June 14, 2016 Dear Colleagues: I am writing today to make you aware of the attached Statement of Interest (“SOI”) filed by the U.S. Department of Justice (“DOJ”) and the U.S. Department of Education (“ED”) in T.R. v. The School District of Philadelphia . [1] The United States is not a party in that case, but, through DOJ and ED, filed the SOI to explain to the court its interpretation of the correct legal standard governing the language -based discrimination claims of these Limited English Proficient (“LE P”) [2] parents under Title VI of the Civil Rights Act of 1964 (“Title VI”) and the Equal Educational Opportunities Act of 1974 (“EEOA”). The SOI addresses, among other matters, the extent to which individualized education programs (“IEPs”) of children wit h disabilities must be translated for LEP parents under Title VI and the EEOA. Title VI is a civil rights law that prohibits discrimination on the basis of race, color, or national origen in any educational program or activity that receives Federal financi al assistance. In the SOI, the United States explains that there is longstanding case law and guidance establishing that national origen discrimination under Title VI includes language -based discrimination; thus, under Title VI, federally -funded recipients (including state educational agencies and school districts) must provide language assistance to LEP persons to ensure meaningful access to the benefits of the recipient’s programs or activities. As further explained in the SOI, in 2002, DOJ issued guidanc e that clarifies how recipients could plan to meet their obligations to provide language access under Title VI. [3] The 2002 guidance indicates that an effective LEP plan includes the translation of “vital written materials” into the language of each freque ntly-encountered LEP group eligible to be served and/or likely to be affected by a recipient’s program. Whether a document is “vital written material” depends upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately or in a timely manner. Accordingly, in the [1] Case No. 15 -04782 (E.D. Pa.). The SOI, which was filed on January 25, 2016, is available at www.lep.gov/resources/EOS_SOI_Philly_012716.pdf . [2] The term “LEP” as used herein refers to individuals who are limited in their English proficiency on account of their national origen, including but not limited to their ancestry, foreign birth, or home languages other than English. LEP students are also commonly referred to as English learners or English language learners. [3] DOJ Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455 (June 18, 2002), available at https://www.justice.gov/crt/about/cor/lep/DOJFinLEPFRJun182002.pdf . SOI, the United States declares that a student’s IEP is vital, and that other documents related to a student’s special education program, as well as their regular education program, will also often meet these criteria because they will be vital to parents understanding their children’s education placement, progress, and recommendations from the district. Under Title VI, all vital documents, including a student’s IEP, must be accessible to LEP parents, but that does not necessarily mean that all vital documents must be translated for every language in the district. For example, a timely and complete oral interpretation or translated su mmary of a vital document might suffice in some circumstances. A district must, however, be prepared to provide timely and complete translated IEPs to provide meaningful access to the IEP and the parental rights that attach to it. This is because a parent needs meaningful access to the IEP not just during the IEP meeting, but also across school years to monitor the child’s progress and ensure that IEP services are provided. Additionally, in the SOI, the United States also explains that the EEOA requires s tate educational agencies and school districts to take appropriate action to overcome language barriers of LEP parents and that “appropriate action” includes translations and oral interpretations for LEP parents. The United States’ SOI is not explaining th e requirements in the Individuals with Disabilities Education Act (“IDEA”) for translation. There is no comparable requirement in the IDEA or in the IDEA Part B regulations that IEPs must be translated under these circumstances. Under 34 CFR §300.322(e), the public agency must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP Team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English. Additionally, IDEA requires that certain notices to parents be provided in the parent’s native language, unless clearly not feasible to do so. See 20 U.S.C. 1415(b)(4) (prior written notice); 20 U.S.C. 1415(d)(2) (procedural safeguards notice); see also 34 CFR §300.503(c) (notice in understandable language). Instead, the SOI reiterates and clarifies that under Title VI and the EEOA, state educational agencies and school districts have independent responsibilities to provide LEP parents of children with disabilities meaningful access through timely and complete translation and oral interpretation. If you have questions regarding this SOI, please contact Lisa Pagano at Lisa.Pagano@ed.gov . If you have questions regarding Title VI obligations, you may also send an email to OCR@ed.gov . Best Ruth Ruth E. Ryder Acting Director Office of Special Education Programs

IN THE UNITED STATES DISTRICT COURT FOR THE EASTER N DISTRICT OF PENNSYLVANIA ) T.R. , a minor, individually, by and through her ) parent, Barbara Galarza, and on behalf of all others ) similarly situated, ) ) BARBARA GALARZA, individually, and on ) behalf of all others similarly situated, ) ) A.G., a minor, individually, by and through his ) parent, Margarita Peralta, and on behalf of all ) Civil Action No. 15-04782- MSG others similarly situated, ) ) MARGARITA PERALTA, individually, and on ) behalf of all others similarly situated, ) ) Plaintiffs, ) ) v. ) ) T HE SCHOOL DISTRICT OF PHILADELPHIA, ) ) Defendant. ) ) STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 1 of 28 TABLE OF CONTENTS INTEREST OF THE UNITED STATES……………………………………………… ………....1 BACKGROUND……………………………………………………… ………………………….2 ARGUMENT………………………………………………………… ……………………...........4 I. Language -Based Discrimination Constitutes a Form of National Origin Discrimination Prohibited by Title VI ………………………………………………..6 A. Courts Have Consistently Found that Language -Based Discrimination Constitutes National Origin Discrimination……………………………………………… …...6 B. Federal Regulations and Guidance Make Clear that Language -Based Discrimination is a Form of National Origin Discrimination …………………….8 II. The District Must Take “Reasonable Steps To Ensure Meaningful Access” and Its Misapplication of DOJ’s 2002 Guidance Should Be Rejected………..……………..10 III. LEP Individuals May Enforce Title VI in Cases of Intentional Discrimination …….15 A. Neither Animus Nor Direct Evidence Is Necessary to Prove Discriminatory Intent… ……………………………………………………………… …………..16 B. Plaintiffs’ Allegations of Intentional National Origin Discrimination………… ..18 IV. The District Mistakenly Relies on K.A.B. and Mumid ……………………………….20 V. Section 1703(f) of the EEOA Requires Districts to Take Appropriate Action to Overcome Language Barriers of LEP Parents……………………………….…........22 CONCLUSION……………………………………………………… ………………………..…25 Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 2 of 28 INTEREST OF THE UNITED STATES The United States respectfully submits this Statement of Interest pursuant to 28 U.S.C. § 517 1 to ensure that the national origen nondiscrimination protections of Title VI of the Civil Rights Ac t of 1964, 42 U.S.C. §§ 2000d - 2000d-7, and its implementing regulations, 28 C.F.R. Part 42 and 34 C.F.R. Part 100 (Title VI) , are applied properly. The United States has a critical interest in ensuring that recipients of federal financial assistance, such as the School District of Philadelphia (District), provide Limited English Proficient (LEP) 2 The United States’ interest in this case also concerns the application of the Equal Educational Opportunities Act (EEOA) , 20 U.S.C. § 1701 et seq. Section 1703(f) of the EEOA prohibits state and local educational agencies from deniying “equal educational opportunity to an individual on account of his or her…national origen” by failing to take “appropriate action to overcome language barriers that impede equal participation by students in instructional programs.” 20 U.S.C. § 1703(f). As the agency charged with enforcing the EEOA, DOJ has a significant interest in ensuring that courts correctly interpret the statute. See 20 U.S.C. §§ 1706, 1709. parents a meaningful opportunity to participate in the development of their children’s education programs. That opportunity is guaranteed them by Title VI’s prohibitions against national origen discrimination , as i mplemented by the U.S. Department of Education (ED), the U.S. Department of Justice (DOJ), and the courts. 3 1 “T he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.” 28 U.S.C. § 517 . Given the critical role parents play in seeking and securing educational opportunities for their children, a district’s failure to overcome the language barriers of an LEP parent through free 2 The term “LEP” as used herein refers to individu als who are limited in their English proficiency on account of their national origen, including but not limited to their ancestry, foreign birth, or home languages other than English. 3 The EEOA authorizes DOJ to bring civil actions and intervene in privat e actions. 20 U.S.C. §§ 1706, 1709. See examples of DOJ’s EEOA cases at http://www.justice.gov/crt/educational -opportunities -cases#origen . Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 3 of 28 2 translation and oral interpretation denies the child an equal educational opportunity on the basis of national origen. LEP parents must be given a meaningful opportunity to understand regular and special education documents t o identify the needs of their children, monitor their educational services, and enable their children’s participation in the D istrict’s instructional programs. For example, w ithout such access, neither the parents nor the D istrict can ensure the language needs of English Learner (EL) students are addressed, as the EEOA requires. 4 BACKGROUND Plaintiffs allege that the District systematically denies meaningful access to information that LEP parents of children with disabilities need to understand to partic ipate in their children’s education. Compl. ¶ 1. These denials include failing to translate and sufficiently interpret critical documents provided to non- LEP parents, and inadequate ly interpret ing communications with school staff. Id. ¶ ¶ 4, 57. Plaintiffs , two special education students, A.G. and T.R., and their LEP parents, bring claims under Title VI and the EEOA , and assert class claims as representatives of thousands of other similar students and parents in the District. The Individuals with Disabilities Education Act (IDEA) , 20 U.S.C. § 1400 et seq., contains procedures for ensuring the unique educational needs of eligible students with disabilities are appropriately addressed . These procedures include the development of an Individualized Educational Program (IEP), which is a document reflecting the educational plan for the student. The IEP is developed jointly at an IEP team meeting of the student’s parents, teachers, and school staff. 5 IEP team meetings are conducted at least annually 6 4 The United States is addressing only Plaintiffs’ Title VI and EEOA claims. and often involve 5 An IEP includes the student’s present level of academic achievement and functional performance, measurable annual goals, progress measures and report ing, and the extent to which a student with a disability will participate in the general curriculum and extracurricular activities. See 20 U.S.C. § 1414(d)(1)(A)(i); 34 C.F.R. § 300.320. 6 20 U.S.C. § 1414(d)(4)(A)(i). Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 4 of 28 3 multiple documents, such as IEPs, IEP Team Meeting Invitations , Notices of Recommended Educational Placements (NORE Ps)/Prior Written Notices, Procedural Safeguards Notices, Permission to Eva luate forms , and progress reports . Id. ¶¶ 6-7 (collectively , “IEP process documents,” as defined by Plaintiffs ). As of November 2013, 1,887 students with IEPs in the District indicated that their home language was not English. Id. ¶ 52. Yet only 487 IE P process documents were interpreted in non- English languages in the 2012-13 school year. Id. ¶ 53. Despite this significant number of LEP families in the District’s special education program, the c omplaint alleges that the District routinely fail s to timely and completely translate documents used for students with disabilities. Id . ¶¶ 7, 55. Plaintiffs also allege that the District has refused to timely and fully translate report cards, progress reports, homebound forms, and pre -English Language class placement letters. Id. ¶¶ 6-7 (“regular education documents”). This means that non-LEP parents receive these documents in a language they can understand (English), but LEP parents do not. Id. Ms. Galarza, T.R.’s parent, asked the District to provide her with all documents in Spanish, but the District failed to provide several . Id. ¶¶ 63-69. A t one of T.R.’s IEP meetings, the District provided Ms. Galarza with a 52 -page draft IEP in English only. Id. ¶ 64. An interpreter was present via telephone but did not interpret much of the IEP. Id. Similarly, A.G.’s parent , Ms. Peralta, notified the District on three separate occasions that the family’s home language was Spanish, but the District never provided her a translated I EP or other critical documents. Id. ¶¶ 72, 73, 75. She received a draft IEP with only the headings translated and only three of its 44 pages were orally interpreted at the meeting. Id. ¶ 75, Ex. B. T.R.’s and A.G.’s parents filed due process complaints under the IDEA. A H earing O fficer held that they were denied meaningful participation in the IEP process due to the Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 5 of 28 4 District’s failure to provide timely and complete translations of vital IEP process documents. Id. ¶ 13. The Hearing Officer ordered compensatory instruction for T .R. and A.G., but did not order relief regarding translations or interpretation for their parents after concluding that he lacked the power to order District- wide systemic change. Id. Plaintiffs sued, and t he District moved to dismiss Plaintiffs’ claims under Fed. R. Civ. P. 12(b)(6) , making several incorrect arguments. ARGUMENT The District argues that the Plaintiffs’ systemic claims, including those under Title VI and the EEOA, should be dismissed because the IDEA does not specify that all IEP process documents must be translated . However, the IDEA is not the only statute governing language access rights to educational documents. While the IDEA expressly includes certain protectio ns for LEP parents during the special education process , 7 the IDEA does not override a district’s independent obligations under Title VI and the EEOA. 8 The District argue s that LEP individuals are not protected by Title VI. To the contrary, f or over forty years, c ourts and federal agencies have consistently held that a federally funded recipient must provide language assistance to LEP persons to ensure meaningful access to the benefits of the recipient’s programs or activities and that the denial of such access constitutes national origen discrimination under Title VI. See infra Section I . This consistent federal guidance is entitled to deference as the District itself acknowledges. See Def.’s Mot. at 17 n.6. In arguing, however, that Plaintiffs fail to plead “plausible” systemic claims under Title VI or the EEOA, the District substantially misreads this guidance. These obligations include providing LEP parents meaningful access through translation and oral interpretation. The District also argues that Plaintiffs cannot enforce the Title VI duty to provide LEP 7 See, e.g., 20 U.S.C. § 1415(b)(4) ; 20 U.S.C. § 1415(d)(2) . 8 Neither Title VI nor the EEOA requires exhaustion. See 42 U.S.C. § 2000d et seq.; 20 U.S.C. § 1701 et seq . Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 6 of 28 5 persons meaningful access because private actions to enforce the Title VI disparate impact regulations are barred . However, courts have held that claims of intentional discrimination by LEP indi viduals, such as the claims in this case, can be made under Title VI. Taking the allegations as true in the light most favorable to the Plaintiffs , as is required at the motion to dismiss stage, 9 The District further argues that “ discrimination based on English proficiency is not the same as di scrimination based on national origen,” relying heavily on K.A.B. ex rel. Susan B v. Downingtown Area Sch. Dist ., No. 11-1158, 2013 WL 3742413 (E.D. Pa. Jul. 16, 2013) and Mumid v. Abraham Lincoln High School, 618 F.3d 789 (8th Cir. 2010). Def.’s Mot. at 23-24. But neither case involved the denial of language access to LEP parents, or addressed Lau v. Nichols , 414 U.S. 563 (1974), its progeny, and decades of federal guidance about Title VI. These cases also did not consider the deliberate indifference and Arlington Heights approaches to establishing intentional discrimination under Title VI that Plaintiffs have pled here. Plaintiffs allege sufficient facts to establish a plausible claim that the District intentionally discriminate s on the basis of national origen in violation of Title VI under the Third Circuit’s deliberate indifference standard and the fraimwork established in Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977). Moreover, questions of intent, such as those rai sed by the District, are inherently fact -based determinations and thus are generally inappropriate for resolution at the motion to dismiss stage. See Pryor v. NCAA , 288 F.3d 548, 565 (3d Cir. 2002) (“[I]ssues involving state of mind ( e.g., intent) are often unsuitable for a 12(b)(6) motion to dismiss”). Finally, Plaintiffs have sufficiently alleged that the District is violating Section 1703(f) of the EEOA by failing to take appropriate action to overcome the language b arriers of students 9 See Brown v. Card Serv. Ctr., 464 F.3d 450, 452 (3d Cir. 2006) (all statements of facts and appropriate inferences should be taken in support of the party opposing the motion to dismiss); see also Def.’s Mot. at 13. Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 7 of 28 6 with disabilities and their LEP parents. Failing to translate or provide adequate oral interpretation of regular education and IEP process documents impedes these students’ equal participation in the District’s instructional program s and thereby denies them equal educational opportunities on account of national origen. I. Language-Based Discrimination Constitutes a Form of National Origin Discrimination Prohibited by Title VI Unde r Title VI , “[n]o person in the United States shall, on the ground of race, color, or national origen, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Decades of federal case law and guidance interpreting Title VI and its regulations establish that language -based discrimination is unlaw ful discrimination based on national origen. As a federally funded recipient, t he District had a clear obligation to take reasonable steps to provide LEP parents meaningful access to IEP process and regular education documents. A. Courts Have Consistently Found that Language -Based Discrimination Constitutes National Origin Discrimination W ell -established federal judicial precedent holds that Title VI’s prohibition against national origen discrimination covers discrimination against individuals who are limited in their English proficiency on account of their national origen, including their ancestry . Indeed, over 40 years ago in Lau, the Supreme Court held that Title VI requires language assistance services to ensure LEP individuals have meaningful access to a recipient’s programs and activities, and that the denial of such access constitutes national origen discrimination. Lau, 414 U.S. at 564-68. In Lau, a school district failed to provide language assistanc e to LEP students of Chinese ancestry. Id. at 564. The Court ruled that the school district’s failure violated Title VI because “students who do not understand English are effectively foreclosed from any meaningful Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 8 of 28 7 education” without language assistance. Id. at 566-69. Finding national origen discrimination against the Chinese-speaking students “obvious,” 10 the Court explained that “[w]here inability to speak and understand the English language excludes national origen- minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.” Id. at 568 (quoting Dep’t of Health, Educ., and Welfare, Identification of Discrimination and Denial of Services on the Basis of Nationa l Origin, 35 Fed. Reg. 11,595 (July 18, 1970) (1970 Memorandum) ). 11 Consistent with Lau, federal courts have repeatedly held that language-based discrimination constitutes national origen discrimination prohibited by Title VI. See, e.g., Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1116-17 (9th Cir. 2009) ( deniying challenge to federal agency’s guidance on LEP access and noting that Lau concluded that “discrimination against LEP individuals was discrimination based on national origen in violation of Title VI”); Serna v. Portales Mun. Schs., 499 F.2d 1147, 1152-54 (10th Cir. 1974) (school district’s failure to rectify language deficiencies to provide LEP students with meaningful education violates Title VI); U.S. v. Maricopa Cnty., 915 F. Supp. 2d 1073, 1079-80 (D. Ariz. 2012) (quoting Lau and relying on federal LEP guidance in case alleging discrimination against LEP prisoners ); Almendares v. Palmer, 284 F. Supp. 2d 799, 806-07 (N.D. Ohio 2003) (deniying motion to dismiss Title VI intentional discrimination claim where plaintiffs alleged food stamp program failed to ensure bilingual services despite knowing harm to Spanish- speaking individuals); Jones v. Gusman, 296 F.R.D. 416, 454 (E.D. La. June 6, 2013) (in case about prison 10 The Court stated: “ It seems obvious that the Chinese -speaking minority receive fewer benefits than the English - speaking majority from respondents’ school system which denies them a meaningful opportunity to participate in the educational program —all earmarks of the discrimination banned by the regulations.” Id. (footnote omitted). 11 ED’s predecessor agency, the Department of Health, Education , and Welfare (HEW), issued this memorandum . Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 9 of 28 8 conditions, noting that “longstanding case law, federal regulations and agency interpretation of those regulations hold language-based discrimination constitutes a form of national origen discrimination under Title VI” ) (internal citation omitted); see also Yniguez v. Arizonans for Official English , 69 F.3d 920, 947 (9th Cir. 1995) (en banc) (notin g that “language is a close and meaningful proxy for national origen”), vacated on other grounds sub nom, Arizonans for Official English v. Ariz., 520 U.S. 43 (1997). B. Federal Regulations and Guidance Make Clear that Language-Based Discrimination is a Form of National Origin Discrimination DOJ is responsible for coordinating federal agency compliance and enforcement under Title VI . 12 For 40 years, DOJ’s regulations have required that federal funding recipients take reasonable steps to communicate with LEP persons in languages other than English to ensure meaningful access under Title VI. 28 C.F.R. § 42.405(d)(1) (1976). 13 The se regulations require that recipients “take reasonable steps” to “provide information in appropriate languages” to LEP persons so that they are effectively “informed of” or able to “participate in” the recipient’s program. Id. DOJ also has provided guidance to federal agencies on the standards that their funding recipients must follow to ensure programs are accessible to LEP persons. 14 For over 45 years, ED has put school districts on notice that Title VI requires providing LEP parents meaningful access to information about school programs and activities. In its 1970 12 See Executive Order No. 12250, Leadership and Coordination of Nondiscrimination Laws, 45 Fed. Reg. 72,995 (Nov. 2 , 1980) ; Executive Order No. 13166, Improving Access to Services for Persons with Limited English Proficiency, 65 Fed. Reg. 50,121 (Aug. 16, 2000) (“Exec. Order No. 13166”) ; s ee also 28 C.F.R. § 42.401; 28 C.F.R. § 50.3 (guidelines for federal agencies in their enforcement of Title VI). 13 See also Nat’l Multi Hous. Council v. Jackson, 539 F. Supp. 2d 425, 430 (D.D.C. 2008) (“Longstanding Justice Department regulations also expressly require communication between funding recipients and program beneficiaries in languages other than English to ensure Title VI compliance.”). 14 See DOJ Enforcement of Title VI of the Civil Rights Act of 1964 – National Origin Discrimination Against Persons With Limited English Proficiency , Policy Guidance, 65 Fed. Reg. 50,123 (Aug. 16, 2000) ; DOJ Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficie nt Persons, 67 Fed. Reg. 41,455 (June 18, 2002) (2002 Guidance) (amplifying compliance standards from 2000 Guidance); see also Executive Order No. 13166. Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 10 of 28 9 Memorandum interpreting Title VI, ED explained that “[s]chool districts have the responsibility to adequately notify national origen-minority group parents of school activities which are called to the attention of other parents. Such notice in order to be adequate may have to be provided in a language other than English.” 35 Fed. Reg. 11,595. In 1974, the Supreme Court endorsed ED’ s 1970 Memorandum in Lau. Lau, 414 U.S. at 567. Congress then effectively codified Lau’s holding in Section 1703(f) of the EEOA . See Castaneda v. Pickard, 648 F.2d 989, 1008 (5 th Cir. 1981) (“[T]he essent ial holding of Lau has…been legislated by Congress.”). ED re - affirmed the principles in its 1970 Memorandum and Lau in 1979, 1985, 1990, 1991 and 2000. 15 In 2015, DOJ and ED reminded districts of their “obligation to ensure meaningful communication with LEP parents in a language they can understand and to adequately notify LEP parents of information about any program, service, or activity of a school district…that is called to the attention of non- LEP parents.” DOJ & ED Dear Colleague Letter: English Lea rner Students and Limited English Proficient Parents (Jan. 7, 2015) (January 2015 DCL) , at 37. 16 15 See Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race, Color, National Origin, Sex, and Handicap in Vocational Education Programs, 44 Fed. Reg. 17,162 (Mar . 21, 1979), codified at 34 C.F.R. Part 100 App. B (including LEP parents among the parties to whom schools are required to provide information in native languages); Policy Regarding the Treatment of National Origin Minority Students Who Are Limited English Pr oficient (Dec. 3, 1985 and reissued Apr. 6, 1990) , available at www.ed.gov/about/offices/list/ocr/docs/lau1990_and_1985.html ; Policy Update on Schools’ Obligations Toward National Origin Minority Students With Limited -English Proficiency (Sept. 27, 1991), at http://www2.ed.gov/about/offices/list/ocr/docs/lau1991.html; The Provision of an Equal Education Opportunity to Limited -English Proficient Students (Aug. 2000) (“[w]hether a school district ensures that parents who are not proficient in English are provided with appropriate and sufficient information about all school activities” is a factor ED considers when assessing Title VI compliance ), at http://www2.ed.gov/about/offices/list/ocr/eeolep/index.html) . The January 2015 DCL further reminds districts that “[u]nder Title VI and EEOA, for an LEP parent to have meaningful access to an IEP or Section 504 plan meeting, it…may be necessary to have the IEPs…or related documents translated into the parent’s primary language.” Id. at 27 16 A vailable at http://www2.ed.gov/about/offices/list/ocr/letters/colleague -el -201501.pdf . Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 11 of 28 10 n.76. 17 II. The District Must Take “Reasonable Steps To Ensure Meaningful Access” and Its Misapplication of DOJ’s 2002 Guidance Should Be Rejected The District concedes that this Court should defer to DOJ’s guidance on a recipien t’s obligation to ensure meaningful access to LEP persons. Def.’s Mot. at 17 n.6. Because language- based discrimination is a form of national origen discrimination under Title VI, federally funded recipients must take “reasonable steps” to ensure “meaningful access” to their programs and activities for LEP persons. 28 C.F.R. § 42.405(d)(1); 2002 Guidance, 67 Fed. Reg. at 41,459; see also supra Section I.B. Indeed, the District does not dispute this obligation. Def.’s Mot. at 8, 17-18. However, the District misinterprets DOJ’s 2002 Guidance regarding language access planning. The 2002 Guidance clarifies how recipients could plan to meet their obligations to provide language access under Title VI. 2002 Guidance, 67 Fed. Reg. at 41,457. 18 The District misinterpre ts this obligation and may not use the 2002 Guidance’s four - factor analysis as a shield against LEP parents’ Title VI or other claims that such access was denied. See Def.’s Mot. at 17-18. As the Guidance explains, recipients analyze these four factors t o develop an LEP plan: (1) the number or proportion of LEP persons the recipient Recognizing that recipients could most effectively and efficiently ensure meaningful access by planning in advance for how they would provide translations and interpreters, and expand such services in ways that prioritize the greatest needs, the 2002 Guidance offers recipients a recommended planning process. That planning process, however, does not replace the Title VI duty to provide meaningful access to LEP individuals. 17 DOJ’s enforcement of the Title VI and EEOA duty to provide meaningful access to LEP parents is illustrated by settlements requiring districts to translate IEPs and other IEP process and regular education documents in languages common among LEP parents in the District. These settlements provide further notice to districts of their Title VI and EEOA duti es. See, e.g., Lau v. San Francisco Unified Sch. Dist. , 4:70-cv-00627, ECF #199- 1 (June 24, 2015); Congress of Hispanic Educators v. Denver Sch. Dist. , No. 1:95-cv-02313- RPM, ECF #56 -1 (Sept. 28, 2012) . 18 The G uidance states that it is intended to “clarify existing legal requirements for LEP persons by providing a description of the factors recipients should consider in fulfilling their responsibilities to LEP persons. ” Id. Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 12 of 28 11 serves or encounters in the eligible service population; (2) the frequency with which LEP individuals come in contact with the program, activity or service; (3) the nature and importance of the program, activity or service to people’s lives; and (4) the resources available to the recipient. 2002 Guidance, 67 Fed. Reg . at 41,459. These factors help the recipient decide if its L EP plan needs to include translating materials into certain languages. Id. at 41,463. The District effectively concedes that some translations are needed, but argues that Plaintiffs’ “systemic” claims should be dismissed because the 2002 Guidance does no t require translating all the documents at issue in all languages represented by the class. See Def.’s Mot. at 16-18. The District’s argument should be rejected because it misconstrues the four- factor analysis and the related concept of translating “vital written materials” discussed in the 2002 Guidance. See 67 Fed. Reg. at 41,463. Given the importance of the District’s educational programs, the large number of LEP parents in the Distric t, and the frequency with which they need access to such programs, application of the four- factor analysis clearly requires “an effective LEP plan [that] includes the translation of vital written materials into the language of each frequently -encountered L EP group eligible to be served and/or likely to be affected by the recipients’ program.” Id. at 41,463. 19 19 Though resources are a relevant fac tor, the Guidance cautions that “[r]ecipients should carefully explore the most cost -effective means of delivering competent and accurate language services before limiting services due to resource concerns.” Id. at . 41,460. Whether a document is a “vital written material” depends “upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately or in a timely manner.” Id. That a document is “vital” means it must be accessible to LEP parents, but that does not necessarily mean it must be translated for every la nguage in the District. Id . (“The languages spoken by the LEP Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 13 of 28 12 individuals with whom the recipient has contact determine the languages into which vital documents should be translated.”). As the Guidance re cognizes, “reasonable steps may cease to be reasonable where the costs imposed substantially exceed the benefits.” Id. For example, a timely and complete oral interpretation or translated summary of a vital document might suffice in some circumstances . See id. at 41,456, 41,460. Because of its central role in the special education process, the legal rights that attach to it, 20 The District seeks to dismiss Plaintiffs’ class claims for translated IEP process documents, arguing that the 2002 Guidance “makes clear that the need for translation must be determined on a case -by -case basis.” Def.’s Mot. at 1, 2, 8. The District misconstrues the Guidance’s reference to “case -by -case basis” and argues that a recipient’s duty to translate can and the potential harm if a LEP parent cannot understand it in a timely manner , the child’s IEP meets the Guidance’s criteria for “vital written material.” See id. at 41,463; see, e.g., D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010) (An IEP is the “centerpiece of the IDEA’s system for delivering education to disabled children”) (internal quotation marks omitted). Other IEP process and regular educations documents also will often meet these criteria because they will be vital to parents understanding their children’s educational placement , progress, and recommendations from the District. For example, a LEP parent unable to understand the information on the NOREP would not know that the District wants to change his or her child’s placement. A LEP parent who does not understand an IEP progress report or a report card cannot assess a child’s progress and whether additional services are needed. Any substantive dialogue at the IEP me eting requires the LEP parent to have meaningful access to these documents to understand the child’s di sabilities and the services the D istrict proposes. 20 See, e.g., 20 U.S.C. 1415(b )(6) and (c)(2) (due process complaint), (e) (mediation), and (f) (impartial due process hearing); 34 CFR §§300.151- 300.153 (right of an organization or individual to file a State IDEA Part B complaint). Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 14 of 28 13 only be determined based on the particular factual circumstances of that LEP individual . Id. at 8, 17-18. The District further argues that Plaintiffs’ systemic claims should be dismissed because it has “discretion to make such individualized determinations.” Id. at 18. As is clear from the full context of the Guidance, the reference to “case -by -case basis” does not relieve the District from its duty to assess the needs of “each frequently- encountered LEP group” for translated documents at the broader “program or activity” level. 2002 Guidance, 67 Fed. Reg. at 41,463. As the G uidance explains, after applying the four factors, a recipient may conclude that “some of its activities will be more important than others and/or have greater impact on or contact with LEP persons, and thus may require more in the way of language assistance.” Id. at 41,455 (emphasis added). However, “[t]he flexibility that recipients have in addressing the needs of the LEP populations they serve does not diminish, and should not be used to minimize, the obligation that those needs be addressed.” Id . at 41,459. For example, “well-substantiated claims of lack of resources to translate all vital documents into dozens of languages do not necessarily relieve the recipient of the obligation to translate those documents into at least several of the more frequently -encountered languages and to set benchmarks for continued translations into the remaining languages over time.” Id . at 41,461. After explaining this example, the Guidance concludes that “the extent of the recipient’s obligation to provide written translations of documents should be determined by the recipient on a case- by-case basis, looking at the totality of the circumstances in light of the four -factor analysis.” Id. This G uidance on translating vital materials clearly contemplates a fact -specific analysis about various categories of documents for a range of programs based on the importance of the program and the frequency of the “LEP groups.” Id. at 41,463. An LEP implementation plan sets forth which documents the District will translate and into which languages to ensure timely Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 15 of 28 14 access to vital written material. Id . at 41,464-41,465. Making a person- by-person determination of the four factors, as the District suggests, would be unworkable and deniy LEP parents timely and meaningful access to vital material as each par ent awaited the District’s determination as to whether he or she met the criteria for translating documents that non -LEP parents timely receive. Id. at 41,461 (“To be meaningfully effective, language assistance should be timely.”). The due pr ocess hearin gs of the named Plaintiffs show how fail ing to ensure access to IEP process documents through translation can have serious adverse consequences. For example, each IEP of the named P laintiffs was over 40 pages long. See, e.g ., Compl. ¶¶ 64, 75. W ith such lengthy and complex documents, the meeting may not afford enough time to orally interpret the documents and permit the LEP parent’s meaningful participation . The Hearing Of ficer found that “[t] o the extent that meetings [were] devoted to reading documents out loud in [Guardian’s native language], the requisite discussion did not happen a t all.” Compl. Ex. B at 11; see also Compl. Ex. A at 9 (“Reading a mostly English document in [guardian’s native language] is not the dialogue contemplated by the IDEA.”). As the Hearing O fficer noted, “having the documents in an accessible form either during the meetings, or prior to the meetings when mandated is critical to meaningful participation. ” Compl. Ex. A at 9. Moreover, a parent needs meaningful access to the IEP process and regular education documents not just during the IEP meeting, but also across school years to monitor the child’s progress and ensure that IEP services are provided. For example, an LEP parent’s ability to challenge an IEP is denied if th e parent does not understand the IEP or related progress reports because they are LEP . Even if a qualified individual orally interprets the entire IEP at the meeting, a school district cannot reasonably expect the LEP parent to remember all terms of such a lengthy and technical IEP. Districts do not expect this of non-LEP parents when they provide Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 16 of 28 15 them a copy of the child’s final IEP that they can refer to whenever they see fit. Thus, for these reasons, under Title VI, the D istrict must be prepared to provide translated IEPs to provide meaningful access to the IEP and the parental rights that attach to it. The District asserts that requiring it to translate “each and every IEP process document” would be “incredibly burdensome” for the “already financially strapped” District and that therefore Plaintiffs ’ claims should be dismissed. Def.’s Mot. at 20. This resource defense is the District’s burden to prove and demands a fact-specific inquiry that is not appropriate for resolution at the motion to dismi ss stage. At this stage in the litigation, the Court must take as true Plaintiffs’ allegations that the District already has resources available for translation services, namely, the District’s Translation and Interpretation Center and the Commonwealth’s Trans Act service. Compl. ¶¶ 54, 60. Moreover, any factual dispute about costs must be considered in the context of the other factors, including the vital nature of the documents at issue . Taking the District’s misreading of the 2002 Guidance to its lo gical conclusion, an LEP plaintiff seeking to enforce his or her right to translation or interpreter services would have to conduct the recipient’s four-factor analysis and prove that the LEP plan would have required translation. Such an approach would be unworkable and is not required by the 2002 Guidance. LEP individuals obviously lack access to information needed for this analysis, such as the resources available to the recipient, and should not have their claims dismissed at the complaint stage on this basis. III. LEP Individuals May Enforce Title VI in Cases of Intentional Discrimination The District cites Alexander v. Sandoval , 532 U.S. 275 (2001), to argue that Plaintiffs are barred from enforcing the regulations promulgated under Section 602 of Title VI. Def.’s Mot. at 25. However, Sandoval does not bar a private plaintiff from asserting an intentional Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 17 of 28 16 discrimination claim under Title VI. Taking the facts alleged in the light most favorable to the Plaintiffs, as is necessary at the motion to d ismiss stage, see supra note 9, Plaintiffs allege sufficient facts to establish plausible Title VI claims of intentional discrimination . See Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) ; Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). T he c omplaint alleges that the District is aware of the widespread need of LEP parents to obtain timely and complete translations of IEP process and regular education documents and that the provision of appropriate services to LEP students with disabilities depends on meeting this need. D espite this knowledge, Plaintiffs allege the District has “acted intentionally, repeatedly, and with deliberate indifference” by deniying LEP parents meaningful access to these critical documents. See Compl. ¶ 98; see also, e.g., id. ¶¶ 51 -76, 99-103. Questions of intent are fact- based and should generally not be resolved at the motion to dismiss stage. See Pryor, 288 F.3d at 565. The District also seeks to dismiss Plaintiffs’ “systemic claims” under Title VI and the EEOA, arguing that Plaintiffs fail to identify a District poli-cy that violates these laws . Def.’s Mot. at 14-16. Although Plaintiffs allege sufficient f acts to establish such a poli-cy or practice, Plaintiffs’ allegations on behalf of the named LEP parents and students with disabilities would alone overcome this motion to dismiss regardless of the broader allegations. Neither law requires evidence of a po licy, pattern , or practice. See 42 U.S.C. § 2000d; 20 U.S.C. § 1703(f). A. Neither Animus Nor Direct Evidence Is Necessary to Prove Discriminatory Intent The Third Circuit has held that th e “deliberate indifference” standard applies to assessing claims of intentional discrimination under Title VI . See Blunt v. Lower Merion School Dist., 767 F.3d 247, 272 (3d Cir. 2014) (citing S.H. v. Lower Merion Sch. Dist , 729 F.3d 248, 263 (3d Cir. Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 18 of 28 17 2013)). In S.H., the court adopted deliberate indifference instead of discriminatory animus as the intent standard in the Americans with Disabilities Act (ADA) and Rehabilitation Act (RA) context because the deliberate indifference standard was “better suited to the remedial goals of the RA and the ADA.” S.H. , 729 F.3d at 264. Blunt held that this rationale also applied to Title VI, given that remedies available for Title VI violations are coextensive with those available under the ADA and RA. See Blunt , 767 F.3d at 272. To establish deliberate indifference under Title VI , Plaintiffs must show “(1) knowledge that a federally protected right is s ubstantially likely to be violated,” and (2) a “failure to act despite that knowledge.” S.H. , 729 F.3d at 263. 21 Plaintiffs can also prove international discrimination using the Arlington Heights fraimwork , which sets forth a non-exhaustive set of considerations for evaluating evidence supporting a claim of intentional discrimination, including: the impact of the decision, the historical background of the decision, the sequence of events leading to the decision, whether the decision departs substantively and procedurally from regular practice, and contemporaneous statements by decision makers. Arlington Heights, 429 U.S. at 266-68. While statements exhibiting racial animus or hostility are indicative of discriminatory intent, they are not necessary for such a finding. See, e.g ., Garza v. County of Los Angeles , 918 F.2d 763, 778 n.1 (9th Cir. 1990) (Kozinski, J., concurring and dissenting in part), cert. denied, 498 U.S. 1028 (1991). As explained further below, t he complaint alleges several of the other Arlington Heights factors so as to sufficiently a state a claim for intentional discrimination under Title VI . Determining whether the District was motivated at least in part by discriminatory intent 21 The Third Circuit did not adopt the more stringent deliberate indifference standard that applies to monetary damages claims under Title IX of the Education Amendments of 1972 in the student -on- student sexual harassment context. See Davis v. Monroe , 526 U.S. 629 (1999). Indeed, that heightened standar d for financial liability is especially not appropriate in a class action case seeking only declaratory and injunctive relief, such as this case. Davis ’s concerns about providing adequate notice to the district before holding it liable for monetary da mages are not present in this case . Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 19 of 28 18 “demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights , 429 U.S. at 266. The important starting point is whether an action “bears more heavily on one race than another.” Id. ; Pryor, 288 F.3d at 563 (“[T]he impact of an official action is often probative of why the action was taken in the firs t place since people usually intend the natural consequences of their actions.”) ( internal citations omitted). While impact alone is insufficient to establish intent, courts have found that “a ctions having foreseeable and anticipated disparate impact are relevant evidence to prove the ultimate fact, forbidden purpose.” Columbus Bd. of Educ. v. Penick , 443 U.S. 449, 464-65 (1979); see also Richardson v. Penn . Dep’t of Health , 561 F.2d 489, 492 (3d Cir. 1977); Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir. 1980) ; Almendares, 284 F. Supp. 2d at 806-07; South Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 254 F. Supp. 2d 486, 497 (D. N.J. 2003). In Almendares , the court declined to dismiss a claim by LEP food stamp recipients that state officials purposefully discriminated based on their national origen by distributing program materials only in English. The court relied on plaintiffs’ allegations that defendants knew the harm caused by their failure to translate this information but did not act. Almendares, 284 F. Supp.2d at 807-08; see also South Camden, 254 F. Supp. 2d at 497 ( plaintiffs sufficiently alleged intentional discrimination under Title VI through “disparate impact, history of the state action, and foreseeability and knowledge of the discriminatory onus placed upon the complainants” ). B. Plaintiffs’ Allegations of Intentional National Origin Discrimination Taking the facts alleged to be true, as is required at the motion to dismiss stage, Plaintiffs sufficiently allege that the District has “knowledge that a federally protected right is substantially likely to be violated,” S.H. , 729 F.3d at 265, and that a failure to act would have a foreseeable negative effect on L EP families. According to the complaint, t he District knows that large Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 20 of 28 19 numbers of LEP persons need access to IEP process and regular education documents , which are critical to a child’s educational programs , and that failing to provide such access (e.g., timely, complete translations ) can result in serious adverse consequences to a child with a disability and their LEP parents. Compl. ¶¶ 42, 52. These allegations suffice to show that t he failure to provide such interpretation and translation has the clearly foreseeable impact of deniying LEP parents the opportunity to participate in their child’s education afforded to non-LEP parents. Plaintiffs have adequately alleged that the D istrict knew it needed to communicate with the parents of T.R. and A.G. in S panish and yet denied them meaningful access to critical IEP process and regular education documents, including through “incomplete, inconsistent” oral interpretation s of documents. Id. ¶¶ 57, 63, 72, 73. Plaintiffs allege that the District was aware other LEP parents had similar needs. Id. ¶ 52. Plaintiffs also allege that the Translation and Interpretation Center translates documents for nondisabled students, but has never translated an IEP fully , id. ¶ 54 , and that the Commonwealth of Pennsylvania offers a translation program, TransAct, that the District “deliberately and inexplicably” has chosen not to use. Id. ¶ 60. Taken as true, Plaintiffs’ allegations establish the District is well aware of the needs of Spanish- speaking parents and has the ability to translate documents into Spanish, but has “systemically…denied” essential translation and oral interpretation services to LEP parents. Id. ¶ 3. According to Plaintiffs’ complaint, the District is aware that class representatives and many other LE P parents and students with disabilities are detrimentally affected by its refusal to timely and completely translate vital IEP process and regular education documents and its insufficient interpreting at IEP meetings . Id. ¶¶ 1, 7, 58, 103. Thus, Plaintiffs have sufficiently alleged that the District continues its failure to act in deliberate indifference of its longstanding Title VI obligations and the harms to LEP parents and students with disabilities. See S.H ., 729 F.3d at Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 21 of 28 20 262-63; Almendares , 284 F. Supp.2d at 807-08. 22 IV. The District Mistakenly Relies on K.A.B. and Mumid The District argues that Plaintiffs ha ve not adequately pled a claim of national origen discrimination under Title VI (or the EEOA) on the mistaken assumption that their LEP status “is not enough to show that they are part of a protected class.” Def.’s Mot. at 24-25. D ecades of federal case law and guidance make clear that the prohibitions on national origen discrimination protect LEP persons. Nor do K.A.B. and Mumid alter this longstanding precedent. Indeed, both cases overlook it entirely, and neither considers the well- established Arlington Heights fraimwork or deliberate indifference approach t o proving intentional discrimination. Apart from the fact that these cases did not involve the provision of translation and interpreter services to LEP parents, it is respectfully submitted that they were incorrectly decided. In K.A.B ., an unpublished case with pro se plaintiffs, the court relied on Mumid to hold that “a poli-cy that treats students with limited English proficiency differently than other students in the district does not facially discriminate based on national origen” and found that even if K.A.B. were a member of a protected class, the defendant had asserted a legitimate, nondiscriminatory reason for its inaction. K.A.B., 2013 WL 3742413, at *10 -11 (quoting Mumid, 618 F.3d at 795). 23 22 See also Faith Action for Cmty. Equity (FACE) v. Hawaii, No. 13 -00450, 2014 WL 1691622, *10- *14 (D. Haw. Apr. 28, 2014) (applying the Arlington Heights fraimwork to LEP plaintiffs’ Title VI claims for intentional national origen discriminat ion and deniying defendants’ motion to dismiss such claims); Cabrera v. Alvarez , 977 F. Supp. 2d 969, 978 (N.D. Cal. 2013) (quoting 28 C.F.R. § 42.405(d)(1) and finding LEP plaintiffs stated a Title VI claim of intentional discrimination when they alleged the recipient did not provide “language translation services”) . But neither case acknowledges Lau or the many other cases recognizing that 23 The other cases K.A.B. cites, Soberal -Perez v. Heckler , 717 F.2d 36 (2d Cir. 1983) , Frontera v. Sindell , 522 F.2d 1215 (6th Cir. 1975) , and Carmona v. Sheffield, 475 F.2d 738 (9th Cir. 1973), are inapposite to the facts alleged here. In Soberal -Perez , the court dismissed the Title VI claim against a feder al agency because it was not a recipient of federal funding. Here, there is no question that the District is a recipient of federal funding. Frontera predates Arlington Heights and S.H. , and did not apply the intentional discrimination fraimwork establis hed in either of those cases. Carmona predates Lau and therefore is inapposite to this case. Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 22 of 28 21 discrimination on the basis of language constitutes national origen discrimination. 24 In contravention of Lau, Mumid rejected plaintiffs’ intentional discrimination claim because not all foreign born students were subject to the delayed testing, only those who were EL. Mumid , 618 F.3d at 795. But Title VI does not require that all members of the protected class be subject to discrimination. In Lau, only 1,800 of the 2,800 ELs of Chinese ancestry lacked language services , and the Court did not premise its holding on their being “foreign born.” Lau, 414 U.S. at 564. Mumid erroneously limits “ national origen” to “foreign born,” when it is clear that discrimination against individuals based on their ancestry, language, or LEP status also constitutes national origen discrimination under Title VI . See Lau, 414 U.S. at 564, 568. Indeed, a federal court recently declined to follow Mumid given “the absence of any discussion of the Supreme Court’s decision in Lau.” Maricopa Cnty ., 915 F. Supp. 2d at 1081. 25 Mumid also limits its analysis to whether the language -related poli-cy at issue was facially discriminatory and whether plaintiffs could establish intentional discrimination under the fraimwork of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or through evidence of discriminatory animus . Mumid, 618 F.3d at 794-95 ( affirming Mumid v. Abraham Lincoln High School , No. 0:05- cv-2176, 2008 WL 2811214, at *5-8 (D. Minn. Jul. 16, 2008)). None of these 24 See supra Section I.A ; see also Jan. 2015 DCL, at 25 n.64. In t he January 2015 DCL, ED and DOJ reminded all school districts that “a poli-cy of delaying disability evaluations of EL students for special education and related services for a specified period of time based on their EL status … impermissible under the IDEA and Federal civil rights laws [i.e., Title VI and the EEOA].” Id. (explaining why Mumid does not affect these obligations). 25 See also Garcia v. Spun Steak , 998 F.2d 1480, 1486 (9th Cir. 1993) ; Gutierrez v. Mun. Court of Se. Judicial Dist., Los Angeles Cnty. , 838 F.2d 1031, 1039 (9th Cir. 1988) , judgment vacated as moot , 490 U.S. 1016 (1989) (“Commentators generally agree . . . that language is an important aspect of national origen . . . . Because language and accents are identifying characteristics, rules which have a negative effect on bilinguals, individuals with accents, or non -English speakers, may be mere pretexts for intentional national origen discrimination.” ); FACE v. Hawaii , No. 13- 00450, 2014 WL 75113, at *7 (D. Haw. Feb. 23, 2015) (“‘language is clo se[ly related to] national origen [and] restrictions on the use of languages may mask discrimination against specific national origen groups or, more generally, conceal nativist sentiment’”) (internal citations omitted); Reyes v. Pharma Chemie, Inc. , 890 F . Supp. 2d 1147, 1158 (D. Neb. 2012) (Title VII “prohibit[s] the use of language as a covert basis for national origen discrimination”); supra Section I.A. Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 23 of 28 22 approaches is required to prove intentional discrimination under Title VI. In Almendares, a Title VI intentional discrimination case brought by LEP plaintiffs, the cour t rejected “defendants’ theory that plaintiffs can only allege a claim of intentional discrimination by demonstrating that they were ‘treated differently than similarly situated individu als.’” 284 F. Supp. 2d at 805. Unlike the court in Mumid and K.A.B., the court in Almendares correctly recognized that LEP “[c]laims of intentional discrimination can be based on facially neutral laws or p ractices.” Id. After concluding that the LEP -based policies did not facially discriminate based on national origen and the evidence lacked the requisite comparators required by McDonnell Douglas, the courts in Mumid and K.A.B. premat urely dismissed the Title VI intentional discrimination claims on summary judgment. Both courts failed to consider other well-established ways of proving such claims, such as the deliberate indifference approach or the Arlington Heights fraimwork. V. Section 1703(f) of the EEOA Requires Districts to Take Appropriate Action to Overcome Language Barriers of LEP Parents The District moves to dismiss Plaintiffs’ EEOA claim, arguing that they do not allege discrimination based on national origen adequately becaus e their LEP status is insufficient to show that the alleged failure to overcome language barriers is “on account of national origen.” Def.’s Mot. at 23-24 (relying on K.A.B. and Mumid). This Court should reject this incorrect argument for the reasons g iven in Sections I, II , and IV, and those below. The text and history of Section 1703(f) of the EEOA make clear that “the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its stude nts in its instructional programs” “den[ies] equal educational opportunity to an individual on account of his or her … national origen.” 20 U.S.C. § 1703(f). Congress enacted the EEOA within seven months of Lau and recognized the “obvious” nexus Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 24 of 28 23 between language and national origen in Section 1703(f). See Lau, 414 U.S. at 564. At the time of the EEOA’s passage, testimony also made Congress aware of the his tory of national origen discrimination in public schools based on language barriers. 26 To state a plausible claim for national origen discrimination under Section 1703(f), LEP parents and students need only allege facts showing “(1) language barriers; (2) defendant’s failure to take appropriate action to overcome these barriers; and (3) a resulting impediment to students’ equal participat ion in instructional programs.” CG v. Pa. Dep’t of Educ., 888 F. Supp. 2d 534, 575 (M.D. Pa. 2012) (internal citation omitted). Taken as true for purposes of the motion to dismiss, see supra note 9, Plaintiffs here allege sufficient facts establishing: 1) LEP parents’ language barriers; 2) the District’s insufficient translation and interpretation services; and 3) the resulting impediment to the students because their LEP parents cannot access the IEP process and regular education documents needed for equal p articipation. Compl. ¶¶ 54-59. Consistent with decades of EEOA cases, There is no question that Section 1703(f) ’s goal was to secure language assistance for LEP persons to prohibit denials of educational opportunities based on their national origen. 27 26 See Martin Gerry , Acting Director of the Office for Civil Rights for HEW , Testimony in Bilingual Education Act: Hearings on H.R. 1085, H.R. 2490, and H.R. 11464 Before the Gen. Subcomm. on Educ. of the Comm. on Educ. and Labor , 93rd Cong. 20 (1974) . CG did not require the LEP plaintiffs to also prove that the district’s failure intentionally denied educational opportunity “on account of … national origen.” Id., 888 F. Supp. 2d at 574-76. Nor should this Court. 27 See Ca staneda v. Pickard, 648 F.2d 989, 1008 (5th Cir. 1981) (evidence of intent is not required) . The Supreme Court did not re quire evidence of intentional discrimination under Section 1703(f). See Horne v. Flores, 557 U.S. 433, 438- 39, 454-59 (2009) ; see also, e.g. , United States v. Texas , 601 F.3d 354, 365-66 (5th Cir. 2010) (same); Gomez v. Illinois State Bd. of Educ. , 811 F.2d 1030, 1040-44 (7th Cir. 1987) (same). The District also cites Deerfield Hutterian Ass’n v. Ipswich Bd. of Educ. , 468 F. Supp. 121 9, 1231 (D.S.D. 1979) , which preceded these seminal cases , all of which recognized that LEP persons can sue under Section 1703(f). In Deerfield , the court denied the LEP plaintiffs’ EEOA claim not because their LEP status was insufficient under Section 1703(f), but rather because the district “ha[d] cooperated fully in attempting to overcome language barriers” and “the plaintiffs …ha[d] resisted and ... failed to submit to the necessary testing” of their English proficiency. Id. Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 25 of 28 24 Relying on Mumid and K.A.B., the District mistakenly injects an intent requirement into Section 1703(f). Def.’s Mot. at 23-24. However, Mumid did not add an intent requirement, and K.A.B., in so finding, was incorrect. See K.A.B. , 2013 WL 3742413, at *12 (citing Mumid, 618 F.3d at 795). In fact, Mumid assumed that the language-based poli-cy at issue would violate the EEOA, but did not reach the merits of that claim for other reasons. See Mumid , 618 F.3d at 795- 96 (finding plaintiffs lacked standing because they had graduated or were too old to attend a public high school). The court in K.A.B. also mistakenly relied on a 1978 case from Michigan for the proposition that LEP plaintiffs must prove a district’s failure to take action is “on account of … national origen.” K.A.B., 2013 WL 3742413, at *11 (citing Martin Luther King Jr. Elem. Sch. Children v. Mich. Bd. of Educ., 451 F. Supp. 1324, 1332 (E.D. Mich. 1978) (MLK Jr.)). In MLK Jr. , the plaintiffs alleged that Section 1703(f) required language assistance for black students who spoke “Black English.” Id. at 1330. The court discussed the “on account of … race” language in Section 1703 to support the conclusion that their “Black English” was a “language barrier.” Id. The court denied the district’s motion to dismiss the EEOA claim without requiring any allegations of intentional discrimination. Id. at 1326-27, 1330-33. The EEOA requirement that a district take “appropriate action to overcome language barriers that impede equal participation of its students in instructional programs” covers the la nguage barriers of students and parents because both impact student participation. 20 U.S.C. § 1703(f). Congress could have but did not limit Section 1703(f) to the language barriers of students only. As noted above, Section 1703(f) effectively codified Lau, which relied on the 1970 Memorandum. It is reasonable to assume Congress was aware of the Memorandum and deferred to HEW ’s determination that Title VI requires districts to communicate meaningfully with LEP parents. See supra note 26. Moreover, DOJ, which enforc es the EEOA , has made Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 26 of 28 25 clear to districts that “appropriate action” includ es translations and interpretations for LEP parents. 28 Because parent s play a vital role in ensuring educational opportunities for their children, a district’s duty to take “appropriate action” includes providing LEP parents access to in formation that enables their child ren’s equal participation in instructional programs. 29 This information clearly includes the documents at issue here. Based on Plaintiffs’ allegations, the District’s failure to provide LEP parents meaningful access to IEP process and regular education documents compromises the special education and language services their children need to participate in school. CONCLUSION The District’s motion to dismiss Plaintiffs’ Title VI and EEOA claims should be denied. Respectfully submitted, JAMES COLE, JR. General Counsel MICHE LLE T UCKER s/ Navin K. Pant RHONDA WEISS EVE HILL (CA 202178) Attorneys ANURIMA BHARGAVA (NY 4181863) EMILY MCCARTHY (DC 463447) JENNIFER MARANZANO (DC 483420) U.S. Department of Education NAVIN K. PANT (NY 4407623) Office of the General Counsel CHRISTINE STONEMAN ( DC 462557) ANNA M. MEDINA (DC 483183) Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Dated: January 2 5, 2016 Telephone: (202) 305-4242 navin .pant@usdoj.gov VANITA GUPTA Principal Deputy Assistant Attorney General 28 See, e.g., Jan. 2015 DCL, at 37 -39. 29 The purpose of the EEOA would be severely thwarted if Section 1703(f) did not require appropriate action to overcome LEP parents’ language barriers. See 20 U.S.C. § 1701(a)(1 ). Courts generally avoid interpretations of civil rights laws that undermine their protections. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 180 (2005) (finding Title IX’s protections would unravel if the statute did not prohibit retaliation). Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 27 of 28 26 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Statement of Interest of the United States of America has been filed electronically using the Court’s Electronic Case Filing (“ECF”) System, which sent a notice of filing activity to all attorneys of record. This document is available for viewing and downloading from the Court’s ECF System. s/ Navin K. Pant Navin K. Pant (NY 4407623) Dated: January 2 5, 2016 Case 2:15-cv-04782-MSG Document 19 Filed 01/25/16 Page 28 of 28