1. Civil Rights Oversight, Enforcement, and Trending Focus Issues Jennifer Mauskapf, Esq. jmauskapf@bruman.com Brette Kaplan, Esq. bkaplan@bruman.com Brustein & Manasevit, PLLC Fall Forum 2012

2. Overview  Enforcement Agencies  OCR Trends  Current Areas of Focus  Students with Disabilities  Sexual Discrimination  Race, Color, or National Origin Discrimination  Implications of ESEA Waivers  Resources Brustein & Manasevit, PLLC 2

3. ENFORCEMENT AGENCIES US Dept. of Education, Office for Civil Rights (OCR) US Dept. of Justice, Civil Rights Division (DOJ CRD) Brustein & Manasevit, PLLC 3

4. Office for Civil Rights (OCR) Department of Education, Office for Civil Rights  Mission: “To ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.” Brustein & Manasevit, PLLC 4

5. OCR & Civil Rights Laws StatuteProhibits Discrimination Based On… Title VI of the Civil Rights Act of 1964Race, color and national origin Title IX of the Education Amendments Act of 1972 Sex Age Discrimination Act of 1975Age Section 504 of the Rehabilitation Act of 1973 Disability Title II of the Americans with Disabilities Act of 1990 Disability Brustein & Manasevit, PLLC 5

6. OCR Carries out mission through: Complaint Investigation and Resolution Proactive Enforcement: Compliance Reviews Monitoring of Resolution Agreements Technical Assistance Brustein & Manasevit, PLLC 6

7. OCR Organization Washington, DC Headquarters Two Enforcement Directors 12 Enforcement Offices Brustein & Manasevit, PLLC 7

8. US Department Of Justice (DOJ) Department of Justice, Civil Rights Division  Mission is to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society Brustein & Manasevit, PLLC 8

9. DOJ Civil Rights Division  Enforces a broader range of statutes including:  The Civil Rights Act of 1965  Title III of The Americans with Disabilities Act of 1990  Sections 504 and 508 of the Rehabilitation Act of 1973  May enforce IDEA and Title II of the ADA upon referral from other governmental agencies Brustein & Manasevit, PLLC 9

10. DOJ CIVIL RIGHTS DIVISION  Headquarters in Washington, D.C.  Division is made up of 11 sections including the Educational Opportunities and Disability Rights sections  Disability Rights Section Activities:  Enforcement  Certification  Negotiated Rulemaking  Coordination  Technical Assistance Brustein & Manasevit, PLLC 10

11. OCR TRENDS “The steady movement to a more fair and just society plays out every day in the classrooms, colleges and universities all across America – and I believe that the only way to achieve equity in society is to achieve equity in the classroom.” - Secretary Arne Duncan, July 14, 2010 Brustein & Manasevit, PLLC 11 Complaints & Resolutions Spotlight on Title IV, Title IX and Section 504/Title II of the ADA Compliance Reviews Bullying

12. OCR Complaints and Resolutions Brustein & Manasevit, PLLC 12 Source: US Dept. of ED/OCR FY2013 Budget Request

13. Complaint Caseload – FY2011 Brustein & Manasevit, PLLC 13 FY2011 complaints alleging disability discrimination were 47% of total complaints received Source: US Dept. of ED/OCR FY2013 Budget Request

14. Title IV Since FY2009-2010, OCR: Received approx. 5,500 Title IV complaints Began more than 55 investigations Brustein & Manasevit, PLLC 14

15. Brustein & Manasevit, PLLC 15 Source: Title VI Enforcement Highlights, US Dept. of Ed/OCR (July 2012)

16. Title IX Since FY2009-2010, OCR: Received approximately 3,000 Title IX complaints; Began more than 35 investigations regarding systemic discrimination Prevent retaliatory acts against those who report Title IX violations Brustein & Manasevit, PLLC 16

17. Brustein & Manasevit, PLLC 17 Source: Title IX Enforcement Highlights, US Dept. of Ed/OCR (June 2012)

18. Section 504/Title II of ADA In FYs 2009 – 2011, OCR: Received over 11,700 disability-related complaints Began more than 30 investigations More than half of all complaints OCR received between FY09 and FY11 were on disability issues Brustein & Manasevit, PLLC 18

19. Brustein & Manasevit, PLLC 19 Source: Disability Rights Enforcement Highlights, US Dept. of Ed/OCR (October 2012)

20. Resolution Timeframe Percentage of complaints resolved within 180 days Brustein & Manasevit, PLLC 20 *Data not provided for 2012 and 2013 Source: US Dept. of ED/OCR FY2013 Budget Request

21. Resolution Timeframe Percentage of complaints pending over 180 days Brustein & Manasevit, PLLC 21 *Data not provided for 2012 and 2013 Source: US Dept. of ED/OCR FY2013 Budget Request

22. FY2011 Compliance Reviews Conducted in priority areas: Equal access to rigorous courses and curricula Equal access to FAPE Racial disparities in school discipline Equal opportunity for ELLs Sexual harassment/violence Equal access to athletic opportunity Disproportionate numbers of minority students in special education Brustein & Manasevit, PLLC 22

23. Compliance Reviews Initiated and Resolved Brustein & Manasevit, PLLC 23 FY04FY05FY06FY07FY08FY09FY10FY11 Initiated5373923422937 Resolved296672263824274 Source: US Dept. of ED/OCR FY2013 Budget Request

24. Bullying Federal Partners in Bullying Prevention Summit (August 2010) ED & other Federal agencies Exposed information gap on anti-bullying laws and policies around US ED guidance -- Anti-Bullying Policies: Examples of Provisions of State Laws www2.ed.gov/policy/gen/guid/secletter/bullying.doc www2.ed.gov/policy/gen/guid/secletter/bullying.doc Brustein & Manasevit, PLLC 24

25. Bullying ED Dear Colleague Letter (DCL) and Fact Sheet, 10/26/10: http://www2.ed.gov/about/offices/list/ocr/letters/colleague- 201010.html http://www2.ed.gov/about/offices/list/ocr/letters/colleague- 201010.html Relationship between bullying and discriminatory harassment. Obligation to protect students from student-on-student harassment on the basis of sex; race, color and national origin; and disability. Brustein & Manasevit, PLLC 25

26. Bullying WH Conference on Bullying Prevention (March 2011) Report: ED Analysis of State Bullying Laws and Policies (Dec. 2011) Review of 46 states with anti-bullying laws and 41 states with anti-bullying policies as models for schools http://www2.ed.gov/rschstat/eval/bullying/state-bullying- laws/state-bullying-laws.pdf http://www2.ed.gov/rschstat/eval/bullying/state-bullying- laws/state-bullying-laws.pdf Brustein & Manasevit, PLLC 26

27. Bullying ED/HHS/DOJ site: www.stopbullying.govwww.stopbullying.gov Defines bullying and related topics Peer conflict, hazing, stalking, workplace bullying Cyber bullying Risk factors Prevention Responding Getting help Brustein & Manasevit, PLLC 27

28. CURRENT AREAS OF FOCUS Students with Disabilities Sexual Discrimination Race, Color, or National Origin Discrimination Brustein & Manasevit, PLLC 28

29. RECENT CIVIL RIGHTS ISSUES IMPACTING STUDENTS WITH DISABILITIES

30. Bullying  October 26, 2010 OCR Dear Colleague Letter  Bullying behavior may cross the line to become “disability harassment”  Strong Anti-Bullying Campaign  White House Conference on Bullying Prevention  Anti-bullying website (www.stopbullying.gov) includes a section on Special Considerations for Youth with Disabilities or Other Special Health Needswww.stopbullying.gov  Dec. 2011 – DOJ Office of Juvenile Justice and Delinquency Prevention (OJJDP) released Bullying in Schools: An Overview  Examining bullying in schools and support schools can provide bullying victims (http://www.ojjdp.gov/pubs/234205.pdf)http://www.ojjdp.gov/pubs/234205.pdf  OJJDP 2012 webinars & online modules on bullying: http://www.ojjdp.gov/enews/juvjust.html http://www.ojjdp.gov/enews/juvjust.html Brustein & Manasevit, PLLC 30

31. Limiting Enrollment Based on Disability  Private schools initially refusing to accept students with autism or other special conditions or needs  Compliance Agreements ▪ Montessori Academy in Baldwin Park, CA ▪ Beach Babies Learning Center in Old Saybrook, CT  Consent Decree: US v. Nobel Learning Communities  Complaints ▪ SC child care and after-school center ▪ California swim school  NOTE: Charter Schools Brustein & Manasevit, PLLC 31

32. Limiting Enrollment Based on Disability—Postsecondary Application Process Inaccessible Atlanta’s John Marshall Law School Law School Admission Council Examination Accommodations National Board of Medical Examiners NJ Complaint Law School Admission Test – UPDATE! Brustein & Manasevit, PLLC 32

33. Examination Accommodations Dept. of Fair Employment & Housing v. Law School Admission Council – 10/18/12 DOJ intervened to expand case from CA statewide class action to nationwide lawsuit LSAC charged with widespread and systemic deficiencies with how it processes and denies requests for testing accommodations by disabled individuals taking the LSAT DOJ alleges LSAC has discriminatory policies; routine denial of extended time & other accommodations; “flags” test scores identifying test taker as person with accommodation/disability to law schools during admissions process (prohibited by ADA) Brustein & Manasevit, PLLC 33

34. Accessible/Emerging Technology OCR Guidance June 29, 2010 Dear Colleague Letter stating that colleges and universities cannot use inaccessible technology where no reasonable accommodation or modification exists or is unavailable May 26, 2011 FAQ discussing the application of the equal access requirements of the ADA and Section 504 to the use of emerging technology University of Virginia Darden School of Business Use of Kindles denied students equal access to the University’s programs, activities and effective communication in violation of Section 504 and Title II of the ADA Similar agreements with other postsecondary schools Brustein & Manasevit, PLLC 34

35. Physical Access Transportation Ensuring equal access to transportation services for students with disabilities Chicago Pubic Schools compliance review Alabama State Department of Education Physical accessibility of facilities Adoption of the 2010 ADA Standards for Accessible Design, effective May 2011, mandatory May 2012 OCR Compliance Reviews: Montana Tech of the University of Montana University of Montana, Helena Brustein & Manasevit, PLLC 35

36. Hidden disabilities Physical or mental impairments not “readily apparent to others” Students with hidden disabilities are afforded the same protection under Section 504 and the ADA as other students Brustein & Manasevit, PLLC 36

37. Hidden Disabilities  Gloucester County VA Public Schools  School found student with serious peanut allergy not to have a qualified disability and therefore not eligible for 504 protection  OCR intervened in decision due to “exceptional circumstances”  Mystic Valley Regional Charter School  State Hearing Officer decision required school to ban all peanut products from child’s classroom due to life threatening allergy  School failed to make undue hardship/burden argument Brustein & Manasevit, PLLC 37

38. Service Animals Definition of service animal was changed effective March 15, 2011; now limited to dogs An animal that meets the definition of “service animal” can be a reasonable accommodation Brustein & Manasevit, PLLC 38

39. Service Animals HUD v. University of Nebraska at Kearny - Fair Housing Act lawsuit regarding dog in university-owned apartment to support student with depression and anxiety Bakersfield City School District - OCR found that a school district violated the ADA and Section 504 by excluding dog without proper procedures for review Brustein & Manasevit, PLLC 39

40. CIVIL RIGHTS ISSUES: SEXUAL DISCRIMINATION

41. Title IX Prohibiting discrimination on the basis of sex in all education programs and activities by recipients of federal funds Applies to public & private schools receiving federal financial assistance: Elementary schools Secondary schools Colleges Universities Brustein & Manasevit, PLLC 41

42. Title IX Prohibits all forms of sex discrimination: Gender-based harassment Sexual harassment Sexual violence Equity in athletics Protection extends to all aspects of institutions’ education programs and activities Brustein & Manasevit, PLLC 42

43. Comparable Educational Opportunities College and career prep programs Ex. 1: Underrepresentation of girls in advanced math and science courses Resolution: Policies and procedures to ensure fair & equitable access to AP STEM courses for female students Better prep for K-8 female students to ensure success in STEM courses Brustein & Manasevit, PLLC 43

44. Comparable Educational Opportunities College and career prep programs Ex. 2: Only 1 female student in college’s aviation maintenance technology program. Experienced insults and harassment & forced to drop out of program. Resolution Agreement: College reimbursed educational costs End hostile culture by issuing anti-discrimination statement, revising nondiscrimination and anti-harassment policies and procedures Train staff Brustein & Manasevit, PLLC 44

45. Comparable Educational Opportunities College and career prep programs ▪ Ex. 3: OCR current investigation – Examining the disparity between male and female participation, graduation rates, and degree attainment in male dominated programs (e.g., engineering) Brustein & Manasevit, PLLC 45

46. Athletics – Resolution Agreements FY2009-FY2011: OCR initiated 17 Title IX investigations OCR received more than 900 Title IX complaints Provide female athletes with additional opportunities to participate in sports & receive financial aid Comparable quality coaching, facilities, equipment and other athletics- related benefits Brustein & Manasevit, PLLC 46

47. Athletics - OCR Investigations Ex. 1: Athletic booster club fundraising mostly for male teams = inequities in benefits Ex. 2: Equitably treat male and female students in “primetime” scheduling of: Athletic events Practice times Event publicity Brustein & Manasevit, PLLC 47

48. Athletics Ex: University provided fewer and inferior resources to women’s sports teams Inadequate equipment and locker room for female athletes; inferior medical and training services; crowded hotel rooms or same-day travel for “away games” Resolution agreement: Upgraded practice and competitive facilities; new locker rooms; appropriately sized equipment; other equitable treatment Brustein & Manasevit, PLLC 48

49. Equal Treatment – K-12 Ex. 1: Suspension or harsher treatment of male but not female students for wearing earrings Brustein & Manasevit, PLLC 49

50. CIVIL RIGHTS ISSUES: RACE, COLOR, OR NATIONAL ORIGIN DISCRIMINATION

51. Equal Treatment - Postsecondary Ex. 1: Different treatment in admissions, registration, and granting fellowships and internships Ex. 2: Students were suspended, placed on academic probation, forced to withdraw or dismissed Ex. 3: Male students held to higher standard than female students during physical fitness portion of law enforcement training classes Brustein & Manasevit, PLLC 51

52. Title VI Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color or national origin FY2009-2011: 5,500 complaints received; 1,158 complaints on racial harassment Brustein & Manasevit, PLLC 52

53. Case Study: English Language Learners - AZ 8/3/10 Letter Limits how to determine whether a student should be assessed for ELL status Sharp decline in number of students assessed and identified; LEAs reported many more students would have been assessed Finding: AZ process fails to identify many ELL students and creates unnecessary delays in identifying other ELL students SETTLEMENT REACHED, 3/25/11 Brustein & Manasevit, PLLC 53

54. ELLs - AZ 8/27/10 Letter AZ practice for exiting students from receiving EL services Finding: Fails to ensure a valid measure of whether ELL students are proficient in each language domain before they are exited from EL services  Prevents certain reclassified students from participating meaningfully in the mainstream classroom OCR proposed resolution agreements to AZ… Brustein & Manasevit, PLLC 54

55. ELLs AZ Settlement 8/31/12 Settlement reached between Arizona Department of Education, The Department of Justice, Civil Rights Division, and the Department of Education, Office for Civil Rights Resolution: AZ will offer services to thousands of ELL students who were misidentified or exited from the program AZ required to develop proficiency criteria to identify ELL students Brustein & Manasevit, PLLC 55

56. National Origin Ex. 1: “Kick a Jew Day” in high school Publicized on Facebook/social media Kicked Jewish students Made anti-Semitic remarks and gestures, including Nazi salutes Resolution: Bullying -- Harassment based on national origin Brustein & Manasevit, PLLC 56

57. Discriminatory Discipline Oakland Compliance Review Oakland Unified School District Student population - 32% African American Suspended students - 63% African American 20% of African American males students suspended at least once a year (6x the rate of white students) Resolution: Try not to remove misbehaving student from school Collaborate with experts on research-based strategies to develop positive school climates that prevent school discipline discrimination Identify at-risk students and provide them with support services to decrease behavioral difficulties Provide academic services for students who are removed from school for disciplinary reasons Brustein & Manasevit, PLLC 57

58. Discriminatory Discipline Mississippi DOJ alleging Mississippi entities violated due process rights of juveniles School-to-Prison pipeline Kids imprisoned for minor offenses, including school disciplinary infractions Kids punished disproportionately without due process rights Most affected students are disabled and African American Brustein & Manasevit, PLLC 58

59. ESEA WAIVERS AND POTENTIAL CIVIL RIGHTS IMPLICATIONS

60. Background on ESEA Waivers  September 2011: Flexibility package announced  States could apply for waiver to opt out of burdensome ESEA requirements  October 2012: 35 States including D.C. have received waivers; 10 States have outstanding applications; 2 States have applied for different waiver packages Brustein & Manasevit, PLLC 60

61. ESEA Waivers and Potential Civil Rights Issues Controversy in Virginia and Florida on differentiated achievement goals based on race and “super subgroups” Ex: Florida has set proficiency goals of 88% for white students, but only 74% for African-American students. ED guidance on SEA collection of subgroups: “In order to ensure that [State educational agencies] … are continuing to meet the intent and purpose of Title I of ESEA … ED will continue to collect all data related to student proficiency rates as well as performance against the annual measurable objectives.” Brustein & Manasevit, PLLC 61

62. Resources  United States Department of Education Office of Civil Rights http://www2.ed.gov/about/offices/list/ocr/index.html  United States Department of Justice Civil Rights Division http://www.justice.gov/crt  Office for Special Education Programs http://www2.ed.gov/about/offices/list/osers/osep/index.html  Department of Education Anti-Bullying Website http://www.stopbullying.gov/at-risk/groups/special-needs/index.html Brustein & Manasevit, PLLC 62

63. Resources Title IX Enforcement Highlights http://www2.ed.gov/documents/press-releases/title- ix-enforcement.pdf http://www2.ed.gov/documents/press-releases/title- ix-enforcement.pdf Title VI Enforcement Highlights http://www2.ed.gov/documents/press-releases/title- vi-enforcement.pdf http://www2.ed.gov/documents/press-releases/title- vi-enforcement.pdf Disability Rights Enforcement Highlights http://www2.ed.gov/documents/news/section- 504.pdf http://www2.ed.gov/documents/news/section- 504.pdf OCR FY2013 Budget Request http://www2.ed.gov/about/overview/budget/budget 13/justifications/bb-ocr.pdf http://www2.ed.gov/about/overview/budget/budget 13/justifications/bb-ocr.pdf Brustein & Manasevit, PLLC 63

64. Questions?

65. DISCLAIMER This presentation is intended solely to provide general information and does not constitute legal advice. Attendance at the presentation or later review of these printed materials does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances. Brustein & Manasevit, PLLC 65