UNITED STATES DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS 915 28° AVE, SUITE 3310 SEATTLE, WA 981741099 October 12, 2021 Via E-mail Only: evikiohnson@idaholegalaid.org and martinhenderson@idaholegalaid.org Mr. Erik Johnson Mr. Martin Henderson Idaho Legal Aid Services 212 12! Ave. Road Nampa, Idaho 83686 Re: Wilder School District 133 OCR Reference No. 10211051 Dear Mr. Johnson and Mr. Henderson: REGION x ALASKA, DNERICAN SAMOA Rawat MONTANA [NORTHERN MARIANA, ISLANDS ‘The U.S. Department of Education, Office for Civil Rights (OCR) has completed its evaluation of your discrimination complaint against the Wilder School District 133. In your complaint, you alleged that, since the 2017-2018 school year, the district has: 1. Discriminated against English Language Learner (BLL) students, on the basis of national origin, by: a. Failing to adopt and implement an appropriate language assistance program model that is considered sound by experts in the field; b. Failing to adequately staff its ELL program; c. Failing to consider ELL students’ English language proficiency in determining the ELL services to be provided; and d. Failing to adequately identify and assess ELL students for placement into the ELL program. 2. Retaliated against parents of ELL students and limited-English-proficient parents who raised concems or had questions regarding the ELL program by pressuring teachers not to communicate with these parents during the 2020-2021 school year. ‘The Department of Eiducation’s mission is to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access, wowed govPage 2 - OCR Reference No. 10211051 3. Discriminated against students, on the basis of disability, by segregating them from non-disabled students and failing to provide them with individualized disability-related services; and 4, Discriminated against ELL students with disabilities, on the basis of national origin and disability, by: a. Failing to timely evaluate these students for disability-related services and ELL. program services; and b. Failing to consider the students’ language needs in their evaluations for disability-related services and with respect to the provision of disability-related services, OCR has the authority to enforce Title VI of the Civil Rights Act of 1964 (Title VI) and Section 504 of the Rehabilitation Act of 1973 (Section 504), which prohibit discrimination on the bases of race, color, national origin, and disability, respectively, in programs and activities receiving federal financial assistance. OCR also has the authority to enforce Title II of the Americans with Disabilities Act of 1990 (Title ID), which prohibits discrimination on the basis of disability by certain public entities. ‘The district receives federal financial assistance from this Department and is a public entity. Therefore, it is required to comply with Title VI, Section 504, and Title II. OCR procedures require that complaints be filed within 180 days of the date of the alleged discrimination, unless a waiver is granted. As your complaint was received on January 28, 2021, OCR has jurisdiction over allegations of discrimination contained in your complaint that occurred on or after August 1, 2020. OCR will investigate allegation nos. L.a-c that occurred on or after August 1, 2020, because they raise a possible violation of Title VI. OCR’s decision to open an investigation of these allegations does not feflect an opinion by OCR regarding the merits of the allegations or the district’s compliance status with respect to federal civil rights laws. It is OCR’s responsibility to address the allegations in a fair and impartial manner consistent with the regulatory requirements and OCR's Case Processing Manual (CPM). During OCR’s investigation of your complaint, the allegations may be resolved in a variety of ways, including a voluntary written agreement in which the district agrees to take remedial actions that OCR determines fully resolve the allegations consistent with applicable legal standards. Ifa resolution of the complaint is not reached before OCR completes its investigation, OCR will make findings and a determination as to whether the district is in compliance with the applicable legal standards and, in the event non- compliance is found, OCR will pursue a written agreement between OCR and the districtPage 3 - OCR Reference No. 10211051 in which the district commits to take specific steps to comply with applicable laws and regulations. For the reasons set forth below, OCR is dismissing those portions of allegation nos, 1.a-c that occurred prior to August 1, 2020, and allegation nos. 1.d and 2-4 in their entirety. In making this determination, OCR considered information provided in your complaint, your responses to OCR’s request for specific information, your telephone calls with OCR, and telephone calls OCR held with the witnesses you identified. Allegations Prior to August 1, 2020 OCR has determined that some of the specific concerns you raised with respect to your allegations of discrimination and retaliation occurred before August 1, 2020, and fall outside of the 180-day filing period. You requested a waiver of the 180-day filing requirement. In your May 3, 2021, letter to OCR, you stated that the parents of the students in the district’s ELL program could not, reasonably be expected to have known that the alleged acts were discriminatory or retaliatory within the 180-day time period and that the complaint was filed within 60 days of when the parents became aware of the alleged discrimination and retaliation. You also told OCR that these parents made efforts to obtain information from the district, but that the district rebuffed those efforts. You stated that these parents asked your organization to represent them in March 2020 and that between March 2020 and December 2020, your organization investigated the parents’ concerns. You told OCR that the complaint was filed within 60 days of your organization completing its investigation, OCR has determined that the reasons you provided do not support the granting of a waiver of the 180-day filing requirement. ‘Therefore, OCR is dismissing as untimely the concerns you raised in your complaint that occurred prior to August 1, 2020. Allegation Nos. I.d, 2, 3, and 4.a OCR’s CPM provides that OCR will dismiss an allegation where the allegation, on its face or as clarified, lacks sufficient factual detail that OCR cannot reasonably infer that discrimination has occurred or is occurring. Regarding those portions of allegation no, .d that occurred on or after August 1, 2020, you told OCR that the district is placing students in the ELL program based on their Latinx surnames and responses to a home language survey and is not conducting any additional assessments of the student’s language proficiency when making the placement decision. OCR interviewed parents that you identified as having information about whether their children were placed in the ELL program based only on their surnames.Page 4 - OCR Reference No. 10211051 One parent told OCR that she believed the district identified her child for ELL services based on her surname but did not provide information supporting her belief and did not provide any information suggesting that the student was inappropriately placed in the ELL program. Another parent told OCR that she believed her children were placed in the ELL program following her meetings with teachers where they discussed her children needing assistance with learning English; however, the parent did not provide any information to suggest that her children were not appropriately placed in the ELL program. OCR also interviewed « QM io you believed could provide OCR with information about the district's use of home language survey information to place students in the BLL program, The individual told OCR that the district had informed in February 2019 that it was using the home language surveys to identify potential ELL students and that it was using language proficiency assessents to determine whether the identified students needed BLL program services. Regarding those portions of allegation no. 2 that occurred on or after August 1, 2020, you alleged that beginning in the 2017-2018 school year, the district retaliated against parents of ELL students and parents who are limited-English proficient. You stated that the district pressured teachers to not communicate with these parents, based on their having raised concerns or having asked questions about the district’s ELL curriculum software or the district’s ELL program generally. OCR requested clarification from you with respect to whether this practice continued after August 1, 2020. You responded that, at present, you do not know of any individuals who are willing to come forward regarding this issue. You also told OCR that you have one example of retaliatory conduct from the 2020-2021 school year that involved a parent however, you informed OCR that you were not requesting that OCR look into this concern because the parent did not want to proceed with an OCR investigation, Regarding those portions of allegation no. 3 that occurred on or after August 1, 2020, you provided information to OCR that starting in the 2017-2018 school year, the district combined all severely disabled special education students from grades five through twelve into one segregated class of only special education students, that these students had no interaction with other, non-disabled, students, including during lunch, OCR asked you for information indicating that this continued occurring on or after August 1, 2020 In response, you indicated to OCR that you did not have substantial information regarding the 2020-2021 school year, and that you could not state whether the district was continuing to segregate students with disabilities from non-disabled students, Regarding those portions of allegation no. 4.a that occurred on or after August 1, 2020, you alleged that beginning in the 2017-2018 school year, students with disabilities whoPage 5 - OCR Reference No. 10211051 were also identified as needing ELL services were not timely evaluated for either disability-related or ELL services. OCR requested additional information, including specific instances on or after August 1, 2020, where students were not timely evaluated for disability-related services, ELL program services, or both. In response, you identified a student who you believe had her individualized education program (IEP) terminated during the 2020-2021 school year without being evaluated to determine whether she had a continuing need for disability-related services. OCR interviewed the particular student's parent, who told OCR The parent fold OCR she did not want to proceed with an individual complaint against the district, however. You did not identify any students who were not evaluated in a timely manner for either disability or ELL services since August 1, 2020 Based on the foregoing information, which you provided in support of allegation nos. 1.4, 2, 3, and 4.a, OCR is unable to infer that discrimination, since August 1, 2020, may have occurred or is occurring as alleged. Accordingly, OCR is dismissing these allegations as of the date of this letter. Allegation No. 4.b OCR’s CPM provides that OCR will dismiss an allegation when, based on all of the facts/information provided by the complainant or publicly available information, OCR cannot reasonably conclude that the recipient has violated a law OCR enforces. Regarding those:portions of allegation no, 4,b that occurred after August 1, 2020, you raised a concern that the district failed to consider the language needs of students with disabilities prior to August 1, 2020. You stated that the district does not currently have a policy in place to ensure that the district considers a student’s language needs when evaluating a student for disability-related services. OCR requested that you identify any students who you believed would support your assertion, You provided only the information for the student who you identified in allegation no. 4.a and whose parent stated to OCR that she did not wish to file an individual complaint. With respect to your assertion that the district has no policy regarding evaluating students who may need language assistance, OCR reviewed publicly accessible information on the district’s website, including the district’s policies and procedures regarding special education. The district's policies and procedures on special education stated that the district will take steps in accordance with the Idaho Special Education Manual. OCR reviewed this manual, which is located on the Idaho State Department of Education's publicly available website. The manual identifies the need for timely evaluation when the district has been made aware that the student may need special education and/or related aids and services,Page 6 - OCR Reference No. 10211051 The manual also provides for screening students to determine whether an evaluation would be appropriate as well as what potential interventions by general education staff would be helpful to identify a student with a disability for evaluation. In addition, the manual provides that all assessment tools shall be provided in the student’s native language and that evaluators should take care to ensure that the assessments used are measuring the relevant skills at issue and not the student’s English proficiency. Based on OCR’s review of the information located on publicly available websites, as well as the fact that you were not able to identify any students who were evaluated since August I, 2020, for special education and/or related aids, and whose evaluations did not account for these students’ language needs, OCR is not able to reasonably conclude that the distriot has violated Title VI as alleged. Accordingly, OCR is dismissing allegation no. 4.b. This letter sets forth OCR’s determination in an individual OCR case. This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such, OCR’s formal policy statements are approved by a duly authorized OCR official and made available to the public. You may have the right to file a private suit in court regardless of OCR’s determination. You have a right to appeal OCR’s determination regarding the untimely aspects of all your allegations as well as the timely aspects of allegation nos. 1.4, 2, 3, and 4 within 60 calendar days of the date indicated on this letter. An appeal can be filed electronically, by mail, or fax. You must either submit a form completed online at https://ocrcas.ed. gov/content/ocr-electronic-appeals-form, or a written statement of no more than ten (10) pages (double-spaced, if typed). If a written statement is submitted by mail, please send to the Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue SW, Washington, D.C. 20202; if submitted via e-mail, send to OCR@ed.goy; if submitted via fax, please send to (202) 453-6012. The filing date on an appeal is the date the appeal is postmarked, submitted electronically, or submitted via fax. In the appeal, you must explain why you believe the factual information was incomplete or incorrect, the legal analysis was incorrect or the appropriate legal standard was not applied, and how correction of any error(s) would result the allegation being opened for investigation; failure to do so may result in dismissal of the appeal.Page 7 - OCR Reference No. 10211051 OCR is committed to resolving complaints as promptly as possible, OCR will be contacting the district to discuss allegation nos. |.a-c. If you have any questions about this letter, you may contact Mark Farr, Senior Equal Opportunity Specialist, at (206) 607- 1607 or mark.farr@ed.gov. Sincerely, Saak eane Sarah Dunne Chief Attorney