Presentation on theme: "U.S. Department of Education Office for Civil Rights"— Presentation transcript:
1 U.S. Department of Education Office for Civil Rights (OCR)
2 OCR Presents: What To Do When OCR Comes Knocking: OCR’s Case Resolution Tools Purpose of presentation: To inform recipients what to expect when notified of an OCR complaint or compliance review, including their options
3 What Is OCR?The Office for Civil Rights (OCR) is a part of the U.S. Department of Education and has headquarters in Washington, D.C. and has 12 regional officesOCR’s mission is to ensure equal access to education programs and promote educational excellence through the vigorous enforcement of civil rights laws
4 Laws Enforced by OCR Title VI (race, national origin and color) Title IX (sex)Section 504 of the Rehabilitation Act (disability)Title II of the Americans with Disabilities Act (ADA)Age Discrimination ActBoy Scouts of America Equal Access Act
5 OCR’s JurisdictionOCR has jurisdiction over programs and activities that receive financial assistance from the Department of Education, such as:state education agencieselementary and secondary school systemscolleges and universitiesstate vocational rehabilitation agenciesOCR also has jurisdiction over certain public entities under Title II of the Americans with Disabilities Act of 1990, such as:public elementary and secondary school systemspublic colleges and universitiespublic libraries and state vocational rehabilitation agenciesTitle II prohibits disability discrimination by public entities whether or not they receive financial assistance.
6 OCR Enforcement OCR Enforcement An important responsibility of OCR is the investigation and resolution of complaints of discrimination.OCR also initiates some cases on its own. These are called compliance reviews, and they permit OCR to target resources on compliance problems that appear particularly acute.
7 OCR EnforcementOCR also provides technical assistance to help institutions achieve voluntary compliance with the civil rights laws that OCR enforces and to help parents and students understand their rights and responsibilities. Technical assistance includes, for example:PresentationsResponses to telephone and written inquiriesWorkshopsConsultation
8 Complaint ResolutionOCR's goal is to resolve complaints of discrimination promptly and appropriately. OCR may use a variety of approaches to resolve the complaint.8
9 Investigation of Complaints of Discrimination: FAQs Which Complaints will be Investigated by OCR?How Does the Recipient Know it is the Subject of an Investigation?An Investigation: What Can the Recipient Expect? What are the Recipient’s Options?
10 Which Complaints will be Investigated by OCR? OCR Case Processing Manual (2008):OCR will investigate all allegations, which, if true, would constitute a violation of one of the laws it enforces.In 2008, OCR changed its case processing procedures with its new Case Processing Manual. Previously, OCR would not open a case for investigation if the complainant could not provide a “sufficient factual basis” to suggest that discrimination occurred. Under the new Manual, OCR will proceed with the complaint investigation, provided that the allegation is timely and within OCR’s jurisdiction.This change has resulted in the investigation of more cases. Recipients may have already noticed an increase in the number of complaints OCR is investigating. Questions may arise as to whether it is necessary for OCR to “make a federal case” out of some of these allegations. Short answer: “Yes, it is.” OCR changed its procedures to make them consistent with notice pleading standards set forth in the Federal Rules of Civil Procedure, and approved by the U.S. Supreme Court.In addition, the CPM was revised with the goal of ensuring due process/fairness for both parties and of providing greater flexibility in resolution. Under the previous procedures, many cases were administratively closed for insufficient factual basis and the recipient may not have been aware that a complaint had been filed against it. Due process considerations require that recipients be given notice and an opportunity to respond to complaints.Similarly, notions of fundamental fairness counsel against requiring the complainant to provide information to which he/she may not have access– imposing too high a burden on complainants. As an example, in the past, if an African American complainant filed an allegation that she was expelled from her University based on race, OCR may have required the complainant to provide some information suggesting that a non-African American student who engaged in similar behavior was treated more favorably, and/or some information suggesting that the University did not treat the complainant in accordance with its policies and procedures. Under the new procedures , OCR will open the complaint for investigation.
11 Notification LetterOCR will send a notification letter to the recipient and to the complainant. The letter will state the following:(a) the basis for the complaint;(b) a brief statement of the allegations over which OCR has jurisdiction;(c) a brief statement of OCR’s jurisdiction over the complaint; and(d) an indication of when the parties will be contacted.
12 Notification Letter -- “Opening the allegations for investigation in no way implies that OCR has made a determination with regard to their merits. During the investigation, OCR is a neutral fact-finder, collecting and analyzing relevant evidence from the complainant, the recipient, and other sources, as appropriate. OCR will ensure that its investigation is legally sufficient and is dispositive of the allegations, in accordance with the provisions of Article III of the Case Processing Manual.”--
13 Resolution Tools Investigations and Investigative Determinations Early Complaint Resolution (ECR)Resolution Requested by Recipient Prior to the Conclusion of an Investigation
14 Investigations and Investigative Determinations Resolution Tools:Investigations and Investigative Determinations
15 OCR InvestigationOCR proceeds with investigation and makes compliance determinationViolation, with AgreementNo Violation
16 What to Expect in an OCR Investigation Data RequestsInterviews, where appropriatePossible On-site Visit, where appropriate“
17 Investigative Determinations At the conclusion of the investigation,OCR will determine either:the evidence is insufficient to support the complaint allegations; orthe evidence is sufficient to support a determination of noncompliance. OCR will then attempt to negotiate a voluntary resolution agreement with the recipient. If an agreement is not reached, OCR will proceed to enforcement, either through an administrative proceeding or through referral to the Department of Justice for judicial proceedings.OCR will issue a letter to both parties describing the allegations, the information obtained during investigation, the applicable statutory and regulatory provisions, and OCR’s conclusion.Complainants have a right to appeal an OCR determination that insufficient evidence exists to support a complaint allegation.Even if OCR concludes that insufficient evidence exists to support the complaint allegation, the Complainant may have a private right of action in court. In Age Act cases and Title II cases, OCR specifically informs complainants of their right to file suit.
18 Early Complaint Resolution (ECR) Resolution Tools:Early Complaint Resolution (ECR)
19 Early Complaint Resolution (ECR) What Is It? ECR is a form of Alternative Dispute Resolution (ADR) that is offered by OCR where appropriate as an alternative to the traditional investigative processECR provides the parties an early opportunity to voluntarily resolve the issues that prompted the OCR complaint without investigationWhile referred to as Early Complaint Resolution, ECR can occur at any point during the investigation. Also, if ECR is not successful at one time during the life of a complaint, nothing prohibits the parties from requesting ECR at a later point.
20 ECR Process OCR determines that ECR is appropriate Complainant and Recipient express willingness to engage in ECROCR facilitator is designatedFacilitator contacts parties and may arrange for a joint conference between partiesOnce parties agree on resolution, facilitator assists parties in drafting agreement
21 OCR’s Role To serve as facilitator. To review the allegations and make sure the parties understand the issues, and, as appropriate, facilitate an understanding of pertinent legal standards and possible remediesTo establish a constructive tone and encourage the parties to work in good faith toward a mutually acceptable resolutionTo facilitate a discussion between the parties regarding possible actions that the parties may consider in working toward a resolutionTo maintain an impartial approach and inform the parties that OCR will not insist on particular terms or any specific resolutionTo assist the parties in drafting any resolution agreement.
22 Role of the Participants Individuals participating in the ECR sessions should have full decision-making authorityParties are to participate in the discussions in good faithParticipants are to consider offers or suggestions with an open mind and to work constructively toward a mutually acceptable resolution; andImplement any agreement in good faith
23 If ECR is Successful . . .OCR will notify the parties that the allegation has been resolvedOCR will close the allegationOCR does not monitor the agreementIf a breach occurs, the complainant may re-file the complaint
24 Benefits of ECR Educational Early and Efficient Economical Equitable Educational – ECR agreements allow parties to get back to the business of education, without the anxiety of an unresolved civil rights complaint. ECR fosters a problem-solving approach to complaints. Many complaints received by OCR are the result of broken relationships between the complainants and recipients. ECR improves communication. ECR provides a neutral and confidential setting in which the parties can openly discuss their views on the underlying dispute and its solution. Enhanced communication can lead to mutually satisfactory resolutions and let the parties move on from the dispute.Early and Efficient – The ECR process is quick, usually completed in 20 to 30 days. This is especially important at the start of a new school year or semester. FAPE and accommodations cases can be resolved to make a difference to the student in timely manner (e.g., personal FM system provided within a week so that the student can take midterms)Economical –ECR saves time and money. First and foremost, mediation is free. It does not cost anything to participate in ECR. All that is required is good faith on the part of both parties and a willingness to see the big picture. Moreover, ECR generally occurs early in the process, prior to spending substantial time, resources and money responding to an OCR investigation. Many mediations can be completed in one meeting. Legal or other representation is optional but not required. Recipients can avoid enforcement actions (if a violation is found) and oversight by a government agency for a potentially lengthy duration.Equitable – The ECR process is the only point in the OCR complaint process that allows both parties to control the outcome. It’s a win-win situation. In addition, ECR can resolve all issues important to both parties, not just the underlying legal dispute.
25 If ECR fails . . . OCR resumes its investigation Complaint returned to investigative teamAny notes taken by the facilitator and/or any records or other documents offered by either party to the facilitator during ECR will be kept in a separate file and will not be shared with the staff member assigned to investigate the complaint.
26 Successful ECRs: Disability (Section 504 and Title II) Allegation concerns failure to implement student’s IEP; agreement results in school district’s agreement to implement IEP and/or clarification of IEP requirementsAllegation concerns failure to provide academic adjustments and auxiliary aids; agreement results in University’s agreement to provide these or to meet with student to evaluate request for academic adjustments/auxiliary aids
27 Successful ECRs: Sex Discrimination (Title IX) Complaint filed by female athletes alleging that college failed to effectively accommodate their athletic interests and abilities; agreement results in reinstatement of swimming teamComplaint alleged that the school district failed to designate a Title IX coordinator; in ECR, district agrees to designate employee to be its Title IX coordinator and to revise and publish its notice of nondiscrimination, including contact information for coordinator
28 Successful ECRs: Racial Discrimination (Title VI) Complaint alleges that student was subjected to racial harassment by other students; ECR agreement provides that school district will promptly investigate allegations of harassment and take appropriate responsive action, including possible discipline of the students involvedAllegation of different treatment in benefits provided by school district (e.g., access to Advanced Placement courses; afterschool programs); school district agrees to take steps to ensure that benefits are available to all students
29 Resolution Tools:Resolution Requested by Recipient Prior to the Conclusion of the Investigation
30 Resolution Requested by Recipient Before the conclusion of an investigation, a recipient may request to resolve a complaint.Recipient does not need to make any admission of liability.OCR determines appropriate resolution: Agreement will be aligned with the complaint allegations or the information obtained during the investigation to that point, and consistent with applicable regulations.Complainant approval is not required.Complainant will be informed of the recipient’s request and will be kept apprised of the resolution process.
31 Benefits of Agreements Reached Prior to Conclusion of Investigation EducationalEfficientCost EffectiveBenefits of this resolution option are very similar to benefits of ECR outlined above. One important difference is that here recipient works directly with OCR to achieve resolution and the complainant does not have any veto rights over the agreement reached. This resolution option gives the recipient the opportunity to resolve any compliance issues without OCR making a violation finding.
32 Resolution Agreements Reached Prior to Conclusion of Investigation Appropriate for many types of discrimination complaints; e.g.:School district agrees to evaluate student with a disabilityUniversity agrees to provide auxiliary aids to student with a disabilitySchool district agrees to ensure no different treatment on basis of race or sex in particular programs or servicesAgreements work particularly well in areas where recipient may need help with procedures:Harassment policies and proceduresGrievance policies and proceduresProcedures for communicating with limited English proficient parents
34 How To Reach Us Website: www.ed.gov/ocr Chicago Office: U.S. Department of EducationOffice for Civil RightsChicago Office500 W. Madison, Suite 1475Chicago, Illinois 60661Telephone: (312)FAX: (312)The website provides access to the regional office that has jurisdiction over the recipient in question.