Within the U.S. Department of Education is the Office of Civil Rights (OCR), one of several federal agencies charged with enforcing federal anti-discrimination laws and regulations. Many school districts have experienced the anxiety of being the subject of an OCR investigation, and all must heed OCR’s regulatory authority or risk the consequences, which includes the possibility of losing federal funding.
OCR was highly active during the Obama administration, both in responding to citizens’ complaints about school districts and issuing guidance documents that affected school policies. But the Trump administration has sent signals that it intends to be less aggressive in investigating complaints and more conservative when interpreting what behaviors and policies are required by federal laws.
This article will discuss the agency’s purpose, its recent history and the outlook for schools during the remainder of the Trump administration.
What does OCR do?
The Office for Civil Rights states that its mission is “to ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.” It seeks to fulfill this mission by enforcing federal civil rights laws prohibiting discrimination in programs or activities that receive federal financial assistance from the Department of Education, including public and charter schools. OCR’s primary means of enforcement is through the investigation of complaints. It is authorized to investigate alleged violations of numerous anti-discrimination laws.
For school districts, the most significant of these laws are: Title VI of the Civil Rights Act of 1964 (prohibiting discrimination on the basis of race, color, national origin); Title IX of the Civil Rights Act of 1964 (prohibiting discrimination based on sex); and Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (both prohibiting discrimination based on disability or perceived disability).
It is easy for anyone to file a complaint against a school; the OCR complaint form is available online (www. ed.gov/about/offices/list/ocr/complaintform.pdf), and there are no fees for fi ling a complaint.
If an OCR enforcement officer determines that a complaint against a school sufficiently alleges violation of any of the laws under OCR’s purview, an investigation may ensue. This typically begins with an official letter to the superintendent that usually includes a request (actually a demand) for data by a specific deadline. Providing the required information and documentation can be onerous for school districts.
Typically, a superintendent will turn to legal counsel to prepare a reply. The district might provide information about the specific complaint and request it be dismissed because of lack of merit or on procedural grounds.
Although it is rarely wielded, the ultimate weapon in OCR’s arsenal is the ability to impose financial punishment on a non-compliant recipient though the withholding of federal funding. That can amount to a significant portion of any district’s budget.
More frequently, however, OCR will take an intermediary step by unilaterally declaring a school district to be “non-compliant” or deficient in its handling of a matter under OCR’s purview. The implication is that if the district does not respond to OCR’s satisfaction, the agency will invoke its power to restrict federal funding. However, this is viewed as a remedy of last resort that all stakeholders prefer to avoid.
Another major area of OCR activity involves issuing “Dear Colleague” letters and other forms of policy guidance. These documents put the nation’s educational community on notice regarding how the administration thinks schools must act to be compliant with federal anti-discrimination laws. For instance, OCR issued a Dear Colleague letter on Dec. 28, 2016 (just before President Obama left office) stating that physical restraint or seclusion of special education students may be discriminatory.
Accusations of overreach
Under President Obama, the OCR’s stance was one of aggressive enforcement. OCR’s caseload doubled under Obama to 10,000 investigations per year. While investigations prior to Obama typically were resolved after about 300 days, matters now take more than three years to process.
Under Obama, OCR issued 36 “Dear Colleague” letters. OCR then characterized its rigorous standards as “aspirational.”
In a July 11, 2017 letter to Senator Patty Murray (DWash.), Education Secretary Betsy DeVos wrote, “The previous administration too often issued new regulations via administrative fiats using Dear Colleague letters.” Similarly, legal scholars and others had criticized Obama-era Dear Colleague letters as establishing requirements unsupported by any legislative mandate and beyond the judiciary’s interpretation of the law.
For instance, a controversial OCR guidance said it would be a violation of Title IX to deny transgender students access to the bathroom that corresponds to their gender identity. In its only OCR Dear Colleague to date, the Trump administration withdrew the Obama-era document and said it does not interpret Title IX as protecting students who identify as a gender that is not the one on their birth certificates. (A New York State guidance in place since 2015 directs schools to give transgender students access to bathrooms consistent with their gender identities, however.)
Outlook under the Trump administration
Under President Trump’s proposed budget, OCR would lose more than 40 employees. “To address steady increases in the number of complaints received and decreased staffing levels, OCR must make difficult choices,” according to budget documents. “OCR’s enforcement staff will be limited in conducting onsite investigations and monitoring, and OCR’s ability to achieve greater coordination and communication regarding core activities will be greatly diminished.”
One publicized change in federal oversight involves how the agency will respond to complaints related to transgender students – although official statements are hard to parse. On June 6, 2017, acting Assistant Secretary for Civil Rights Candice Jackson sent OCR Regional Directors a letter entitled OCR Instructions to the Field re Complaints Involving Transgender Students. The document stated that OCR may assert jurisdiction on the basis of Title IX and should investigate any student’s complaint of sex discrimination, including allegations of hostile environments or retaliation, regardless of whether or not the complainant is transgender, as long as the usual jurisdictional requirements for an investigation have been met.
Two days later, Jackson issued an internal memorandum to OCR staffers, eliminating previous directives to investigators that prioritized certain categories of sensitive cases and ensured broad investigations of systemic discrimination. “Heightened scrutiny” is now permitted only if a complaint expressly alleges such concerns or if staffers urge a deep probe.
Many school attorneys view these changes with mixed emotions. On the one hand, an era of heavy-handed enforcement appears to have ended, and school administrators won’t tremble every time they get mail with a return address of Washington, D.C. But transgender students are widely recognized as a vulnerable population, and they appear to have lost a strong ally in the nation’s capital.
What school boards should anticipate
A trend towards deregulation and less enforcement by OCR seems implicit in actions of the Trump administration to date. Nevertheless, school officials should still heed all existing OCR policies and guidance.
During the next few years, federal and state authorities may give conflicting guidance regarding what the law requires of school districts. That has already occurred with regard to the issue of which bathroom transgender students should use.
On Feb. 22, the Trump administration wrote a Dear Colleague letter that simply withdrew an Obama-era Dear Colleague letter that dealt with the rights of transgender students. The next day, New York State Attorney General Eric Schneiderman issued a news release in which he noted he has the authority to interpret and enforce Title IX within New York State, promising that “my office will use all the existing tools of federal, state and local law to ensure that transgender kids are safe in their schools and are provided equal access to all programming and facilities consistent with their gender identity.”
Gov. Andrew Cuomo and Education Commissioner MaryEllen Elia have also reiterated the state’s commitment to civil rights for transgender students, consistent with state laws such as the Dignity for All Students Act.
While there is uncertainty regarding how OCR and other federal agencies with authority over school districts will change under the Trump administration, there is little doubt that school administrators and board members must remain alert.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Beth L. Sims and Elizabeth Ledkovsky of Shaw Perelson May & Lambert, LLP.