleges, I don't think that burden is going to be met. This is a way to get around Proposition 209, Fifth Circuit opinion in the Hopwood decision. It is a way to get around the role of people who want race-neutral admissions.

Chairman Hoekstra. Mr. Roemer.

Mr. Roemer. Ms. Cantu, I want to come back for a second to this whole question of how OCR deals with some of the states that have set high standards and how you resolve some of these conflicts, try to set up the assessments with the standards and align those with one another. Texas is a good example because Texas has set very high standards for everybody; African American, Hispanic, high-income, low-income, everybody. Can you take me through how you resolve this conflict, if there is one, with the State of Texas?

Ms. Cantu. Thank you. In the State of Texas we did, in fact, receive a complaint under Title VI alleging racial discrimination. We did not in the first instance launch an investigation against the State. Instead with the state department of education, we discussed what facts we both needed to understand how to frame this complaint. Together we set about solving rather than trying to go through a formal, old-fashioned style civil rights enforcement where you are going to try to write up somebody. We decided to work together to ensure that all students without regard to race would have a chance to earn to high standards.

What that meant was we did not get rid of the tests. We kept the high standards. We did not ask for separate treatment for minority students. We expected them to meet the same high standards as white students.

Mr. Roemer. So in the case of Texas, we are saying that everybody is starting to meet the 50 percent requirement that the State has set forward?

Ms. Cantu. The most recent data on the State of Texas as compared to the national average measured on the national education program, is all students in Texas exceed the national norm. Secondly, the gap between minority and non-minority students is the smallest in Texas. They have made the greatest program in closing that gap. So they have two pieces of good news, excellence and equity at the same time.

Mr. Roemer. That is for the purposes of what we are trying to do, aligning the assessments with the standards that everybody, no matter who they are or what their income or what kind of school they are attending, can be expected to achieve the highest standards.

Ms. Cantu. Yes, sir. The tests are a valuable tool for focusing on what we need to pay attention.

Mr. Roemer. Paying attention. Let's say that you find there is a discrepancy in the number of people passing a particular test. You go back and try to find out through evaluating assessments what it was. Could it be that, as happens too often in America today, we have somebody that is teaching physics or teaching math or science that is uncertified in that particular subject?

Ms. Cantu. Yes, it could be that. We are very mindful that we have the responsibility because we are the ones in charge of enforcing the law. We have the burden of showing that there is a violation, and that we have the burden of showing there is a problem. So we do not place on the state the responsibility to defend and explain itself. That is our responsibility.

Mr. Roemer. In relation to all we are talking about with Texas, you have never mandated anything to them? You have worked with them in a conciliatory, cooperative fashion to continue to see that the gap between some of the minority students and other students is narrowed, and that it is being done?

Ms. Cantu. Yes.

Mr. Roemer. Let me ask you another question with regard to Title IX; a hypothetical. If in a college there are five or six women that want to start a softball team, and they can't get to 9 or 10 or a sufficient mass, what happens then?

Ms. Cantu. The Title IX does recognize that you have to have sufficient interest to form a team. So we would not require in that instance that the college create a team because they have insufficient women with the interest to play.

Mr. Roemer. So it comes back to the athletic department to decide to pursue?

Ms. Cantu. Yes. That applies to all other civil rights enforcement. We are very conscious of cost and burden on local colleges, so the kind of remedy that is expected, is a practical, reasonable one. We are very mindful of costs.

Mr. Roemer. Thank you.

Chairman Hoekstra. Mr. Deal.

Mr. Deal. Thank you, Mr. Chairman.

I would like to address to Ms. Cantu the issue of the resolution process. It has been suggested to me that during your tenure there has been a significant change in the way that procedure has been used. In the past when the complaint was filed an investigator from your office would serve in the role of a mediator between the educational institution and the complainant. Now the role of your investigator has become, in the words of one person to me, a strong-arm enforcer. It has become a process whereby institutions are being coerced into entering into rather sweeping agreements in order to avoid the expense of an investigation. Would you care to comment?

Ms. Cantu. The early complaint resolution is an innovation. It is how we invented ourselves. Let me take one second to describe what that is.

In the past when we received a complaint, we would immediately open an investigation and send very long data requests for information, schedule for witnesses and seek to send a finding. If we found no violation, we wrote a finding of no violation. We tried to provide a new step.

When a complaint is filed, we try to get all of the people on the phone to try to resolve the problem. Even before we use the taxpayers' money and school district's time and money, we try to get everybody talking together to get a mediation and resolution. Early on we try to resolve the complaint.

This is not strong-arming, sir. I do not believe that is an accurate description of our office. The process of getting everyone together has proved to be efficient. The General Accounting Office, GAO, issued a study of us this year that describes that we have improved greatly in how we have saved resources and how efficient and how timely we are in bringing resolution in a cooperative way.

Mr. Deal. Ms. Chavez, do you have any observations about that?

Ms. Chavez. Well, judging from the Denver situation, I think the folks in Denver would disagree that there has been a conciliatory kind of relationship here. I have been the head of a federal agency, and I know that sometimes when you are the head of an agency, you don't know everything that goes on with those who work in that agency. With all due respect to Ms. Cantu, I am certain that she is very forthright in her statements here today, but a great deal of what she says does not comport with the actual documentary record of the Office for Civil Rights activity in a variety of areas.

I am very pleased in some respects to hear what she has had to say today on the draft guidelines. I have a legal analysis of the draft guidelines that was prepared by Roger Clegg, who was General Counsel of the CEO, which I would like to share with the Committee if it could be included in the record. Mr. Clegg was Deputy Attorney General in the Reagan and Bush years.

I am very pleased to hear, for example, that she does not believe that disparity impact alone with Title VI proves a violation, but if you read the language of the guidelines, it does. In fact, it suggest that the Office for Civil Rights is striking new ground in civil rights law and is misapplying a theory appropriate to Title VII to Title VI in ways that it has not been tested above. It would be proof alone that if you had disparity impact that a violation had occurred. That is what the guidelines say.

I am glad they are to be initial and rethought, and maybe when we see them again, they will be better. But the mystery with respect to regulations is that it often does not issue regulations as it does in Title VI enforcement with limited English proficient students. Often it is a way of getting out and encouraging, if you will, school districts and other entities to comply with their version of a law, a version that I don't think comports with the law's interpretation or the plain language of that law.

Mr. Deal. Thank you, Mr. Chairman.

Chairman Hoekstra. Ms. Chavez, what document were you referring to?

Ms. Chavez. Legal problems with guidelines circulated by the Office for Civil Rights. It is a document authored by Roger Clegg, which I would like to submit for the record.

Chairman Hoekstra. Oh, so ordered.

SUBMITTED FOR THE RECORD, REPORT, LEGAL PROBLEMS WITH DRAFT GUIDELINES ON HIGH-STAKES TESTING CIRCULATED BY THE U.S. DEPARTMENT OF EDUCATION'S OFFICE FOR CIVIL RIGHTS, BY ROGER CLEGG, JUNE 22, 1999 - SEE APPENDIX G

Ms. Cantu. Maybe I did misspeak. Disparity impact theory is a legal impact theory. Disparity results would not make for a violation.

Ms. Chavez. In Title VII.

Ms. Cantu. In Title VI.

Ms. Chavez. Not in Title VI. The Fordice case says you must show intent. The Fordice without showing intent is not...

Ms. Cantu. I would ask that I be clear in the record on the guidelines I am trying to pull together. I am not announcing new law. It would be new law. Title VI for many, many years has allowed disparity impact as a valid legal theory.

Chairman Hoekstra. The two of you have just given our staff a little bit more work to do as we try to answer that question.

Mr. Schaffer.

Mr. Schaffer. Mr. Chairman, was that the document entered into the record?

Chairman Hoekstra. Yes, sir.

Mr. Schaffer. Ms. Cantu, the new OCR testing guidelines puts restrictions on high-stakes exams and the use of cutoff scores and test scores as a sole criterion for important education decisions. Why is it then that when OCR was investigating Denver Public Schools that the Agency was trying to get Denver to rely solely on standardized tests in deciding when to allow children to leave bilingual programs? Aren't you trying to have it both ways?

Ms. Cantu. I was recused from the Denver situation because before joining government, I worked in the public schools. So I did not work on Denver.

Let me answer you in general. When we are trying to find out if a district is making a lawful and accurate placement of a child and the district is trying to decide if that child is ready to leave the English support program and go into a full English mainstream program, we ask under guidelines that we have used for many years that multiple criteria be examined and that one of those criteria be objective. We do not ask a school district to use a certain percentile. That is not our policy.

While I didn't participate in the Denver case, I would be very surprised if we did that because that is not our policy. There are state laws and some local school districts that set their own criteria, but in writing our office has said you can use multiple criteria. In writing we do not spell out anywhere a specific cutoff score.

There are many misstatements in the documents that you refer to from Mr. Littlejohn, who is not an attorney. She has referred to him several times as an attorney. That is not accurate. He has referred to bilingual cases that we acquired. In the instances that he stated, the state law spells out the program. And so he has aimed the responsibility at us for choosing what the state law has chosen, and we respect the state law decision. We, sir, frankly do not care if it is an English as second language program or bilingual education program, because we believe that is for local educators to decide.

We, sir, do not have a cutoff score of 40 percentile. We have in writing, sir, standards that call for multiple criteria. We support the use of standardized tests. We ourselves include that as one of several criteria. We don't tell the school district at what percentile. That would be micromanaging. We don't do that.

Mr. Schaffer. Ms. Chavez?

Ms. Chavez. I do apologize. Mr. Littlejohn is not an attorney, but was employed for several years at the Office for Civil Rights. We do disagree with what they are doing in their compliance reviews, but we believe that the record speaks for itself.

We have entered into the record information that we have been able to obtain under the Freedom of Information Act, not voluntarily given to us I might add by OCR, but given under compliance with the law. We have been able to include several excerpts from the letters that reflect what I believe is coercion and micromanagement on the part of the Office for Civil Rights, even challenging in one school district the fluency of a particular teacher in Spanish in a particular program. OCR has been quite coercive and intrusive in school districts.

Mr. Schaffer. May I yield to Mr. Tancredo?

Chairman Hoekstra. Certainly.

Mr. Tancredo. Thank you, Mr. Chairman.

I ask for consent to put into the record the statement of Ms. Montero, the Member of the Denver Public School Board who commented on what had happened in Denver. I quote, "OCR ultimately concluded that DPS failed to comply with Title VI of the Civil Rights Act of 1964 by among other things, failing to assess students for entry into and exit from the program. DPS was not given an opportunity to rebut the bases for these findings and demonstrate how they are based upon misinformation and misunderstandings of our program." .

She goes on: "critical to OCR's determination was the decision that DPS should rely solely upon objective criteria for determining who should enter and exit the program, and that these objective criteria should be limited to an evaluation of students' performance on standardized tests, as measured by reference to rigid cutoff scores, in comparison to a nationwide sample of students."

Mr. Schaffer. Thank you, Mr. Chairman.

Ms. Cantu. Mr. Chairman, because I feel that I am recused from the one example that Ms. Chavez represented, I would ask that the record be kept open so that my deputy who did handle the case can provide full information for the Hearing. I feel that I can't respond to Denver at all, sir, and I would like to keep the record open to keep it complete.

Chairman Hoekstra. The record will remain open for 2 weeks for you to respond and for any other Members to submit materials for the record. If you have a problem with that let me know, and Mr. Roemer and I will work out some kind of accommodation.

Ms. Cantu. We think the correspondence will fix this problem. We know that we did follow our procedure.

Mr. Tancredo. Mr. Chairman, did you remove my request for unanimous consent to the statement of Ms. Montero?

Chairman Hoekstra. Submitted for the record, without objection, so ordered.

SUBMITTED FOR THE RECORD, STATEMENT OF RITA MONTERO, DENVER, COLORADO - SEE APPENDIX H

Chairman Hoekstra. A couple of questions. Ms. Cantu, you indicated in your comments a little earlier that the burden would stay with OCR.

Ms. Cantu. Yes, sir. Our practice has been that when we receive a complaint, or when we investigate a matter involving misuse of standardized tests, we have a responsibility, a burden to show a violation.

The school district, however, does have a responsibility to ascribe to us what their educational purpose is. It all begins with why are you doing this. It is their burden to describe that. Some districts are clueless and can't tell us why they use the test, so they fail to carry that part of their burden. But our responsibility to show a violation is to shoulder the responsibility.

Chairman Hoekstra. If I take a look at the test realizing this was a bootleg copy of the regulations, is it reasonable for us to assume, for all tests with disparity, the guidelines require that colleges prove that there is, " no practical alternative form of assessment," lessened the disparity of impact.

This tells me that the Office for Civil Rights is putting the burden on colleges. Rather than someone else proving that this test is discriminatory, the college has to say not only is it okay, there isn't anything else out there that would have even less of a disparity impact but that would be just as good of a predictor. That to me is a pretty tough standard to meet. Is it reasonable to expect that that language is going to change?

Ms. Cantu. Yes. We will make the language clear to conform to existing law. To make it clear the language will change. Our practical experience, sir, is we have never gotten to the part that shows the less discriminatory alternative.

Most of the complaints are the school; usually elementary and secondary. The school cannot show how this test is connected to complete its purpose. They can't show that. They borrowed a test, validated it for something else, and they are not able to show that it is connected to their purpose in the first place.

So we don't have a lot of practical experience about the last part, and we will follow existing law as to who carries the burden. We will, however, not look to create new law, and as suggested to us that we go contrary to existing law, we are going to resist that.

Chairman Hoekstra. Also you have talked a lot about new issue guidelines with a great degree of flexibility and latitude for local schools over which you have oversight. Last year OCR announced that it would not tolerate a disparity of 1 percent of scholarship money received by male and female athletes. Is that accurate?

Ms. Cantu. No, it is not accurate. May I explain?

Chairman Hoekstra. Yes.

Ms. Cantu. We had not received very many complaints about athletic scholarships until last year. When we did receive a number of complaints, we felt that it was important to make clear what the existing regulations and guidelines covering athletics meant. I made very clear that Title IX is about no discrimination.

So in evaluating whether a campus is complying with the portion dealing with scholarships, our office first looked at all reasons that explain the gap between the amount of money women received for scholarships and the amount of money that men received for scholarships. Legitimate explanations, more out-of-state men than women and out-of-state scholarships cost more, could explain the difference. A scholarship is offered to a woman, and she decided not to show up, that could explain the gap. So our standard allows for all reasons to be considered.

I did not want to go around hunting for that last dollar. I went ahead and told my staff, give them another 1 percent and round it off, so that additional 1 percent on top of all of the reasons could explain the gap.

Chairman Hoekstra. So that was 2 percent?

Ms. Cantu. It could move it as much as 10 or 12 percent, because first you have to account for all legitimate reasons. Someone turned the campus down and went somewhere else or someone coming from out of state. There is no fixed percentage that is about no discrimination.

Chairman Hoekstra. What triggers an action by your office? If they are outside of the

1 percent, does that then require the school to do the justification for you? If it is within plus or minus 5 percent, do they fall outside of that realm? When does OCR have a position that if you are 1 percent you are okay, but if you are beyond 1 percent we may require documentation?

Ms. Cantu. I have told our staff, 1 percent, no more questions to ask. You are done. If there are more than 1 percent, then you need to really find out what the reasons are. Do not presume discrimination, because there may be very legitimate reasons for the gap between scholarships for men and scholarships for women. That is what the statute is about, no discrimination.

Chairman Hoekstra. Have you interpreted that as being no questions asked if it is no more than 1 percent? If it is more than 1 percent, and if I am a college administrator expect a letter, or that I have got to...

Ms. Chavez. That is exactly right, Mr. Chairman.

It may not seem in this room as if that is unreasonable. But, if you are a school administrator, and you don't want to have the Feds breathing down your neck and people coming in and doing compliance reviews and taking valuable staff time away from other tasks to answer the questions of the Office of Civil Rights, you might just find it easier to do things to diminish the number of men receiving these scholarships. Or, reduce the number of programs available for men in order to bring the numbers into line.

This is how we have ended up with de facto quotas and employment in the name of affirmative action. It isn't that the Office of Federal Contract Compliance said that you must hire a certain percentage of minorities or women, but they did say that if you don't have numbers that reflect proportionality, we are going to come in and conduct a compliance review. You are going to spend the next year of your life answering questions from the federal government.

It sounds very reasonable in this room, but it is not reasonable to know when you are often a small school with a limited staff that you are going to have to comply with these kinds of requests. It is often easier to make these numbers come into line, which ultimately was not the intent of Title IX. Title IX was not supposed to be about diminishing opportunity in educational opportunities or sports for men. But the way that it is operating in some places in recent years, that is exactly what it has done.

Chairman Hoekstra. I am looking for some notes. I believe that under the OCR practices in the past the number was closer to 5 percent and readjusted to 1 percent.

Ms. Cantu. There was no number in the past. We had very few settlements. In one we took into account nondiscriminatory reasons. It happened to hit 5 percent. From there the former employees has gone around advising that it was 5 percent. But there was not a percentage, because Title IX is about no discrimination. So we have to ask the reasons why.

Let me take you back one more step. When Congress passed Title IX, Congress expected that it was not going to be coed. So when Congress passed Title IX, they anticipated that we were going to have separate and substantially equal opportunities; not identical, not perfect, but substantially equal because they are separate. We don't want to have women favored over men or men favored over women, but substantial and equal. When OCR read it back in the 1980s, they ran it by Congress and said, did we do it right? Congress didn't change them.

The things we are enforcing today have been around for 20 years, separate but equal. I am trying to give campuses flexibility. I am trying to refrain from saying it has got to be this percent. Some push me to tell them the percent. It is not about a percent. It is about no discrimination.

Chairman Hoekstra. Did there used to be a percent mentioned in the Title IX manual?

Ms. Cantu. I am not aware of it. I will go back and check for you. I want to be accurate for you. It wasn't our intent to make it a percent. If it was in a prior administration to make it a percent, it was wrong, because today we should give campuses the flexibility to give us their reasons. We don't want the percent to drive this answer.

Chairman Hoekstra. Getting within 1 percent is what you described as the trigger for an explanation. And having come out of the business world and spent a lot of time talking to schools, the last thing anybody wants walking through their doors is someone from the federal government who is there to help in explaining the solution. Your guidelines say that substantially equal means within plus or minus 1 percent.

Ms. Cantu. No, sir. It is all in perception. We are broadening the flexibility of colleges to be in compliance. Five percent, if that was the standard that people were urging on me, I think it is too restrictive on campuses. I want campuses to be able to give me every possible explanation, defense, to explain why there is a gap. I want campuses to be able to do that.

On top of that if they are within 1 percent, did she mention the small campuses, for small campuses we give them a full scholarship. So the small ones have more flexibility than the big ones do. We are trying to be real here. Real situations, they know where their money is going. If they have a $4 million scholarship program, they know where $40,000 is. That is a big chunk of money. If they are small, they can tell me where one scholarship is. It is not an unreasonable request to ask them to act without discrimination. One scholarship matters.

Chairman Hoekstra. One scholarship does matter.

I was just wondering that the tone here is one that I need to think about. I am going to have to go back and read what you just said, about I want them to come to explain to me.

I don't know how many colleges fall within that 1 percent standard if it is 46. I don't know out of what universe of all universities that are out there today, whether that is 10 percent or a certain class size. But if it is only 46, do I really want to make all of the other colleges in America responsible for answering to the Office for Civil Rights why they are not within the 1 percent?

How much money is that costing and how many scholarships is that costing for people at these schools around the country who most likely have very legitimate reasons why they are out of the 1 percent guideline? Recognizing if they are out of the 1 percent guideline, they are going to have to respond to you in fairly detailed explanation as to exactly why they have gotten to this point.

I am just wondering how much that is costing us, and how many scholarships that is costing, and how much money is going into paperwork? I think this is one where we may come back and just ask you for a cost benefit analysis of this. How big of an issue is it? How much paperwork are we driving? How much behavior are we changing?

It looks like a very tight standard, and I do get nervous. You probably didn't mean to say it that way, but I do get very nervous when they tell me why. I am not sure you are the first step that college administrators or athletic departments have to provide

justification to. They have got a President at the university. They have elected school boards at the universities that I am sure have as much concern for this as you do, and as much as Mr. Roemer and I have. I am not sure that you are the first line of defense rather than the second or third line of defense to ensure that the discrimination is not occurring.

Ms. Cantu. That is absolutely fair. I apologize if my tone...

Chairman Hoekstra. Your tone was fine.

Ms. Cantu. Congress has asked for this information to be collected and to be made available to the students. So the cost-benefit analysis has happened already. Congress already passed a law to allow students access to this information so they can choose to see how the college offers scholarships to men and women. I didn't get to see the document that Congress pulled together, but the vote was there, the support for having that information available to future students.

Our office receives, I will get the exact number for you, maybe 137 complaints a year about athletics total; less than 200 for sure. Out of the whole country there are how many millions of college students, and we get less than 200 complaints. Our main business, when we talk to colleges, is information sharing. We put it on the Web site, go to their conferences, and take the phone calls.

Our main contact is in the prevention mode, explaining to them what it means, what Congress did, how not to have a complaint filed against them, or how not to have a lawsuit filed against them. Our way of doing business is not to ask colleges to explain or defend themselves. We ask colleges to know what choices they are making because an unconscious choice may be a discriminatory choice. We want colleges to make informed decisions because they are going to have high expectations of students.

Chairman Hoekstra. Ms. Chavez.

Ms. Chavez. I guess I was not persuaded by that last answer. If there are fewer than 200 per year, it seems that the Office for Civil Rights is spending a disproportionate amount in search of discrimination that may not in fact, exist.

When you talk about one scholarship or one program or one person affected by a program that doesn't exist, and when we talk about Title IX, we think about its effect only in terms of women. But that scholarship that may not have an opportunity to exist for one plan, the NCAA shows a drop-off of opportunities for some 17,000 male students between 1992 and 1997.

What about those opportunities that are lost all because of fewer than 200 complaints of discrimination a year and because of activity on the part of the Office for Civil Rights which may be discouraging students from taking those opportunities that are available for young men as well as young women?

Chairman Hoekstra. Thank you. Mr. Roemer.

Mr. Roemer. Thank you, Mr. Chairman. I really don't have any other questions, just a concluding comment or two to make.

First of all, I want to thank our witnesses here today, Ms. Cantu and Ms. Chavez, for their helpful testimony. Certainly I think Ms. Chavez said it well, although 35 or 40 minutes ago, when she said that she ran a federal agency not too long ago and she knows that there are going to be complaints, that there are going to be people saying that you are not doing your job right, that they are going to accuse you of stonewalling or moving too fast. You can never get it perfectly right.

Certainly that is one of the reasons why we have you both here today and why the burden is on Ms. Cantu to get it right. We expect her to get it right. We want our government when it is involved in different areas to get it right and to do a good job. But I can't fathom two more important areas for the United States to get it right on other than making sure that there is no discrimination. That ensures that our children get equal access to schools regardless of color, race, religion, ethnicity; and that we have somebody out there to say in a right way, a balanced way and a fair way that we want to make sure that the African American child or that inner-city child, that Hispanic child, or Native American Indian child has access to these schools, and that they are good schools.

We have a history in this country where that has not always been the case. It is not a proud history in this country. We need to get it better. No doubt about that. Every one of us could do a better job in our federal responsibilities. Sometimes as a Democrat I disagree with the scope of what the Democratic Party wants to do, but I certainly agree with that goal. Having a daughter now who is only 2 years old, but raising somebody in the 1960s and telling that daughter, well, get your athletics in because you can play through high school and that is it. But my two sons, they can play and they can go on to be a pro basketball player or football player, they can do anything that they want; dream big. But, gee, Sarah, you can't have the same dreams, hold them down and be a great high school player. But with Title IX, too, not only be the best soccer player in the world, but the best. That is not all because of Title IX, but that is because of a lot of ancillary benefit to create a culture of young girls to get out there playing at five, six, seven and eight and aspiring to those things.

I think the goals of Title IX and not having discrimination in our society are goals that I am very proud of. Can we do them better? Absolutely. Should you as a person testifying here today be cynical at times and hold us accountable? Absolutely. That is the way that the system is supposed to work.

We appreciate your testimony. Hopefully Ms. Cantu won't be recusing herself too often in the future in high-profile cases where we have had a problem here, in Denver, and hopefully she can continue to get it right. I thank the Chairman.

Chairman Hoekstra. In Michigan our young men aspire to playing football for the University of Michigan.

Mr. Roemer. Don't get me started. That is our second game of the year, Michigan and Notre Dame.

Chairman Hoekstra. Thank you very much to the two of you for being here. I have no doubt that we share the same vision as to where we want to go. Ms. Cantu, as you are describing how the agency works, I hope that is how it worked. The guideline is flexibility and a great degree of latitude at a local level for people to do what is best for their school, for their community and their kids.

We have heard some of the anecdotal evidence, and I hope that you have heard it. I think that it is something that we want to take an additional look at to make sure that the guidelines have not become a bureaucratic wet blanket not focusing on priorities. That is something that we are very interested in and we want to move forward. We don't want to create a bureaucratic nightmare to move us away from achieving the big goals and getting people at the local level focusing on the wrong things rather than the big picture.

We are looking forward to getting some of the answers on the issues that were brought up that you did not have a background in. The record will stay open. We look forward to hearing from you again as the testing issue moves forward. Thank you both very much for being here. The Subcommittee will be adjourned.

Whereupon, at 3:52 p.m., the Subcommittee was adjourned.