Special Education Students Swell Civil Rights Docket
A recent surge in complaints to the U.S. Department of Education's office for civil rights involving students with disabilities and other alleged discrimination likely stems from ramped-up outreach efforts and broader awareness of the agency's willingness to address such complaints, according to advocacy organizations, school administrators, and department officials.
Advocacy groups for students with disabilities welcome the increased vigilance outlined in an April OCR report, which found that nearly half of all complaints to the civil rights office continue to involve students with disabilities, with sex- and race-discrimination complaints making up a lesser part of the caseload.
But some organizations representing school districts and administrators, while maintaining they are committed to equity in education, complain in some cases that the federal government is overreaching its authority, underfunding services, and failing to consult with education leaders on the best way to resolve concerns.
Assistant Secretary of Education Catherine E. Lhamon said the record 10,000 complaints in all categories of discrimination filed in each of the fiscal years 2013 and 2014 send a clear message that her office is aggressively enforcing civil rights laws designed to end discrimination on the basis of race, color, national origin, sex, disability, and age in all programs or activities that receive federal financial assistance.
The office has issued policy guidance documents and "Dear Colleague" letters, provided more data to the public, and streamlined complaint processes in an effort to be more transparent and responsive in the past few years, OCR said in its report.
The U.S. Department of Education’s office for civil rights received nearly 20,000 complaints about various types of discrimination in fiscal years 2013 and 2014 combined. Complaints involving students with disabilities represented the largest share of those complaints.
"It is not my belief that there are more incidents of civil rights violations in the world today than there were in the past decade or more," said Ms. Lhamon. "It is my belief that there is greater community awareness that our office exists and is prepared to stand for students who need us."
She also said that the high number of disability complaints "speaks to the degree to which we continue to see disability discrimination in our schools today."
Tallying the Complaints
The Education Department's office for civil rights enforces the Title II of the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973, along with other civil rights laws. Separately, its office of special education and rehabilitative services enforces the Individuals with Disabilities Education Act.
In looking at particular caseload, the office for civil rights fiscal 2013-14 report found that about half of the complaints it handled (46 percent) involved students with disabilities, alleging violations of either the ADA or Section 504. That was a higher proportion than alleged discrimination on the basis of sex (27 percent), race, and national origin (22 percent) and age (5 percent).
And while those proportions were similar in the OCR's last report covering 2009-2012, overall volume has increased across the categories since that period. In fiscal 2012, for instance, about 7,800 total complaints were filed.
Among the resolved complaints involving students with disabilities:
• Bay Village school district (Ohio)—In response to a parent complaint that the instructional day was cut short for students with disabilities because they were loaded on to buses earlier than other students, the district added a van run and changed the bus routes at a cost of about $12,000 a year. "We always would want to be in compliance. This was a time creep, and it's adjusted now," said Superintendent Clinton Keener.
• Cumberland County schools (N.C.)—After parents of students with mobility impairments alleged discrimination because a school's playground and cafeteria stage were not accessible, the district installed new playground equipment at a cost of $24,000 and worked with existing space to accommodate the students, according to David Phillips, the board attorney for the districts.
• Riverview Gardens school district (Mo.)—School officials say a new intervention team process and professional development has helped reduce discipline problems and suspensions. The changes came after a parent alleged her son, who had attention deficit hyperactivity disorder and a specific learning disability, was discriminated against because of multiple suspensions without having a formal review.
The civil rights office resolved nearly 20,000 cases in the past two years, a record, according to the recent report. The office has made changes to improve efficiency, including developing a pre-complaint online screening, expedited case review for single-issue disability complaints, and online surveys to streamline investigations.
In fiscal 2014, OCR began posting resolution agreements on its website and releasing lists of institutions under investigation. In the spring of 2014, the office released the first universal civil rights data collection since 2000, which highlighted troubling issues, such as higher rates of suspension, arrests, use of seclusion, involuntary confinement, and physical restraints among students with disabilities.
"The increased transparency and data is pushing the increase in complaints," said Denise Marshall, the executive director of the Council of Parent Attorneys and Advocates based in Towson, Md. "Parents are desperate to protect their children and to get them out from under the harsh realities of some of the things they are subjected to because of race or disability."
When information about discrimination in schools is public, change is more likely to occur, said Katy B. Neas, the executive vice president for public affairs for Easter Seals in Washington. "This administration has breathed new life into the concept of enforcement, where 15 years ago it was not as high of a priority," she said.
Still, school districts are concerned with how to provide an adequate response.
"The power of the data to help school districts understand where they still have room to grow—that's the first takeaway" of the report, said Noelle M. Ellerson, the associate executive director of policy and advocacy for AASA, the School Superintendents Association, in Alexandria, Va.
However, the federal government should also provide support to better train personnel up front and fully fund programs to serve students with disabilities. While money is not the sole solution, Ms. Ellerson said, it is "naïve" to think that districts can do better without additional support from the government.
And while transparency is good, Ms. Ellerson would like to see OCR highlight districts that are proactive in serving all students, not just those it is investigating for wrongdoing.
Francisco M. Negron, the general counsel for the National School Boards Association, also based in Alexandria, said his organization takes issue with OCR publishing some, but not all, case resolutions on its website and questions the value of naming schools under investigation before a matter is fully resolved.
The NSBA, which represents 14,000 school districts, is also concerned about OCR taking "expansive approaches to the law" without consulting policymakers on school boards about the implications, which can result in unfunded mandates, said Mr. Negron. He added that the timing of the OCR report's release is significant because it coincides with the office asking for a sizable increase in its budget for fiscal 2016.
The office is requesting an increase of $30.6 million in fiscal 2016 over the previous year to add 200 full-time employees. The recent report notes that since 1980, staffing levels at OCR have been reduced by about 50 percent.
The dominance of disability-related complaints at OCR correlates with court cases for students with individualized education programs under the IDEA, which has been a leading source of legal activity in recent decades, according to Perry A. Zirkel, professor of education and law at Lehigh University in Bethlehem, Pa. Also, there has been a rise in students with 504 plans and students pursuing postsecondary education because of the expanded eligibility standards under the 2008 amendments to the ADA.
By being more proactive with information, Ms. Lhamon said she hopes to reduce the need for OCR investigations. Issuing so many policy guidance documents is an effort to move away from a "gotcha-trapping mode," to an "information-sharing mode" to help schools fully satisfy the students' rights, she said.
Bob Farrace, the director of public affairs for the National Association of Secondary School Principals, said any discipline that removes students from instruction has to be reconsidered, and last week his organization adopted new guidance to members on discipline policies.
"This OCR report provides principals a catalyst to take a good hard look at the data in their school," he said. "We need to push back the notion of active discrimination happening in the schools or implicit bias. The fact is we all have blind spots, and what data is able to do is bring those blind spots into much clearer view."
Michael Gamel-McCormick, the associate executive director for research and policy at the Association of University Centers on Disabilities in Silver Spring, Md., said the OCR report should prompt investment in training for teachers in how to address challenging behaviors and offer positive behavioral intervention.
There is still a misconception that students with disabilities can't benefit as much from instruction as others, but this new generation of students has higher expectations, said Mr. Gamel-McCormick, adding: "If we think about that group of students having the right to the same type of instruction, the access to courses, books, websites that all students have—that's the way to be thinking. To make sure there is equal access."
Vol. 34, Issue 31, Pages 1, 21Published in Print: May 20, 2015, as Civil Rights Data Detail Increase In Complaints