1. Bradford A. King, Esq. (804) 783-7263 bking@sandsanderson.com
VSBA SCHOOL BOARD CLERKS’ CONFERENCE – November 16, What to expect When ocr pays a visit
Bradford A. King, Esq.
(804)

2. What to Expect When OCR Pays a Visit
OCR Authority and Processes
Recent Changes
Investigation Priorities

3. OCR Authority and Processes
U.S. Department of Education’s Office for Civil Rights (OCR) enforces:
Title VI of the Civil Rights Act of 1964 – prohibits discrimination on the basis of race, color and national origin.
Title IX of the Education Amendments of 1972 – prohibits discrimination on the basis of gender in educational programs receiving federal funds.
Section 504 of the Rehabilitation Act of 1973 – prohibits discrimination and harassment based on disability in programs that receive federal financial assistance.

4. OCR Authority
Title II of the Americans with Disabilities Act of 1990 – prohibits discrimination and harassment based on disability in public entities.
Age Discrimination Act of 1975 – prohibits discrimination based on age.
Boy Scouts of America Equal Access Act of 2001 – prohibits denial of equal access to school facilities or programs or discrimination against any group officially affiliated with Boy Scouts.

5. OCR Complaint Process Most common way for OCR to enforce these laws.
Complaints may be filed by anyone who believes that an education institution that receives federal financial assistance has discriminated against someone on the basis of race, color, national origin, sex, disability, or age – and need NOT be the victim.

6. OCR Complaint Process and Investigation
Once the complaint is filed OCR decides whether or not to investigate based on whether or not (1) it is already being investigated by another agency or by the school’s formal grievance procedure or (2) the complaint was made within 180 days from the last date of alleged discrimination.
Early complaint resolution is offered, but both parties must consent.

7. OCR Complaint Process and Investigation
During the investigation, OCR will review information submitted by both parties and conduct interviews with the complaining party, the school division’s employees, and other witnesses.
OCR will request documentary evidence and any other available evidence.
The goal is to obtain independent written documentation that corroborates oral statements made by the complainant or witnesses.
2015 Case Processing Manual:

8. Finding of Discrimination
A finding that a school division has violated one of the laws OCR enforces must be supported by a preponderance of the evidence; that is, evidence that it is more likely than not that the school division took the action at issue.
When there is a significant conflict in the evidence and OCR is unable to resolve that conflict, for example, due to lack of corroborating witness statements or additional evidence, OCR generally must conclude that there is insufficient evidence to establish a violation of the law.

9. Finding of Discrimination
When OCR determines that a school division has not complied with the law:
Complaint may be resolved through Agreement.
If division refuses to correct the violation, OCR issues a letter of findings to set forth the factual and legal basis for the violation.
May initiate administrative enforcement proceedings to terminate or suspend federal financial assistance to the division or refer the case to the Department of Justice (DOJ).
OCR may also move to defer any new or additional federal money to the school division.

10. Resolution Agreement
OCR will closely monitor the recipient’s implementation of the resolution agreement to ensure that the commitments made are implemented fully and effectively and that the recipient is in compliance with the statute(s) and regulation(s) at issue.
OCR will not close the monitoring of a resolution agreement until the terms of the resolution agreement are fulfilled and the school division is in compliance with the statute(s) and regulation(s) that were at issue.

11. Suspending Financial Assistance
OCR must initiate an administrative proceeding and prosecute the case.
If a deferral of funds is imposed, a Notice of Opportunity for Hearing will be issued within 30 days of the notice of deferral action.

12. Compliance Reviews
In addition to the requirement to investigate complaints filed with the agency, the regulations require OCR to initiate “periodic compliance reviews” to assess the practices of recipients to determine whether they comply with the regulations promulgated pursuant to the laws OCR enforces.
The regulations afford OCR broad discretion to determine the substantive issues for investigation and the number and frequency.
Generally, many fewer compliance reviews vs. complaints received.

13. Dear Colleague Letters
During the previous administration, OCR increasingly issued what it calls “Dear Colleague Letters” and other guidance documents addressing a variety of civil rights issues on public k-12 school campuses.
Examples:
Transgender student issues*;
Disabled students’ access to extracurricular activities;
Title IX and Pregnant/Parenting Students;
Discrimination in the administration of student discipline;
Title IX and Sexual Harassment/Violence*;
Avoiding discrimination in student enrollment practices;
Disparities in access to educational resources and access to challenging academic programming;
Bullying of students with disabilities;
English Language Learner (“ELL”) Students and Limited English Proficient Parents;
Resource guide on students with ADHD.

14. Recent Changes
February 22, 2017 Dear Colleague Letter advising that DOJ and US DOE were withdrawing two policy statements and guidance documents requiring access to sex-segregated facilities based on gender identity.
April 26, 2017, President Trump signed an Executive Order directing Education Secretary Betsy DeVos to conduct a study on whether the federal government overreaches its authority on education issues – and giving her 300 days to review and, if necessary, modify and repeal k-12 regulations and guidance issued by the education department.
June 8, 2017 internal memo from the acting assistant secretary for civil rights to regional directors advising of significant changes to investigations.

15. Recent changes (cont’d)
September 22, 2017, the US DOE rescinded its April 4, 2011 Dear Colleague Letter regarding sexual assault and its April 29, 2014 Q&A on Title IX and Sexual Violence – on the basis that the regulatory burdens were imposed without affording notice and the opportunity for public comment. DeVos: “’Rule be letter’ is over.” Simultaneously issued a new Q&A on Campus Sexual Misconduct.
October 2, 2017 – US DOE Office of Special Education and Rehabilitative Services (OSERS) rescinded 72 guidance documents as being outdated, unnecessary or ineffective – documents dating back to 1980 and addressing a myriad of special education issues.

16. Changes to Investigations As outlined in June 2017 internal memo
Ending a practice of collecting three years of data from an organization to determine if systemic issues exist. “OCR will only apply a ‘systemic’ or ‘class-action’ approach where the individual complaint allegations themselves raise systemic or class-wide issues or the investigative team determines a systemic approach is warranted through conversations with the complainant.”
Taking a more “case-by-case” rather than “one size fits all” approach.
The acting assistant secretary said changes were designed to clear a backlog of complaints.
Anticipated potential changes:
Limiting large-scale data requests;
Narrowing the scope of investigations;
Potentially narrowing of remedies;
Providing regional offices more discretion;
Encouraging voluntary resolutions.

17. Impact of New Processes
From January 21 through August 17, the following number of complaints were closed in the respective years:
2017: 7,769
2016: 4,814 (8,625 closed in all of 2016; OCR received 16,720 complaints in 2016 – 61% higher than 2015, and highest in history of the office (est. 1966))
2015: 5,858
2014: 6,276
2013: 6.098

18. 2017 Case Closures
OCR Reports that 76% of the complaints closed as of August 17 this year were dismissals; 7% were administrative closures; 2% were resolved through the early complaint resolution process; 9% were resolved with a finding of insufficient evidence; and 5% were resolved with resolution agreements.
“To enhance the successful fulfillment of OCR’s mission and the timely handling of cases, OCR has taken measures to boost efficiency by exercising technology and streamlining OCR’s operations,” OCR recently told a special education publication.

19. How do investigations play out?
School division receives notification letter:
Complaint: “Will contact the Division separately with the names of complainant and student.”
Review: “Opening because…”
Data request accompanies letter.
Usually specifies day deadline from date of letter (e.g. deadline will be closing in by receipt).
ECR does not suspend data request.

20. Data requests
Fairly typical to have requests, with subparts – but can include many more.
OCR always requests:
Narrative response to the allegation, and all documents/materials consulted for response (for complaints).
Point of contact for investigation.

21. Data requests Other common examples:
All policies/procedures for responding to complaints of discrimination (on bases of race, sex, national origin, disability, etc., depending on complaint).
Accounting of any formal/informal complaints of harassment or discrimination on basis of [protected factor] within [period] at [specified sites, or system-wide].

22. Data requests Other common examples:
Full records of investigations of any complaints or grievances.
Records of trainings.
All correspondence/communications/notes/logs between staff, between complainant and staff, between staff and other agencies, pertaining to allegations.

23. Data requests Hard to understand/answer requests:
For [period] please provide the following regarding meetings for students with disabilities/students suspected of having a disability at [school]:
The date of any IEP team or Section 504 meeting for students with disabilities or students suspected of having a disability;
Identify whether the student’s parent/guardian attended the meeting;
The reason if known, for why the parent/guardian did not attend the meeting;
Identify whether the team (IEP or 504) met without the parent/guardian; and
Identify whether the parent/guardian participated in a protected activity.

24. OCR “Hot Topics” Website accessibility;
Sexual assault/harassment (including K-12);
Other Title IX issues (sexual orientation and identity);
Disability discrimination under Title II (including “free appropriate public education” standard borrowed from IDEA);
Discipline disparities (race and disability).

25. Website accessibility
Hundreds of complaints nationwide (originating with a few complainants).
Public universities, then public K-12, now public libraries.
OCR is negotiating resolutions and/or providing time for websites to be brought into compliance.
While not official, OCR’s requested standard for accessibility is per Web Content Accessibility Guidelines (WCAG) 2.0.
Examples of settlement agreements:

26. Sexual assault/harassment
From OCR’s “issues page:” (
Title IX requires schools to take steps to prevent and remedy two forms of sex-based harassment:  sexual harassment (including sexual violence) and gender-based harassment. Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual violence is a form of sexual harassment. Sexual violence, as OCR uses the term, refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent. A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion.

27. Gender identity
From OCR’s issues page: Title IX also prohibits gender-based harassment, which is unwelcome conduct based on a student’s actual or perceived sex, including harassing conduct based on a student’s gender expression, gender identity, transgender status, gender transition, or nonconformity with sex stereotypes.
Retreat from prior “Dear Colleague” guidance letters, combined with daily updates pertaining to litigation on both sides of the issue.

28. Disability discrimination
Under Section 504 and Title II, schools must address bullying and harassment that are based on a student’s disability and that interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school. Further, if any bullying or harassing behavior interferes with the ability of a student with a disability to access educational services, the situation, if uncorrected, may constitute a FAPE violation. OCR works with other offices in the Department, as well as with the U.S. Department of Justice (DOJ), to address bullying and harassment of students with disabilities.

29. Discipline disparities
Civil Rights data collection:
Every public school district in the country must provide annual data on multiple elements, including discipline data.
Last available snapshot is for the school year. Among other findings, black students suspended/expelled at three times the rate of white students.

30. Responding to OCR
Contact investigator directly – can often yield context not contained in letter.
Seek more time (a basic explanation will justify an extension).
Clarify overbroad/unclear/impossible requests.
Always characterize response as initial and subject to amendment.

31. Questions?