The U.S. Department of Education can’t just dismiss civil rights complaints from those who repeatedly file similar actions, says a lawsuit filed against the department from three advocacy organizations.
The Council for Parent Advocates and Attorneys, the NAACP, and the National Federation of the Blind filed the legal action in federal district court last week, arguing that the department’s new approach to handling serial complaints strikes at the heart of the mission of the office for civil rights.
That office enforces laws such as 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 gender discrimination in education, and other laws that ban discrimination based on age, race, color, or national origin.
“What they’ve done is basically stripped complainants of their rights,” said Denise Marshall, the executive director of the advocates and attorneys council. “They’re dismissing cases, whether or not they have merit.”
Earlier this year, the Education Department made changes to the case-processing manual used by its civil rights office. The changes meant that the office reserved the right to dismiss complaints if they represented a “continuation of a pattern of complaints previously filed with OCR by an individual or a group against multiple recipients.” The civil rights office also said that it would dismiss single complaints “filed for the first time against multiple recipients that, viewed as a whole, [place] an unreasonable burden on OCR’s resources.” In such cases, the civil-rights office said it may conduct a compliance review or provide technical assistance.
Those weren’t the only changes made to the case-processing manual. Also eliminated was an appeals process that had been available to complaint filers, and the lawsuit takes aim at that new policy, too. Such a change would have to be open for public comment, said Eve Hill, a lawyer representing all three organizations. Hill was a former deputy assistant attorney general at the U.S. Department of Justice, civil rights division, during the Obama administration.
“To the extent there’s a rationale for that, they haven’t stated one,” she said. “It’s a substantive change to the rights of complainants.”
After the department changed how it processes cases, it started dismissing hundreds of complaints filed by Marcie Lipsitt, a disability advocate in Michigan. Lipsitt’s complaints focused on website accessibility. She said that websites of various educational entities were inaccessible for those who are blind or visually impaired or who cannot use a mouse to navigate a web page. Lipsitt has filed more than 2,000 complaints in the past two years.
In addition to having her complaints tossed out, Lipsitt also said she’s getting notices that entities that had already settled their accessibility cases as far back as two years ago were now being given “modified resolution agreements.” The new agreements no longer have language that requires entities to meet certain technical accessibility standards, train staff annually on accessibility issues, or report on their progress based on a certain timeline.
Lipsitt was gratified to hear of the lawsuit.
“My position hasn’t changed from day one. You don’t have be an attorney to know these revisions are unlawful. They go against the [OCR’s] mission statement,” Lipsitt said. “These provisions strip every American of their civil rights and their ability to file civil rights complaints. And the beauty of civil rights complaints has been that everyone has been able to file one.”
Liz Hill, a spokeswoman for the Education Department, said the agency could not comment on pending litigation. However, she said the changes to the case-processing manual were made in consultation with staff investigators and managers. Dismissing complaints if they’re part of a pattern “is intended to permit [the civil rights office] to remain active in every type of discrimination subject matter while retaining discretion to engage in technical assistance efforts where appropriate,” she said. The office still accepts all complaints, including those from advocacy organizations, she said.
The Trump administration’s proposed budget included a cut to the office for civil rights. But Congress rejected that request in its March budget agreement. The $117 million that Congress appropriated for OCR was $10 million more than requested and $8.5 million more than it had been appropriated in fiscal 2017. In the budget agreement, Congress said the money was intended to increase staffing so that the office could effectively investigate complaints.
A version of this article appeared in the June 06, 2018 edition of Education Week as Ed. Dept. Sued Over New Approach to Civil Rights Complaints