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 Overview Students with Disabilities Sexual Discrimination Race, Color, or National Origin Discrimination Implications of ESEA Waivers Resources Brustein & Manasevit, PLLC Enforcement Agencies OCR Trends Current Areas of Focus 2 ENFORCEMENT AGENCIES •US Dept. of Education, Office for Civil Rights (OCR) •US Dept. of Justice, Civil Rights Division (DOJ CRD) 3 Brustein & Manasevit, PLLC Office for Civil Rights (OCR) Brustein & Manasevit, PLLC 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.” 4 OCR & Civil Rights Laws Prohibits Discrimination Based On… Title VI of the Civil Rights Act of 1964 Race, color and national origin Title IX of the Education Amendments Act of 1972 Sex Age Discrimination Act of 1975 Age Section 504 of the Rehabilitation Act of 1973 Disability Title II of the Americans with Disabilities Act Disability of 1990 Brustein & Manasevit, PLLC Statute 5 OCR • • • • Complaint Investigation and Resolution Proactive Enforcement: Compliance Reviews Monitoring of Resolution Agreements Technical Assistance Brustein & Manasevit, PLLC • Carries out mission through: 6 OCR Organization Brustein & Manasevit, PLLC • Washington, DC Headquarters • Two Enforcement Directors • 12 Enforcement Offices 7 US Department Of Justice (DOJ) Brustein & Manasevit, PLLC 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 8 DOJ Civil Rights Division Enforces a broader range of statutes including: May enforce IDEA and Title II of the ADA upon referral from other governmental agencies Brustein & Manasevit, PLLC 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 9 DOJ CIVIL RIGHTS DIVISION Enforcement Certification Negotiated Rulemaking Coordination Technical Assistance Brustein & Manasevit, PLLC Headquarters in Washington, D.C. Division is made up of 11 sections including the Educational Opportunities and Disability Rights sections Disability Rights Section Activities: 10 OCR TRENDS Complaints & Resolutions Spotlight on Title IV, Title IX and Section 504/Title II of the ADA Compliance Reviews Bullying “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 Brustein & Manasevit, PLLC OCR Complaints and Resolutions 12 Source: US Dept. of ED/OCR FY2013 Budget Request Complaint Caseload – FY2011 Brustein & Manasevit, PLLC • FY2011 complaints alleging disability discrimination were 47% of total complaints received 13 Source: US Dept. of ED/OCR FY2013 Budget Request Title IV • Since FY2009-2010, OCR: Brustein & Manasevit, PLLC • Received approx. 5,500 Title IV complaints • Began more than 55 investigations 14 Brustein & Manasevit, PLLC 15 Source: Title VI Enforcement Highlights, US Dept. of Ed/OCR (July 2012) Title IX • Since FY2009-2010, OCR: • Prevent retaliatory acts against those who report Title IX violations Brustein & Manasevit, PLLC • Received approximately 3,000 Title IX complaints; • Began more than 35 investigations regarding systemic discrimination 16 Brustein & Manasevit, PLLC 17 Source: Title IX Enforcement Highlights, US Dept. of Ed/OCR (June 2012) Section 504/Title II of ADA • In FYs 2009 – 2011, OCR: • More than half of all complaints OCR received between FY09 and FY11 were on disability issues Brustein & Manasevit, PLLC • Received over 11,700 disability-related complaints • Began more than 30 investigations 18 Brustein & Manasevit, PLLC 19 Source: Disability Rights Enforcement Highlights, US Dept. of Ed/OCR (October 2012) Resolution Timeframe Brustein & Manasevit, PLLC • Percentage of complaints resolved within 180 days *Data not provided for 2012 and 2013 Source: US Dept. of ED/OCR FY2013 Budget Request 20 Resolution Timeframe *Data not provided for 2012 and 2013 Brustein & Manasevit, PLLC • Percentage of complaints pending over 180 days 21 Source: US Dept. of ED/OCR FY2013 Budget Request FY2011 Compliance Reviews • • • • • • • 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 • Conducted in priority areas: 22 FY04 FY05 FY06 FY07 FY08 FY09 FY10 FY11 Initiated 53 73 9 23 42 29 37 37 Resolved 29 66 72 26 38 24 27 4 Brustein & Manasevit, PLLC Compliance Reviews Initiated and Resolved 23 Source: US Dept. of ED/OCR FY2013 Budget Request Bullying • 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 Brustein & Manasevit, PLLC • Federal Partners in Bullying Prevention Summit (August 2010) 24 Bullying • 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 • ED Dear Colleague Letter (DCL) and Fact Sheet, 10/26/10: http://www2.ed.gov/about/offices/list/ocr/letters/colleague201010.html 25 Bullying • 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-bullyinglaws/state-bullying-laws.pdf Brustein & Manasevit, PLLC • WH Conference on Bullying Prevention (March 2011) • Report: ED Analysis of State Bullying Laws and Policies (Dec. 2011) 26 Bullying • ED/HHS/DOJ site: www.stopbullying.gov • Defines bullying and related topics • • • • • Cyber bullying Risk factors Prevention Responding Getting help Brustein & Manasevit, PLLC • Peer conflict, hazing, stalking, workplace bullying 27 CURRENT AREAS OF FOCUS Brustein & Manasevit, PLLC • Students with Disabilities • Sexual Discrimination • Race, Color, or National Origin Discrimination 28 RECENT CIVIL RIGHTS ISSUES IMPACTING STUDENTS WITH DISABILITIES Bullying 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 Needs 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) OJJDP 2012 webinars & online modules on bullying: http://www.ojjdp.gov/enews/juvjust.html Brustein & Manasevit, PLLC October 26, 2010 OCR Dear Colleague Letter Bullying behavior may cross the line to become “disability harassment” Strong Anti-Bullying Campaign 30 Limiting Enrollment Based on Disability Private schools initially refusing to accept students with autism or other special conditions or needs Compliance Agreements Consent Decree: US v. Nobel Learning Communities Complaints ▪ SC child care and after-school center ▪ California swim school NOTE: Charter Schools Brustein & Manasevit, PLLC ▪ Montessori Academy in Baldwin Park, CA ▪ Beach Babies Learning Center in Old Saybrook, CT 31 Limiting Enrollment Based on Disability—Postsecondary • Application Process Inaccessible • Atlanta’s John Marshall Law School • Law School Admission Council • National Board of Medical Examiners • NJ Complaint • Law School Admission Test – UPDATE! Brustein & Manasevit, PLLC • Examination Accommodations 32 Examination Accommodations • 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 • Dept. of Fair Employment & Housing v. Law School Admission Council – 10/18/12 33 Accessible/Emerging Technology • 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 • OCR Guidance 34 Physical Access • Transportation • 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 • Ensuring equal access to transportation services for students with disabilities 35 Hidden disabilities Brustein & Manasevit, PLLC • 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 36 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” 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 Mystic Valley Regional Charter School 37 Service Animals Brustein & Manasevit, PLLC • 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 38 • 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 Service Animals 39 CIVIL RIGHTS ISSUES: SEXUAL DISCRIMINATION Title IX • • • • Elementary schools Secondary schools Colleges Universities Brustein & Manasevit, PLLC • 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: 41 Title IX • • • • Gender-based harassment Sexual harassment Sexual violence Equity in athletics • Protection extends to all aspects of institutions’ education programs and activities Brustein & Manasevit, PLLC • Prohibits all forms of sex discrimination: 42 Comparable Educational Opportunities • College and career prep programs • 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 • Ex. 1: Underrepresentation of girls in advanced math and science courses • Resolution: 43 Comparable Educational Opportunities • 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 • College and career prep programs 44 Comparable Educational Opportunities ▪ 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 • College and career prep programs 45 Athletics – Resolution Agreements • FY2009-FY2011: • 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 • OCR initiated 17 Title IX investigations • OCR received more than 900 Title IX complaints 46 Athletics - OCR Investigations • Athletic events • Practice times • Event publicity Brustein & Manasevit, PLLC • 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: 47 Athletics • 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 • Ex: University provided fewer and inferior resources to women’s sports teams 48 Equal Treatment – K-12 Brustein & Manasevit, PLLC • Ex. 1: Suspension or harsher treatment of male but not female students for wearing earrings 49 RACE, COLOR, OR NATIONAL ORIGIN DISCRIMINATION • 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 Equal Treatment - Postsecondary 51 • 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 Title VI 52 Case Study: English Language Learners - AZ • 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 • 8/3/10 Letter 53 ELLs - AZ • 8/27/10 Letter • 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 • AZ practice for exiting students from receiving EL services • Finding: 54 ELLs AZ Settlement • 8/31/12 • 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 • Settlement reached between Arizona Department of Education, The Department of Justice, Civil Rights Division, and the Department of Education, Office for Civil Rights 55 National Origin • Ex. 1: “Kick a Jew Day” in high school • Resolution: Bullying -- Harassment based on national origin Brustein & Manasevit, PLLC • Publicized on Facebook/social media • Kicked Jewish students • Made anti-Semitic remarks and gestures, including Nazi salutes 56 Discriminatory Discipline Oakland Compliance Review • 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 • Oakland Unified School District 57 Discriminatory Discipline Mississippi • 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 • DOJ alleging Mississippi entities violated due process rights of juveniles • School-to-Prison pipeline 58 ESEA WAIVERS AND POTENTIAL CIVIL RIGHTS IMPLICATIONS 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 Background on ESEA Waivers 60 ESEA Waivers and Potential Civil Rights Issues • 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 • Controversy in Virginia and Florida on differentiated achievement goals based on race and “super subgroups” 61 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 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 Office for Special Education Programs 62 • Title IX Enforcement Highlights http://www2.ed.gov/documents/press-releases/titleix-enforcement.pdf • Title VI Enforcement Highlights http://www2.ed.gov/documents/press-releases/titlevi-enforcement.pdf • Disability Rights Enforcement Highlights http://www2.ed.gov/documents/news/section504.pdf • OCR FY2013 Budget Request http://www2.ed.gov/about/overview/budget/budget 13/justifications/bb-ocr.pdf Brustein & Manasevit, PLLC Resources 63 Questions? DISCLAIMER Brustein & Manasevit, PLLC 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. 65