Holding the BIE Accountable to Provide Equal Educational Opportunity to Native American Children
The Havasupai Tribe, a federally recognized Native American tribe located at the bottom of the Grand Canyon in Northern Arizona, has a school operated by the Bureau of Indian Education (BIE) that is failing to meet the standards of a basic education. According to BIE data, children attending the BIE-operated Havasupai Elementary School struggle with reading and math, and at times have received no instruction in basic subjects such as science, history, and social studies. The school has rarely offered special education services and has exacerbated students’ behavioral health challenges.
In January of 2017, Public Counsel, The Native American Disability Law Center, Stanford Youth and Education Law Project, Munger Tolles & Olson LLP, and Sacks Tierney P.A. filed a federal civil rights lawsuit against the Bureau of Indian Education on behalf of Havasupai students and organizational plaintiff Native American Disability Law Center for failing to provide educational opportunities. The lawsuit seeks compensatory education and injunctive relief, including the provision of a general-education curricula taught by fully certified teachers with access to appropriate instructional materials; special education and related services taught by appropriately trained teachers; as well as necessary wellness and mental health resources for Havasupai students.
Court
U.S. District Court for the State of Arizona
Status
Partial Settlement
Case No.
3:17-cv-08004-SPL
Filed
01/12/2017
Case Developments and Key Developments
Ninth Circuit ruling confirms federal government can be held accountable for its failure to provide general education to Native American students.
The U.S. Court of Appeals for the Ninth Circuit handed down a historic ruling confirming that the federal government can be held accountable for its failure to provide general education to Native American students. The court held that, under the Administrative Procedure Act, students at Havasupai Elementary School can compel the federal Bureau of Indian Education (BIE) to follow its own regulations and provide general educational services. The court also held that students may seek the remedy of compensatory education to make up for educational services that should have been provided, a move that is likely to have profound reverberations in primary and secondary education nationally.
Documents
Ninth Circuit – Opening Brief on Appeal
A group of student plaintiffs and the Native American Disability Law Center filed their opening brief in the 9th United States Court of Appeals. The brief seeks to reverse a court decision that prevented the students from challenging the Bureau of Indian Education’s failure to comply with discrete legal requirements at Havasupai Elementary School. The Havasupai Tribe, as well as several organizations and professors, filed amicus briefs in support of the plaintiffs.
Documents
Partial Settlement Reached
Arizona District Court Judge Steven Logan approved a historic settlement in a civil rights lawsuit brought by students attending Havasupai Elementary School and the Native American Disability Law Center (NADLC) addressing the wholesale denial of educational opportunities for Native American students with disabilities. The settlement resolves only the claims challenging the BIE’s failure to meet the needs of students with disabilities; the Plaintiffs will appeal the Judge’s denial of the claims challenging the denial of basic general education to the 9th Circuit Court of Appeals.
Documents
Motion for Summary Judgment
Documents
Ruling on Motion to Dismiss
Plaintiffs won their first major court victory. In a historic ruling, a federal court in Arizona denied the federal government’s motion to dismiss claims brought by Havasupai students and the Native American Disability Law Center.
The court ruled, for the first time in the nation, that the federal government must meet the educational needs of Native American students attending schools run by the federal Bureau of Indian Education (BIE) by affirmatively addressing the mental health and wellness needs of students impacted by trauma and childhood adversity. Click HERE, to read plaintiff statements in response to the motion to dismiss ruling.
Documents
Partial Motion to Dismiss Filed
The Department of Justice filed a partial motion to dismiss, which, among other things, sought to dismiss students not currently enrolled in Havasupai Elementary School from the case and to dismiss student claims for appropriate mental health and wellness resources. On September 5, 2017, the Havasupai Tribe and the Society of Indian Psychologists filed amicus briefs in support of the student plaintiffs. On October 24, 2017, the Judge heard oral argument on the Defendants’ motion. Because the motion filed by the Defendants is only a partial motion to dismiss, the case will move forward regardless of the Judge’s ruling.
Complaint Filed
Havasupai students sue the U.S. government for failure to provide equal educational opportunity.
Documents
Clients
Below are profiles of some of the Havasupai student plaintiffs who are bringing suit against the federal government to vindicate their educational rights:
- Stephen C. is an 11-year-old Havasupai boy who lives with his grandparents in Supai, Arizona. Stephen, who is now in the 6th grade at Havasupai Elementary School, can barely read or spell due to the scarce education provided at the school. Even though Stephen has ADHD and is eligible for special education services and counselling, he has not received the resources he needs to learn. Instead, Stephen has been repeatedly pushed out of school and subject to excessive punitive discipline. For example, Stephen, who is only 11 years old, has been prosecuted in federal court for pulling the wires out of the back of a school computer monitor. To matters worse, Stephen has not received any instruction since November 21, 2016, except for about one hour of education each week. Before that date, Stephen was routinely sent home early, missing about 50% of instructional time, because the school was unable to meet his behavioral and mental health needs.
“The BIE has not provided my grandson with a decent education. My grandson has special needs, but the school is not even trying to help him. Instead, he is sent home from school almost every day. He is in sixth grade, but he can barely read or spell basic words.”
–Frank C., grandfather of Plaintiff Stephen C. a member of the Havasupai Tribe.
- Anna D. is an 8-year-old Havasupai girl enrolled in the 3rd grade at Havasupai Elementary School. Anna’s teachers have repeatedly left during the middle of the school year. Anna’s 1st grade teacher, for example, switched at least 5 times over the course of a single school year. Although Anna has a keen interest in basketball and tribal-cultural activities, there are no opportunities for her to pursue these interests through school. She has never even been offered to the chance to participate in a school-sponsored field trip. The only structured activity outside of school that her mother Elsa D. can recall was when Anna and her classmates picked up trash outside of the school for Earth Day.
- Durell P. is a 13-year-old Havasupai boy who lives with his mother Billie P. Durell is a 7th grader at Havasupai Elementary School. Since he was 8-years-old, Durell has only been permitted to attend school for about 20% of the school year. This past semester, for example, Durell was relegated to a homebound placement and received as little as 5 hours of instruction per week. Because the school lacks a system to address his behavioral and mental health needs, Durell has not attended school full-time for over 4 years, leading to large deficits in his academic performance. His mother Billie was forced to place Durell in a residential placement in Utah for 45, as a condition of his continued enrollment at the school. During the placement, Durell was subjected to repeated use of physical restraints and was unable to communicate with his family for long periods. In addition, Durell, who has multiple disabilities and was the victim of sexual abuse as a young child, is being criminally prosecuted for assault for pushing a teacher. He spent over a week at a federal detention facility.
- Taylor P. is 6-year-old Havasupai girl and the sister of Durell P. Taylor P. is enrolled in kindergarten at Havasupai Elementary School. Even though this is Taylor’s first year in school, the lack of staff at the school has led to dangerous conditions when children are routinely left unsupervised. For example, Taylor was recently pushed against a wall and choked by another student while her teacher was not watching. In another incident, Taylor was sexually assaulted by a classmate on the playground. In neither situation was Taylor’s mother Billie informed by the school of what had happened.
- Levi R. is a 13-year-old Havasupai boy who attends 8th grade at a public school in Yavapai County, Arizona. His mother Laila R. recently moved her family out of Supai due to the inadequacy of the education provided at the school. Like other students with disabilities, Levi was not provided with a functioning system of special education, and instead subject to traumatic punitive discipline. When he was only 10 years old, Levi was forcibly restrained in the classroom. During this incident, a teacher sat and laid on Levi while he repeatedly cried out and yelled, “I can’t breathe. Get off of me, you’re hurting me.” Levi was then placed on a restricted-hours schedule, depriving him of critical learning time for years. His mother Laila was repeatedly told there was not enough staff to hold an Individual Education Plan (IEP) meeting to discuss Levi’s special education needs. As a result of these experiences, Levi is behind in all academic areas, but particularly reading. In the 5th grade, for example, Levi was only reading at a 2nd grade level.
- Leo R. is a 15-year-old Havasupai boy, and the older brother of student plaintiff Levi R. Leo attended Havasupai Elementary School from kindergarten through the 8th Because the Havasupai Elementary School does not provide a high school education, Leo was forced to leave his family in order to continue his education at a public high school in Arizona. However, due to the deficient education Leo had received in Supai, he struggled academically in the 9th grade, failing multiple classes and passing others with Ds. Recently, Leo’s mother Laila finally decided to move her family out of Supai. Leo is currently in the 10th grade at a public school in Yavapai County.
Organizational Partners
The Havasupai Tribe
- The Havasupai Tribe is a federally recognized Indian Tribe located in northwestern Arizona. The reservation is governed by a Tribal Council elected by tribal members pursuant to the Tribe’s Constitution. A seven-member committee, the Election Board, is tasked with organizing and overseeing the election of the Tribal Council.
Legal Team
Public Counsel
- Tara Ford, Senior Counsel
- Kathryn Eidmann, Director of Litigation
- Mark Rosenbaum, Robins Kaplan Director – Opportunity Under Law
- Rocio Garcia, Organizer & Paralegal
Our Co-Counsel
The Native American Disability Law Center is a non-profit organization whose mission is to help protect the legal rights of Native Americans with disabilities living in the Four Corners of Arizona, Colorado, New Mexico, and Utah. Native Americans with disabilities face unique legal issues that require advocacy designed to enforce, strengthen and bring their legal rights into harmony with their communities. The Law Center strives to advocate with a generosity of spirit to ensure that Native Americans with disabilities have access to justice and are empowered and equal members of their communities and nations. The Law Center accomplishes its work by collaborating with tribal nations to advance the rights of persons with disabilities, providing direct legal services to individual clients, providing training and education to individuals with disabilities and their families and communities, and by bringing impact litigation to protect and promote the rights of Native Americans with disabilities. The Law Center has offices in Farmington and Gallup, New Mexico. Learn more at www.nativedisabilitylaw.org.
Public Counsel is the nation’s largest pro bono law firm. Founded in 1970, Public Counsel strives to achieve three main goals: protect the legal rights of disadvantaged children; represent immigrants who have been the victims of torture, persecution, domestic violence, trafficking, and other crimes; and foster economic justice by providing individuals and institutions in underserved communities with access to quality legal representation. Through a pro bono model that leverages the talents and dedication of thousands of attorney and law student volunteers, along with an in-house staff of more than 75 attorneys and social workers, Public Counsel annually assists more than 30,000 families, children, immigrants, veterans, and nonprofit organizations and addresses systemic poverty and civil rights issues through impact litigation and policy advocacy.
Stanford Youth and Education Law Project is an in-house legal and teaching clinic advocating on behalf of disadvantaged youth and their communities to ensure that they have access to equal and excellent educational opportunities. For more information, visit https://law.stanford.edu/youth-and-education-law-project/
Munger, Tolles & Olson LLP is a full-service law firm that has been known for over fifty years for trying bet-the-company cases and negotiating deals that shape our corporate landscape. Our nearly 200 lawyers represent clients in a broad range of complex and high-profile matters in the areas of corporate, litigation, real estate and financial restructuring. The firm’s lawyers include 14 former clerks for U.S. Supreme Court justices, 11 former federal prosecutors, four fellows in the American College of Trial Lawyers, and two former chairs of the American Bar Association Section of Litigation. Munger Tolles has been consistently ranked on The American Lawyer’s A-List since its inception in 2004, including four years in the top spot.
Sacks Tierney is a widely respected mid-size law firm, where clients enjoy personal attention, performance that exceeds expectations, and uncompromising commitment to professionalism and innovation. Since its founding in 1960, Sacks Tierney has distinguished itself by its skill, energy, integrity, community leadership, pro bono volunteerism, and pioneering expertise in legal areas of special value including Indian Law and Tribal Relations. It is through these values, strong relationships with Indian Nations and attorneys’ knowledge of pertinent federal laws that Sacks Tierney provides quality representation to Native American clients on tribal lands. Through its affiliation with MERITAS, a global network of law firms serving 230 markets, Sacks Tierney meets clients’ needs locally, tribally and internationally. For more information, visit www.sackstierney.com.
The American Civil Liberties Union of New Mexico (ACLU-NM) has worked since 1962 to preserve and advance the civil rights and legal freedoms guaranteed by the United States Constitution and the Bill of Rights. It is an affiliate of the national American Civil Liberties Union. ACLU-NM focuses on a host of civil and constitutional rights, including LGBT equality, freedom of speech, reproductive freedom, immigrants’ rights, privacy concerns, police abuses, fair treatment of prisoners, and more. It is the largest civil liberties organization in New Mexico with over 6,000 members, working in the courts, the legislature and our communities to protect the rights of all people living in New Mexico.
Press
- Ninth Circuit Ruling – Press Release, 3/16/2022
- Settlement Press Release, 10/2/2020
- Press Release, 1/12/2017
- Press Conference Statements (2017):
- Alexis DeLaCruz, staff attorney, Native Disability Law Center
- Frank C., grandfather of Plaintiff Stephen C.
- Laila R., mother of Plaintiffs Levi R. and Leo R.
- Chairman Don E. Watahomigie, Havasupai Indian Tribe
- Kathryn Eidmann, staff attorney, Public Counsel
- Bryan Heckenlively, partner, Munger, Tolles & Olson LLP
- Media Coverage:
- KJZZ, “Havasupai plaintiffs hope their lawsuit forces change at the Bureau of Indian Education,” April 19, 2022
- AP, “Federal court revives claim in Havasupai education case,” March 17, 2022
- KJZZ, “Arizona tribe members settle education claims in lawsuit,” October 6, 2020
- AP, “Arizona tribe members settle education claims in lawsuit,” October 5, 2020
- Arizona Republic, “Havasupai students who sued for a better education reach settlement with federal government“, October 2, 2020
- IndianZ.com, “Lessons Lost: Indian students have been shortchanged for generations,” August 10, 2020
- AP, “Lawsuit seeks education reform at Native American schools,” July 24, 2020
- The Atlantic, “The Longstanding Crisis Facing Tribal Schools,” Jan 12, 2017
- Washington Post, “U.S. government has ‘dismally failed’ to educate Native American children, lawsuit alleges,” Jan 12, 2017
- The Huffington Post, “Native American Students Sue The U.S. Government Over Dismal Education,” Jan 12, 2017
- Mic, “9 Havasupai Native American children are suing the US Bureau of Indian Education. Here’s why.” Jan 12, 2017
- The Chronicle of Social Change, “Bureau of Indian Education Failed to Educate Tribal Youth, Lawsuit Alleges,” Jan 12, 2017
- Education Week, “Tribal Students Sue Feds Over ‘Shock the Conscience’ Schooling Conditions,”Jan 12, 2017
- Arizona Daily Sun, “Lawsuit faults Bureau of Indian Education schools,” Jan 13, 2017
- National Native News, News Broadcast at 1:47, Jan. 13, 2017
- KJZZ 91.5, “Lawsuit: US Failed To Provide Havasupai Children With Education Materials, Classes,” Jan. 13, 2017
- The Arizona Republic, “Havasupai students sue federal government for better teachers,” Jan. 18, 2017
- Cronkite News, “Lawsuit claims Havasupai students are deprived of ‘basic general education’,” Jan. 18, 2017
- Navajo Times, “Havasupai students, NADLC, sue the BIE,” Jan. 20, 2017
- The New York Times, “Barely 2 R’s Are Taught at School That Led Tribe to Sue U.S.,” Jan. 23, 2017
- Indian Country Today, “Havasupai Children File Suit Against BIE for Failed Education,” Jan. 26, 2017
- Indian Country Today, “Landmark Civil Rights Lawsuit Pits Havasupai Children Against the BIE,” Feb. 23, 2017
- The Republic, azcentral.com, “A hidden tribe, a disastrous school and finally, a cry for help,” Mar 15, 2017
- Mic, “On the Havasupai Indian Reservation, a failing school has sparked a battle against the government,” April 30, 2017
Frequently Asked Questions
Below are the answers to commonly asked questions about this federal civil-rights action vindicating the educational rights of Native American children.
What is this case about?
This case is about ensuring that all Havasupai children have access to equal educational opportunities through the only source of public education provided on the reservation: the Havasupai Elementary School, which serves grades K through 8.
For years, Havasupai children, including those with disabilities, have been denied the educational opportunities to which they are entitled. The school, for example, does not even offer instruction in subjects beyond reading and math, and is continually plagued by high turnover, vacancies, and closures. These problems, along with numerous others, have profoundly harmed children’s educational outcomes. This case seeks to hold the federal government accountable for honoring its legal obligations toward Native American students so that all children have the opportunity to learn and fulfill their potential.
What are the goals of the lawsuit?
The goals of this lawsuit are to ensure that Native children have access to the education to which they are legally and morally entitled. Specifically, this suit aims to hold the BIE legally responsible for the quality of the educational opportunities and wellness resources offered at BIE schools. It asks the BIE to comply with its obligation to expand the educational curriculum and learning resources at the Havasupai Elementary School; to provide a system for the delivery of special education services to students with disabilities; and to offer appropriate wellness and mental health resources for all students.
What is the Havasupai nation and where is it located?
The Havasupai are a federally recognized Native American tribe who have resided for centuries in the base of the Grand Canyon. The Havasupai reservation currently consists of tribal land along the western corner of the Grand Canyon’s South Rim in Arizona.
Who has the responsibility for providing education to Havasupai students?
Under federal law, it is the federal government, specifically the Bureau of Indian Education, which carries the ultimate legal responsibility for providing equal educational opportunities to students at the Havasupai Elementary School. The Bureau of Indian Education directly operates and funds the Havasupai Elementary School.
What is the Bureau of Indian Education (BIE)?
The Bureau of Indian Education (BIE) is a federal agency within the Department of the Interior, which is responsible for ensuring quality educational opportunities for Native American youth. The BIE funds approximately 184 elementary and secondary schools across the country, and directly operates about 58 of those schools, including the Havasupai Elementary School. In the 2006-07 school year, the BIE school system served nearly 48,000 Native students.
Who is bringing this case?
This case is being brought by four Havasupai children and the Native American Disability Law Center, a non-profit legal services organization that serves the needs of Native Americans with disabilities in the Four Corners region. Together, these plaintiffs seek to ensure the adequacy of the educational opportunities afforded to children attending the Havasupai Elementary School.
Who are the Defendants?
The lawsuit is against the United States government. Specifically, the Defendants are the federal agencies, and officials in those agencies, responsible for ensuring the quality of the educational opportunities afforded to Native children attending BIE-operated schools, including the Havasupai Elementary School.
What laws are the defendants violating?
The defendants are in violation of numerous federal laws regulating the content and quality of the education provided at BIE-operated schools. These laws mandate, for example, that BIE schools provide a comprehensive general education curriculum that includes a diverse range of subjects and content areas. They further require the provision of appropriate instructional resources and extracurricular activities; the engagement of the local community in school decision making; and the integration of Native language and culture into school classrooms. The federal government has wholly failed to meet any of these requirements, as well as a number of other laws related to the provision of general education.
In addition, the government has violated Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination in educational programs operated by the federal government. Specifically, the BIE has failed to provide a system for the delivery of special education to children with disabilities or provide necessary wellness and mental health supports to ensure that all Havasupai children have an opportunity to learn. Moreover, the BIE has failed to comply with federal laws protecting the procedural rights of children with disabilities and their families, and ensuring that they are properly identified and notified of their educational rights.
Who are the lawyers?
The lawyers bringing this suit are a coalition of legal services organizations and private law firms delivering pro bono services. This coalition includes three legal non-profits (the Native American Disability Law Center, Public Counsel, and the American Civil Liberties Union of New Mexico), the Stanford Youth and Education Law Project, and two law firms (Munger, Tolles and Olson LLP and Sacks Tierney P.A.).
Where is the case being filed?
The case is being filed in federal court in the United States District Court for the District of Arizona.
How can I get involved?
You can get involved by contacting your locally elected congressional representatives, and sharing news about this story with your friends and family on social media. Stay updated on the case by visiting Public Counsel’s website or www.unitefornativestudents.org.
Does the tribe support the case?
Yes, this case is brought with the support of the tribe. The Havasupai Tribal Council has passed a resolution in support of our efforts to improve education through this lawsuit.
Why is the school located in a relatively remote location?
The remoteness of the school in Supai stems from a history of federal government discrimination toward the Havasupai and their right to reside on their once-expansive tribal homelands. The center of the Havasupai reservation is Supai, which is located at the base of Havasu Canyon within the Grand Canyon. The Havasupai reservation represents a fraction of the Havasupai’s original homelands in the Grand Canyon. Over time, a legacy of coercive federal policies forced the Havasupai onto a reservation that consisted mostly of lands at the canyon bottom. In light of this history, it is incumbent on the federal government to provide adequate educational opportunities to Havasupai children in their tribal communities and on the land that the federal government set aside for the use of the Havasupai people.
Why can’t families move out of the canyon in search of a better education?
For the Havasupai, and many Native communities, tribal lands form an integral part of their identity as a people. The Havasupai remain deeply rooted in their ancestral homelands in the Grand Canyon, where they have resided for centuries. In fact, federal regulations specify that the federal government provide a public education “close to home,” 25 C.F.R. § 32.4(p), and the vast majority of BIE schools are operated on reservations where children’s families and communities are located. In light of past federal policies that forced Native children to attend abusive and assimilationist boarding schools, many families are understandably eager to have their children educated in their community, where they can learn about their culture and identity, and where community members can remain invested and involved in local schools.
What is a culturally relevant education and why is it important?
Culturally relevant education refers to a holistic approach that integrates Native history, values, language, and cultural into the school curriculum and delivery of that curriculum in the classroom. Culturally relevant education carries significant academic benefits for students, and is consistent with federal regulations, which mandate a system of multilingual and multicultural education at BIE schools
Can the same educational problems be found at other BIE schools?
The problems at the Havasupai Elementary School are emblematic of problems faced by children at other BIE schools across the country. As the federal government has long been aware, BIE schools have been lagging behind for years. Numerous federal officials have acknowledged these profound federal failures in tribal education. Secretary Sally Jewell of the Department of the Interior, for example, openly declared before the Senate Indian Affairs Committee that “Indian education is an embarrassment to you and us.” As detailed in numerous federal reports, including a string of investigations from the federal government’s General Accounting Office, these problems are not unique to Havasupai but have permeated the network of schools that the BIE helps administer across the country, causing similarly indefensible deficits in student achievement.
Does this lawsuit consider the importance of tribal sovereignty?
Yes, this lawsuit emphasizes the need for greater tribal involvement and community oversight in school decision-making, as well as the critical importance of Native language and culture in the classroom. Although the BIE is the federal government agency charged with administering the Havasupai Elementary School, it is legally bound to provide specific avenues for community engagement in school decision-making, and to ensure that the education provided is culturally relevant and reflective of Native culture, language, and history, in consultation with the local community that the school is meant to serve.
How is the federal responsibility to Native American students different than the federal responsibility to other students?
Consistent with longstanding federal law and policy, Native American students are entitled to educational opportunities that are equal to or exceed those provided to other students around the nation. Specifically, the federal government is bound by a specific set of regulations and laws that ensure the quality and appropriateness of the general education at BIE schools, and that additionally provide for the integration of Native language and culture into the educational system.
Isn’t public education a state law issue?
For the network of BIE schools serving reservation communities, including the Havasupai Elementary School, public education is provided directly by the federal government to Native students through the BIE. This federal responsibility for Native education stems from well-established federal law and reflects the longstanding trust relationship between the federal government and Native American tribes.
What is the trust doctrine?
The trust doctrine refers to a series of legally enforceable fiduciary obligations arising from the historic trust relationship between the federal government and Native American tribes. Under the obligations of the trust doctrine, the federal government is responsible for protecting Native rights, lands, assets, and other resources, including honoring its commitments with respect to Native education.
