1. 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

2. 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

3. 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

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

5. 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

6. How OCR Accomplishes Its Mission
Complaints
Compliance Reviews
Technical Assistance 6

7. 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

8. 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

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

10. 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

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

12. 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

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

14. 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

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

16. 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

17. 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

18. 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.

19. 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

20. 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.

21. 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

22. 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.

23. 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

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

25. 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…

26. 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.

27. 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.

28. 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.

29. 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.

30. 3 C’s of Documentation
Students should attempt to provide documentation that is:
Current
Comprehensive
Complete

31. 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.
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.

32. 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.

33. 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

34. Complaint Resolution Tools
Early Complaint Resolution 21

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

36. 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.

37. 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

38. 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 26

39. Howard Kallem Assistant VP and Director, Title IX Compliance Duke University