By Alyson Klein and Christina A. Samuels
U.S. Secretary of Education Betsy DeVos’ office for civil rights is reversing itself on several key changes to how it investigates civil rights claims that had infuriated the civil rights community.
Specifically, the department, announced Nov. 20, is revising OCR’s case-processing manual—the document that guides how cases are handled—to get rid of language that called for investigators to dismiss multiple complaints originating with same source. What’s more, OCR will conduct investigations of complaints that were previously dismissed under the rule change.
The language on so-called “mass filers,” which had prompted outcry and a lawsuit, hasn’t been on the books long. It was part of a March revision to the civil rights manual. But after that change, the Education Department began nixing hundreds of complaints from Marcie Lipsitt, a special education advocate in Franklin, Mich. Over the past two years, Lipsitt has filed more than 2,400 complaints to the department over educational entities that have websites that aren’t accessible for the blind or visually impaired, or those who cannot use a mouse to navigate a website.
In response to the March changes in how cases were processed, the Council for Parent Advocates and Attorneys, the NAACP, and the National Federation of the Blind filed the legal action in federal district court May 31, saying that the department can’t simply ignore and fail to investigate civil-rights complaints from those who repeatedly file such complaints.
The office for civil rights is responsible for enforcing 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.
That’s not to say that the department is addressing all of the civil rights’ community’s concerns with most recent changes to the manual.
The revised manual continues to direct investigators not to consider each complaint for evidence of systemic discrimination, reversing an Obama administration’s practice. Under the Trump administration’s approach, investigators instead look for evidence of broader discrimination “only where it is appropriate to do so in light of the allegations or based on facts ascertained in the investigation.”
And the department is keeping in place a “rapid resolution process” and “facilitated resolution process” designed to help complainants and school districts or colleges resolve their issues quickly, with an assist from OCR. It is also continuing an expanded time frame for negotiating agreements with school districts and colleges who have been the subject of complaints.
“Our top priority in the Office for Civil Rights is ensuring all students have equal access to education free from discrimination,” said Assistant Secretary for Civil Rights Kenneth L. Marcus. “Since joining the OCR team in June, I’ve reviewed our case processing manual and received important and constructive feedback on it. While we continue to work to improve the timeliness of OCR’s case processing, we have determined that additional revisions will help improve our work and allow us to be more responsive to students, stakeholders and our staff.”
Marcus, who also served in the department under President George W. Bush, was confirmed to his post by the U.S. Senate in June, several months after some of the revisions that angered civil rights groups were put in place. Before that, Candice Jackson, a lawyer who drew criticism for her comments that most college rapes were the result of drinking and breakups, was at the helm of the office on an acting basis.
Eve Hill, an attorney representing the three civil rights organizations that had filed the lawsuit against the department, said the department had dismissed nearly 700 complaints filed by five people because of the rules adopted in the March revision of the case-processing manual. Those cases need to be reopened, she said.
“Simply saying we won’t dismiss any cases any more is insufficient,” said Hill, who served as a deputy assistant attorney general during the Obama administration.
Also of concern, Hill said, is that the office for civil rights has shown that it is willing to change, at will, how it processes complaints.
“They have to reach an agreement with us to stop doing this bad behavior, or they need a court order or a consent decree to say they will,” she said.
And Catherine Lhamon, who served as the assistant secretary for civil rights during the Obama administration, sees the decision as a direct response to the lawsuit.
“I think this is certainly a litigation protective move from the department,” said Lhamon, who is now the chair of the U.S. Commission on Civil Rights. “They were getting sued. Their position was not defensible and so they are covering a very poor set of choices with a rushed new amendment.”
And she said, the department’s changes don’t go nearly far enough in restoring students’ civil rights protections.
“There’s quite a bit more that should get corrected” in the manual, Lhamon said. “It would be nice for the department to be focused on a comprehensive review of the way that the law should be enforced and what privileging equity looks like for the office for civil rights. And I don’t see that, in even this revision.”
U.S. Secretary of Education Betsy DeVos listens to a question during a student town hall at National Constitution Center in Philadelphia on Sept. 17.
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