OCR Reflects On The Work Done During The First Obama Administration

by Franczek Radelet P.C.

[author: Kendra Berner]

The Department of Education, Office for Civil Rights enforces federal statutes that prohibit discrimination on the basis of sex, disability, age, race, color, and national origin in programs that receive financial assistance from the Department of Education, including school districts, colleges, and universities. OCR recently released a report detailing its work during fiscal years 2009-2012.

One of OCR’s primary roles is to investigate and resolve complaints of discrimination in schools. During the last four years, OCR received and resolved more than 28,500 complaints, a 24% increase over the previous four years. Over half of the complaints were related to alleged discrimination on the basis of disability. OCR states that it has strengthened its resolutions to more systemically address discrimination; resolutions are likely to include policy and program changes; training; community outreach; advisory groups; support and remediation for complainants; the use of climate checks, surveys, interviews, and other means to garner stakeholder input; and frequent monitoring. Monitoring continues until the institution is in full compliance with the law.

In addition to investigating complaints, OCR also initiates proactive investigations, more than 100 during the last four years. These investigations have targeted issues such as sexual violence at the K-12 and postsecondary levels, comparability of resources, bullying and harassment, booster clubs and the distribution of athletic dollars and resources, charter schools and authorizers, state transportation support for students with disabilities, shortened school days, food allergies, access to college- and career-preparatory courses and services, disproportionate discipline rates, minority over-representation in special education programs and under-representation in talented and gifted programs, and access to electronic and web-based educational resources.

A sample of OCR’s resolutions to both complaints and compliance reviews is available online and provides guidance on what OCR is looking for in its investigations. OCR also provides guidance to schools about critical and developing issues in the form of Dear Colleague Letters and Frequently Asked Questions. These documents now include application sections with hypothetical scenarios to help readers understand how OCR applies the laws it enforces. Recent topics include the amendments to the ADA, bullying, sexual harassment and violence, voluntary use of race to achieve diversity in K-12 schools, and equal access to technology for students with disabilities.

The OCR report also describes improvements to the Civil Rights Data Collection, which compiles information on civil rights indicators of K-12 schools and districts. The database is searchable, so anyone, including parents, school leaders, researchers, and policy makers, can access the information. According to OCR, the data reveal “profound inequities,” and while the data alone does not constitute a civil rights violation, it highlights serious concerns; for instance: white and Asian/Pacific Islander students are twice as likely to participate in gifted and talented programs as their African American and Hispanic peers, African Americans are more likely than other students to be labeled with disabilities, diverse districts are less likely to offer calculus and physics courses, African American students are more than 3.5 times more likely to be suspended or expelled compared to white peers, and students with disabilities are more than twice as likely to be suspended out-of-school as non-disabled peers.

One final note of import for school districts and higher education institutions is OCR’s guidance on bullying. OCR states that “the civil rights laws enforced by OCR require that if an institution knows or has reason to know about student-on-student harassment based on race, color, national origin, sex, or disability, it must take immediate and effective action to eliminate the harassment, prevent its recurrence, and, where appropriate, address its effects on the harassed student and the school community.” Additionally, harassment based on religion may violate Title VI, and harassment of LGBT students constitutes sex discrimination if it is based on the student’s failure to conform to sex stereotypes.

While Assistant Secretary Russlynn H. Ali is stepping down, the Obama administration’s increased emphasis on civil rights in the education sector is likely to continue. The OCR website provides numerous resources to assist educational institutions in complying with the civil rights laws. Districts and higher education institutions should consult with their attorneys for advice on specific policies and situations.  

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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