The Office for Civil Rights Under New Administration Jennifer Mauskapf, Esq. jmauskapf@bruman.com www.bruman.com

OVERVIEW OCR Basics Transition Perspective Mission, Activities, Organization Transition Perspective OCR under the Current Administration To Date Looking Ahead

OCR Establishment and Mission Established by Statute: 20 U.S.C. § 3413 Mission: To ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.

Laws Enforced by OCR 1964: Title VI of the Civil Rights Act 1972: Title IX of the Education Amendments 1973: Section 504 of the Rehabilitation Act 1975: The Age Discrimination Act 1990: Title II of the Americans with Disabilities Act 2002: Boy Scouts of America Equal Access Act, ESEA § 9525

OCR Activities Carries out mission through: Complaint Investigation and Resolution Proactive Enforcement: Compliance Reviews Monitoring of Resolution Agreements Technical Assistance Affirmative Actions Required Civil Rights Data Collection (CRDC) Methods of Administration

OCR Complaint Caseload FY 2015 Source: OCR Report to the President

OCR Organization Washington, DC Headquarters Assistant Secretary 12 Enforcement Offices

OCR Leadership - Assistant Secretary Catherine Lhamon, 2013-2016 2017: Candice Jackson (Acting) Kenneth Marcus (Nominated)

OCR Staffing and Complaint Load Source: OCR FY 2017 Budget Request

OCR Budget Request, FY 2018 Final FY 2017 Appropriation: $108.5M FY 2018 Budget Request: $106.8M (~1.5% cut) Senate Legislation would provide $117M House Omnibus Bill provides $108.5M Final FY 2018 Appropriation TBD

OCR Guidance Under the New Administration

OCR Instructions to the Field re: Scope of Complaints Eliminates ‘sensitive case’ list Eliminates three years of data rule No longer a ‘one size fits all’ approach to investigation of any category of complaints Application of ‘systemic’ or ‘class-action’ approach Individual complaint made such allegation Investigative team determines warranted https://www.documentcloud.org/documents/3863019-doc00742420170609111824.html

Transgender Student Rights Joint ED/DOJ DCL Withdraws Prior Guidance https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf Notes lack of extensive legal analysis or explanation Interpretation gave rise to significant litigation State and local control in education policy Notes students are not without protections from discrimination, bullying, or harassment

Transgender Student Rights, cont. OCR Instructions to the Field re Complaints Involving Transgender Students (6/6/17) https://assets.documentcloud.org/documents/3866929/Trump-administration-s-guidance-to-Office-for.pdf Restates key points of February 2017 DCL Approach on case-by-case basis “It is permissible, for example, for one allegation in a complaint (such as harassment based on gender stereotypes) to go forward while another allegation (such as denial of access to restrooms based on gender identity) is dismissed.”

Transgender Student Rights, cont. It was very important to the secretary and to myself that our investigators not make the mistake of assuming that just because that particular guidance has been rescinded, that all complaints filed by transgender students are going to be dismissed. -Candice Jackson This guidance says that OCR gets to pick and choose which cases it will open, and it could be appropriate to dismiss for lack of jurisdiction an allegation that a transgender student is not able to access a bathroom consistent with their gender identity -Catherine Lhamon

Sexual Misconduct Guidance Press Release, 9/22/17 https://www.ed.gov/news/press-releases/department-education-issues-new-interim-guidance-campus-sexual-misconduct DCL Withdraws Guidance on Sexual Violence https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf Imposed new mandates May have been well intentioned, but led to deprivation of rights Indicates rulemaking process forthcoming Q&A on Campus Sexual Misconduct https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf

Looking Ahead… Confirming Assistant Secretary Staffing Rescission of Additional Guidance Compliance Reviews Complaint Resolution Reports to the President Budget Requests/Funding Levels

RESOURCES ED Office for Civil Rights http://www2.ed.gov/about/offices/list/ocr/index.html OCR FY 2017 Budget Request https://www2.ed.gov/about/overview/budget/budget17/justifications/z-ocr.pdf OCR FY 2018 Budget Request https://www2.ed.gov/about/overview/budget/budget18/justifications/z-ocr.pdf OCR Report to the President for FY 2015 http://www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-of-education-2015.pdf OCR Report to the President for FY 2016 https://www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-of-education-2016.pdf

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