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
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ENFORCEMENT
AGENCIES
•US Dept. of Education, Office for Civil Rights (OCR)
•US Dept. of Justice, Civil Rights Division (DOJ CRD)
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Office for Civil Rights (OCR)
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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.”
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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
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OCR
•
•
•
•
Complaint Investigation and Resolution
Proactive Enforcement: Compliance Reviews
Monitoring of Resolution Agreements
Technical Assistance
Brustein & Manasevit, PLLC
• Carries out mission through:
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OCR Organization
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• Washington, DC Headquarters
• Two Enforcement Directors
• 12 Enforcement Offices
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US Department Of Justice (DOJ)
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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
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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
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 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
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DOJ CIVIL RIGHTS DIVISION
 Enforcement
 Certification
 Negotiated Rulemaking
 Coordination
 Technical Assistance
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 Headquarters in Washington, D.C.
 Division is made up of 11 sections including the Educational
Opportunities and Disability Rights sections
 Disability Rights Section Activities:
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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
•
•
•
•
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Brustein & Manasevit, PLLC
OCR Complaints and
Resolutions
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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
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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
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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
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• Received approximately 3,000 Title IX complaints;
• Began more than 35 investigations regarding systemic
discrimination
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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
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• Received over 11,700 disability-related complaints
• Began more than 30 investigations
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Brustein & Manasevit, PLLC
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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
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Resolution Timeframe
*Data not provided for 2012 and 2013
Brustein & Manasevit, PLLC
• Percentage of complaints pending over 180 days
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Source: US Dept. of ED/OCR FY2013 Budget Request
FY2011 Compliance Reviews
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•
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•
•
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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
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• Conducted in priority areas:
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FY04
FY05
FY06
FY07
FY08
FY09
FY10
FY11
Initiated
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73
9
23
42
29
37
37
Resolved
29
66
72
26
38
24
27
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Brustein & Manasevit, PLLC
Compliance Reviews
Initiated and Resolved
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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)
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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.
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• ED Dear Colleague Letter (DCL) and Fact Sheet, 10/26/10:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague201010.html
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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
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• WH Conference on Bullying Prevention (March 2011)
• Report: ED Analysis of State Bullying Laws and Policies (Dec.
2011)
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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
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CURRENT AREAS OF FOCUS
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• Students with Disabilities
• Sexual Discrimination
• Race, Color, or National Origin Discrimination
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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
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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
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▪ Montessori Academy in Baldwin Park, CA
▪ Beach Babies Learning Center in Old Saybrook, CT
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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!
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• Examination Accommodations
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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
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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
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• OCR Guidance
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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
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Hidden disabilities
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• 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
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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
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 Mystic Valley Regional Charter School
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Service Animals
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• 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
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• 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
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CIVIL RIGHTS ISSUES:
SEXUAL
DISCRIMINATION
Title IX
•
•
•
•
Elementary schools
Secondary schools
Colleges
Universities
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• 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:
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Title IX
•
•
•
•
Gender-based harassment
Sexual harassment
Sexual violence
Equity in athletics
• Protection extends to all aspects of institutions’ education
programs and activities
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• Prohibits all forms of sex discrimination:
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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:
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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
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• College and career prep programs
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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
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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
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Athletics - OCR Investigations
• Athletic events
• Practice times
• Event publicity
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• 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:
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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
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• Ex: University provided fewer and inferior resources to women’s
sports teams
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Equal Treatment – K-12
Brustein & Manasevit, PLLC
• Ex. 1: Suspension or harsher treatment of male but not
female students for wearing earrings
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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
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• 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
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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
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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:
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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
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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
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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
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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
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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
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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”
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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
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 Office for Special Education Programs
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• 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
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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.
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