New Guidelines Let Civil Rights Office Ignore Cases From Serial Complainers
The U.S. Department of Education’s office for civil rights has started dismissing hundreds of disability-related complaints, following new guidelines that say such cases will be dismissed when they represent a pattern of complaints against multiple recipients.
The office enforces laws such the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, both of which prohibit public entities from discriminating against individuals based on disability. It also enforces Title IX, which prohibits discrimination based on sex, and other laws that prohibit discrimination based on age, race, color, or national origin.
Marcie Lipsitt, a special education advocate in Franklin, Mich., estimates that over the past two years, she has filed more than 2,400 complaints to the Education Department over educational entities that have websites that are inaccessible to those who are blind or visually impaired, or who cannot use a mouse to navigate a website. Lipsitt’s targets have included school systems, universities, library systems, and state departments of education.
This month, Lipsitt began receiving notices that the cases were being dismissed, including complaints that had been filed months ago and were in the process of being investigated. The dismissals were not made on the merits of the case. Rather, she was told that the civil rights office now was following a new process established March 5 in a revision of its “case processing manual.” The manual states that complaints will be dismissed when they are a “continuation of a pattern of complaints previously filed with OCR by an individual or a group against multiple recipients, or a complaint is filed for the first time against multiple recipients that, viewed as a whole, places an unreasonable burden on OCR’s resources.”
In such cases, OCR says, it may issue technical assistance or conduct a compliance review, but Lipsitt hasn’t seen any sign that those reviews or assistance are coming.
“Nothing in the law says anything about not investigating any complaint when there’s a burden on resources. This flies in the face of Section 504 and the ADA,” Lipsitt said. “They could apply this to anything, it’s so subjective.”
In addition to the requirement to dismiss complaints if they reflect a burdensome pattern, the new case processing manual also gives complainants 14 days to provide additional information for a case instead of 20 days as had been allowed previously. The manual also eliminates a process that complainants could use to appeal a decision, and says that complaints are not subject to investigation if they’re based exclusively on “statistical data, media reports, journals/studies and/or other published articles as the basis for the alleged discrimination.”
Previously, statistical data alone could not be the cause of a complaint, but that data could be used to back up a complaint when presented with other facts and circumstances. The previous manual did not eliminate media reports and journal articles as the potential source of a complaint.
The office for civil rights’ new case processing manual “is the product of many months of collaboration among OCR career investigators and career managers reflecting OCR employees’ commitment to robustly investigating and correcting civil rights issues,” said Elizabeth Hill, the spokeswoman for the Education Department. “Case processing procedures in the new CPM allow OCR to better accomplish this critical mission by improving OCR’s management of its docket, investigations, and case resolutions.”
A senior department official said that changes to the manual allowing complaints to be dismissed if they represent a pattern of similar complaints will allow the office the discretion to use technical assistance, rather than process thousands of the same type of concerns. The elimination of the administrative appeals process comes because appeals rarely resulted in a different outcome, but they still required substantial staff time that could be spent on resolving cases, the official said. The reduction from 20 to 14 days for additional information from complainants reflects staff feedback that most information is provided in 14 days, or not at all, in the department’s view.
Patrick T. Andriano, a lawyer with a law firm that represents about 80 school districts in Virginia, said the changes don’t represent big procedural adjustments from his perspective.
“I think it does give OCR more flexibility in how it’s going to conduct its investigations, and more flexibility into how it’s going to resolve complaints within school districts,” Andriano said. “It also appears to me that OCR is going to do more screening of the complaints up front, before they actually open a complaint.”
School districts will appreciate having an opportunity to explain that a case has been resolved or is already under investigation by another agency in order to head off an OCR investigation, Andriano said. Though investigators had the discretion to not open cases in the past if they were already pending before other agencies, in practice that rarely happened, he said.
Eliminating the administrative appeals process is a matter of fairness, he said; as written, only complainants could appeal an OCR decision. School districts did not have the ability to do so.
The effects of these changes is still to be determined, but Andriano said his clients have seen an uptick in the number of cases that have been resolved, some of which had been open for years.
“That is a good thing for the school district as well as the complainant,” Andriano said.
On Thursday, the House passed a spending bill that would appropriate $117 million to the office for civil rights, about $8.5 million over fiscal 2017 and $10 million more than the Trump administration had requested. In the budget bill, the House said the money was intended to increase its staffing so that it can “effectively and timely investigate complaints, execute and report on the civil rights data. collection; thoroughly monitor corrective actions of institutions and meet other critical workloads.” The House said that the office is also directed to maintain its 12 regional offices.
Lipsitt represents a unique situation because she had filed so many cases based on a single issue. But Paul Castillo, a senior attorney and students’ rights strategist for Lambda Legal, says that taken as a whole, the civil rights office has made several changes that will make it harder for parents to file cases, and will make it easier for the federal agency to dismiss them. Lambda Legal, based in Dallas, advocates for the civil rights of lesbian, gay, bisexual and transgender people and those with HIV.
Castillo, a field investigator for the office for civil rights between 2010 and 2013, said the department’s mission is “not to try to dismiss complaints that come into the office. And not to turn a blind eye to being a resource that people across the country turn to when they are experiencing discrimination and harassment,” Castillo said. “It is an across-the-board change that impacts new complaints, existing complaints, investigations that are already open, resolution agreements that have already been signed.”
The Education Department had already signaled that it was planning to make changes to how it handled complaints to its civil rights office. Education Secretary Betsy DeVos has said that the civil rights office will take a case-by-case approach to handling complaints, in order to prevent federal overreach and to resolve complaints faster.
In contrast, the Obama administration allowed investigators to examine if individual complaints were the result of systemic issues. That process, DeVos said, meant that “too many students have been forced to wait months, and in some cases years, for adjudication of their complaints.”
But the office for civil rights is not meant to be a complaint processing agency, but to ensure that taxpayer money is not going to entities that discriminate, said Seth Galanter, the senior director for the National Center for Youth Law in Washington. During the Obama administration, Galanter held several positions in the office for civil rights, including principal deputy assistant secretary.
In Lipsitt’s case, though she was filing many cases, they were found to be meritorious, Galanter said. “To exclude repeat filers who are bringing actual violations to your attention is basically ignoring the evidence that’s right in front of your face,” he said.
Most complainants are parents who have never filed similar complaints before, he said.
“The system was set up to prevent complaints from falling from the cracks,” he said. “This new system just creates cracks.”
Vol. 37, Issue 26, Page 18Published in Print: April 11, 2018, as Guidelines Spur Dismissal Of Special Education Complaints