The U.S. Department of Education Office for Civil Rights OCR 101 (+ Disability) NCSDAA/NCACCIA March 13, 2017 This presentation is not endorsed by OCR, does not present legal advice, and does not represent the views of Duke University Why I’m here – speaker from OCR had to cancel at last minute (not unusual for OCR to cancel public presentations by staff during a transition)…and, since I used to work there, the next best thing… 1

Objectives for Today Introduce OCR and describe OCR’s mission Explain how OCR carries out its mission Increase awareness about OCR and civil rights laws that protect students and others from discrimination 2

What is OCR? Federal civil rights enforcement agency The mission of the Office for Civil Rights is to ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights 3

OCR Across the Country www.ed.gov/ocr The Washington DC Regional Office covers DC, VA, NC, and SC 4

What Does OCR Do? OCR enforces several civil rights laws. Together, these laws prohibit discrimination on the basis of race, color, national origin, sex, disability, and age. 5

How OCR Accomplishes Its Mission Complaints Compliance Reviews Technical Assistance 6

OCR’s Jurisdiction OCR has jurisdiction over programs and activities that receive financial assistance from the Department of Education. These may include: state education agencies elementary and secondary school systems colleges and universities state vocational rehabilitation agencies ”Program or activity" means all of the operations of a college, university, or other postsecondary institution, or a public system of higher education 7

OCR’s Jurisdiction OCR also has jurisdiction over certain public entities under Title II of the Americans with Disabilities Act of 1990, which prohibits disability discrimination by public entities whether or not they receive federal financial assistance. Public school districts, public colleges and universities, and public libraries 8

Title VI of the Civil Rights Act of 1964 Prohibits discrimination on the basis of Race, Color, or National Origin 9

Title VI Protections Examples of prohibited discrimination may include: Disciplining students differently on the basis of race, color or national origin Assigning a student to an educational program or class on the basis of the student’s race Grading a student differently based on race, color or national origin Harassment on the basis of race, color, or national origin 10

Title IX of the Education Amendments of 1972 Prohibits discrimination on the basis of Sex 11

Title IX Protections Examples of prohibited discrimination may include: Grading a student differently based on sex Discrimination on the basis of sex in providing opportunities to participate in athletics Sexual or gender-based harassment Discrimination on the basis of sex in academic counseling and advice Failure to provide accommodations for pregnancy 12

Age Discrimination Act of 1975 Prohibits discrimination on the basis of Age 17

Age Discrimination Act Protections Examples of prohibited discrimination may include: Refusing to admit an applicant to a postsecondary program because of the applicant’s age Terminating a graduate student’s enrollment because of the student’s age 18

Prohibit discrimination on the basis of Section 504 of the Rehabilitation Act of 1973 & Title II of the Americans with Disabilities Act of 1990 Prohibit discrimination on the basis of Disability 13

Section 504 and Title II Protections Examples of prohibited discrimination under both Section 504 and Title II may include: Failure to provide appropriate academic adjustments to qualified student with disability Denying benefits of program or activity because school’s facilities are inaccessible Grading student differently based on disability Harassment based on disability Refusing to allow student to use service animal 14

Definition of Disability A physical or mental impairment which substantially limits one or more major life activities, or A record of such impairment, or Being regarded as having such impairment Substantial limitation as to the average person in the general population. 15

Definition of Disability “Disability” to be defined broadly, including “Major life activities” “Substantial limitation” Mitigating measures not considered ADA Amendments Act of 2008. MLAs – ask for examples -- caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working’ Substantial limitation – to be defined broadly. Something less than a significant or severe restriction. Consider, nature of the impairment, its severity, duration, and impact. Can be an intermittent limitation, e.g., from periodic instances of depression. Can even apply to relatively short term conditions, if sufficiently severe. Mitigating measures – consider the nature of the impairment without, e.g., medication. Similarly for self-developed accommodations – a student with a learning disability who has managed to do okay in school by working harder than others.

Accommodations College must make accommodations necessary to ensure requirements do not discriminate on the basis of disability Examples of possible modifications are: change in length of time to complete a program substitution of courses adaptation of manner in which courses are conducted auxiliary aids for students with impaired sensory, manual, or speaking skills Examples of auxiliary aids: Taped texts Notetakers Interpreters Readers Adapted classroom equipment Braille versions of written materials

What Is Not Required College is not required to change academic requirements that are essential to The instruction being pursued by the student; or Any directly related licensing requirements. College is not required to alter the fundamental nature of its program or that would impose undue financial or administrative burdens OCR and the courts gives appropriate deference to the academic discretion of a college.

What Is Not Required Colleges are not required to provide devices or services of a personal nature. Examples: Attendants Individually prescribed devices Readers for personal use or study

Accessible Communications & Auxiliary Aids (ADA) Communications must be “as effective as” communications with persons without disabilities. Public entity must furnish “appropriate” auxiliary aids and services where necessary for equal opportunity. Public entity must give “primary consideration” to requests of person with disability but is not required to honor preference if effective alternative available.

Tests & Examinations Test format and administration should measure a student’s achievement, not the student’s impaired sensory, manual, or speaking skills (except where such skills are the factors the test purports to measure). Examples: tape vs. print extended time reader

Initiating the Process If a student wants an accommodation, they have the initial obligation to provide notice of a disability and need for accommodation.

2 Steps to Making Decisions One: Determine whether individual has an impairment that substantially limits a major life activity (is it a disability?) Two: Determine whether an accommodation is needed and, if so, what Once student requests an accommodation, up to college to…

Documentation Postsecondary schools may establish reasonable standards for documentation. Some schools require more documentation than others. The following list identifies the type of documentation some schools require.

Documentation Some Schools Require Diagnosis of physical or mental impairment. Evaluation by a qualified professional. The name, title, and professional credentials of the evaluator, including information about license or certification as well as the area of specialization, employment, and state in which the individual practices.

Documentation cont’d Current testing and evaluation data. Documentation demonstrating existing disability. While some disabilities may be life-long, documentation may be required to demonstrate the current impact of those disabilities.

Documentation cont’d Demonstration of the need for services based on the individual’s functional limitations and current level of functioning in the educational setting.

3 C’s of Documentation Students should attempt to provide documentation that is: Current Comprehensive Complete

Paying for Evaluation Colleges are not required to conduct or pay for new evaluation to document student’s need for an accommodation. This may mean the student must pay or find funding to pay an appropriate professional to do it. In order to clarify the documentation and obtain needed information, it is often helpful for the school to simply talk to the student’s diagnostician with the student’s permission. https://www.ahead.org/learn/resources/docu mentation-guidance Note: While schools can insist on appropriate documentation as part of the accommodations process, many schools have eased up on their requirements…particularly after the ADAAA broadened the definition of disability. The Association on Higher Education and Disability, the professional association for disability support services counselors, has guidelines that – for many “routine” disabilities – suggest reliance primarily on the student’s personal account, perhaps supplemented by documentation available from high school or the military. This is particularly true for many community colleges, which recognize the expense of obtaining documentation for many types of disabilities and often have a “welcoming all comers” approach.

Interactive Process The school and student should engage in an interactive process to determine whether an accommodation is required and, if so, what accommodation is appropriate.

OCR Enforcement An important responsibility of OCR is to investigate and resolve complaints of discrimination promptly and appropriately OCR conducts compliance reviews which permit OCR to target resources on class- wide compliance problems that appear particularly acute As a threshold matter, 60%-70% of individual complaints are dismissed by OCR without investigation, e.g., they are untimely (filed more than 180 days after the alleged discrimination), don’t provide enough information to even suggest the possibility of discrimination (“I was kicked out of the program because I am [Black, Hispanic, Arabic, etc.” “What makes you think that?” “Didn’t you hear me? I said I was [Black, Hispanic, Arabic, etc.]!”), no jurisdiction (complaints against private companies), etc. 20

Complaint Resolution Tools Early Complaint Resolution 21

Complaint Resolution Tools Voluntary resolution before the conclusion of an investigation Belly up – just tell us what to do. Generally, no findings.

Complaint Resolution Tools Investigations and investigative determinations If find a violation, give school opportunity to voluntarily correct it. If school refuses, can initiate a process to withhold all or part of federal funds or refer to DOJ for litigation.

Technical Assistance OCR provides technical assistance to help institutions, parents and students under- stand their rights and responsibilities. Types of technical assistance: Presentations Responses to telephone and written inquiries Workshops Consultations

How To Reach OCR Website: www.ed.gov/ocr DC Regional Office: U.S. Department of Education Office for Civil Rights 400 Maryland Ave., SW Washington, DC 20202-1475 202 453 6020 Email: ocr.dc@ed.gov 26

Howard Kallem Assistant VP and Director, Title IX Compliance Duke University 919 684 1437 Howard.Kallem@duke.edu