1. How to Defend Against OCR Complaints
To Accountability…and Beyond!! Brustein & Manasevit Fall Forum 2016 November 30 – December 2, 2016
How to Defend Against OCR Complaints
Jennifer Mauskapf, Esq.
Jennifer Castillo, Esq.

2. Overview Enforcement Agencies OCR Caseload and Initiatives
Case Processing Manual & What to Expect…
Receiving,
Responding, and
Resolving a Complaint
Resources

3. Enforcement Agencies
US Dept. of Education, Office for Civil Rights (OCR)
US Dept. of Justice, Civil Rights Division (DOJ CRD)

4. Office for Civil Rights (OCR)
Department of Education, Office for Civil Rights
Mission: “To ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.”

5. OCR & Civil Rights Laws 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

6. OCR Carries out mission through: Affirmative Actions Required
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

7. OCR Organization Washington, DC Headquarters Assistant Secretary
12 Enforcement Offices

8. US Department Of Justice (DOJ)
Department of Justice, Civil Rights Division
Mission is to “uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society”

9. DOJ Civil Rights Division
Enforces a broader range of statutes including:
The Civil Rights Act of 1965
Title III of The Americans with Disabilities Act of 1990
Sections 504 and 508 of the Rehabilitation Act of 1973
May enforce IDEA and Title II of the ADA upon referral from other governmental agencies

10. DOJ CIVIL RIGHTS DIVISION
Headquarters in Washington, D.C.
Division is made up of 11 sections including the Educational Opportunities and Disability Rights sections
Disability Rights Section Activities:
Enforcement
Certification
Negotiated Rulemaking
Coordination
Technical Assistance

11. OCR Staff Level and Complaints Received Source: OCR FY 2017 Budget Request

12. Complaint Caseload FYs 2014-2015 Source: OCR Report to the President

13. Title VI Complaint Issues, FY 14-15 Source: OCR Report to the President

14. Title IX Complaint Issues, FY 14-15 Source: OCR Report to the President

15. Disability Complaint Issues, FY 14-15 Source: OCR Report to the President

16. OCR Proactive Enforcement
CRDC
Inter/Intra Agency Initiatives
Guidance/Dear Colleague Letters (DCLs)
Compliance Reviews
Monitoring of Resolution Agreements
Website Update

17. OCR Case Processing manual (CPM)
The Case Processing Manual (CPM) provides OCR with the procedures to promptly and effectively investigate and resolve complaints, compliance reviews, and directed investigations to ensure compliance with the civil rights laws enforced by OCR. Source: OCR Case Processing Manual.

18. Case Processing Manual (CPM)
Filing of the Complaint
Investigation
Ways To Resolve
Rapid Resolution
Early Complaint Resolution (ECR)
Resolution Agreement
302 – During Investigation
304 – Upon Completion of Investigation
Monitoring & Closure

19. Investigation: Receipt of the Complaint/Data Request
OCR Issues Notification Letter
Generally includes simple statement of allegation(s)
Includes Data Request
Copy of actual complaint filed not provided

20. Receipt of the Complaint/Data Request Review

21. Gathering Documents in Response to the Data Request…
Relatively Short Deadline
Data request list often exhaustive
May require large and varying number of documents. E.g.:
Student records
Correspondence related to allegation(s)
Policies and Procedures
Data related to similar situations (systemic issue?)
May require further internal investigation as to allegation(s)
Identify personnel responsible for gathering documents and tracking information related to the complaint

22. Responding to the Data Request
Included with Notification Letter
Drafted based on information received from the complainant
Opportunity to set out the facts related to the student and the complaint

23. Interviews of District Personnel
OCR may request interviews with specific personnel
Prepare for Interviews
Interviewee Rights
Component of entire data submission   

24. Possible Outcomes of an OCR Complaint

25. Early Complaint Resolution (ECR) Process
Mediation-like Process
Both parties must agree to participate
OCR assigns ECR Team separate from Investigatory Team
Independent from Investigation
Facilitates ECR Process
Does not sign off on or endorse resolutions
Agreement to be Reached by Parties
If agreement reached  Case will be closed
OCR not a party to the Agreement
No OCR Monitoring Role
If no agreement reached  Return to Investigation

26. SAMPLE ECR Agreement

27. Voluntary Resolution Agreement (§302)
Agreement between OCR and the respondent agency to resolve the complaint prior to completion of investigation
No findings issued
Could be suggested by OCR or the respondent
OCR will present a draft of an agreement to the district for review
OCR will monitor the agreement until all of required actions have been completed satisfactorily

28. Voluntary Agreement Continued…
Respondent should weigh benefits of this option
The process is voluntary

29. Common 302 Provisions
Determining whether compensatory services may be needed for the affected student
Convening an IEP meeting to resolve outstanding issues
Holding trainings for district faculty and staff

30. Sample Voluntary Agreement

31. Completion of Investigation
If OCR completes investigation, OCR will determine whether there is sufficient evidence to support a conclusion that the agency failed to comply with one of the statutes OCR enforces
Preponderance of the evidence standard
OCR will issue a letter of findings explaining its determination
Insufficient Evidence Determination
Noncompliance Determination

32. §304 Resolution Agreement
If determination of noncompliance can be resolved by agreeing to enter into a Resolution Agreement
Still ‘voluntary’
Negotiation
Specific Acts or steps agency will take to resolve the identified compliance issue(s)
Terms vary somewhat from §302 Resolution Agreement
Failure to Reach Agreement?
Enforcement Action
Appeals

33. Monitoring
OCR will monitor agreements until it has verified all required action items have been completed.
Monitoring often requires sending evidence of meeting minutes, that required trainings were held, and/or sending pictures demonstrating that noncompliant items were remedied.

34. Consequences beyond the individual complaint…
Resolving OCR complaints may require that a district change policies, hire additional staff, train staff on a periodic basis, etc.

35. Recent Dear Colleague Letters
Guidance on Gender Equity in Career and Technical Education, June 15, 2016
Guidance on Rights of Transgender Students, May 13, 2016
Guidance on Helping Students with Diabetes, Oct. 14, 2016
ADHD Guidance, July 26, 2016
Guidance to Ensure English Learner Students Have Equal Access to a High-Quality Education, Jan. 7, 2015

36. Questions

37. Resources
ED Office for Civil Rights
DOJ Civil Rights Division
OCR FY 2017 Budget Request
OCR Report to the President FY
Case Processing Manual

38. Legal Disclaimer
This presentation is intended solely to provide general information and does not constitute legal advice or a legal service.  This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct.  Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC.  You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.