Special Education Tip-of-the-Day: Filing an OCR Complaint

ACDL News, Disability Law, Education No comments

by Rose Daly-Rooney, Legal Director

 

Gloriana is a junior at a science magnet high school who earned one of the five top grades in biology.  Each year, the high school pays the costs for the top five biology students to attend a week-long marine biology field trip aboard a ship.  Other students may attend but they pay the cost of the class.  Students earn credit for the class.  Gloriana is Deaf and American Sign Language (ASL) is her first language.  She requested an ASL interpreter for the trip and the school says that Gloriana’s parents are responsible for the cost of the interpreter.

Mateo is a 10-year-old student living with Autism Spectrum Disorder (ASD).  He frequently elopes from the playground. After training a service dog and Mateo on how to work together and handle the service dog, Mateo’s parents notify the school district that the trained service dog will be attending school with him. The parents explained that the service dog performs the task of interrupting Mateo from engaging in elopement behaviors. The school tells Mateo’s parents to keep the service dog at home because it will be too much of a distraction for the other students.

Elijah has been diagnosed with Attention Deficit Disorder with Hyperactivity (ADHD) and has a 504 plan. He and several other seventh graders were in a fight on campus during lunch. The school suspended Elijah for 12 school days, until the end of the semester.  Elijah has also been informed that he will not be permitted to participate in the eighth-grade promotion and dance. The school suspended the three other students in the fight for less than five days and all are participating in the promotion ceremony.  Elijah’s parents suspect that he received a harsher suspension because of his disability and race (African American).

Mary is a 14-year-old student entering high school student.  Mary has Turner’s Syndrome.  Because of the condition, she has a short stature and has different physical features than her peers.  A group of high school students has made Mary the subject of taunts about her appearance.  Her locker has been vandalized and derogatory words against women and people with disabilities spray-painted on it.  Students are using social media to make fun of her.  Her parents reported the bullying to the school and showed them photos of the locker and screenshots of the online harassment, but after nearly one month, the school has not taken steps to initiate an investigation or prevent more harassment.

Jon’s mother, who uses a wheelchair, filed a complaint against the school district with the Office for Civil Rights because there is no physical access to the football or soccer fields for her and other individuals using wheelchairs to gain access to the seating to attend games. Shortly after learning that Jon’s mother filed the OCR complaint, she was told she could not volunteer in concessions as she had been doing to support the school athletic program.

 

What do these families have in common?  Their children attend public school districts or public charter schools.  The charters and districts must comply with federal nondiscrimination laws. The schools are responsible for appointing program coordinator(s), developing internal grievance procedures, providing notice of non-discrimination, and investigating and taking steps to prevent discrimination and retaliation. These families may use those internal grievance procedures and/or file external discrimination complaints or lawsuits to address discrimination.

Today’s blog provides the basics about filing an external discrimination complaint with the U.S Department of Education’s Office for Civil Rights (OCR).

What agency enforces anti-discrimination laws in schools?

The U.S. Department of Education’s Office for Civil Rights (OCR) enforces several federal civil rights laws that prohibit discrimination in programs or activities that receive federal financial assistance from the U.S. Department of Education (DOE):

  • Discrimination against people with disabilities is prohibited by Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 (Title II prohibits discrimination on the basis of disability by public entities, whether or not they receive federal financial assistance). This includes discrimination against individuals who have a history of or are regarded as having a disability.
  • Discrimination based on race, color, and national origin is prohibited by Title VI of the Civil Rights Act of 1964.  This includes discrimination based on limited English proficiency.
  • Sex discrimination is prohibited by Title IX of the Education Amendments of 1972. This includes discrimination based on pregnancy, parental status, and sex stereotypes.
  • Age discrimination is prohibited by the Age Discrimination Act of 1975.

Our focus in this post is on Section 504 and the Americans with Disabilities Act, and we have not provided details about the other federal anti-discrimination laws that OCR enforces. However, we wanted to list out these other laws in recognition of the fact that students have multiple intersecting identities and that different types of discrimination may occur simultaneously. You can learn more about the other federal antidiscrimination laws listed above on OCR’s website.

According to DOE, these civil rights laws apply to all state education agencies, elementary and secondary school systems, colleges and universities, vocational schools, proprietary schools, state vocational rehabilitation agencies, libraries and museums that receive federal financial assistance from DOE.

What steps are school districts responsible for in addressing disability-based discrimination?

School districts with 15 or more employees must designate an employee to coordinate the district’s efforts to comply with Section 504.  Coordinators help distribute Section 504-related forms, documents, and information to parents; provide staff with information and training about Section 504 policies, practices, and procedures so that the school staff fulfill their responsibilities in a timely and appropriate manner; respond to parent complaints; and monitor compliance.

School districts are required to establish grievance procedures for resolving complaints where you or your child allege that employees, other students, or third parties on campus (e.g. school volunteer) discriminate because of disability.  The grievance procedures must ensure that complaints are resolved promptly and fairly. When OCR looks at whether a school district’s grievance procedures satisfy these requirements, they look at many factors, such as:

  • how the notice of the procedures is provided to students, parents, and employees of the school;
  • whether the procedures afford an opportunity for an adequate, reliable, and impartial investigation;
  • whether reasonable timeframes have been set for each stage of the complaint process;
  • whether the parties are notified of the outcome of the investigation; and
  • whether the school includes an assurance that any discrimination will be addressed and steps taken to prevent future discrimination or harassment.

Who can file an OCR complaint?

Students and parents can file a complaint against their public school if they believe that the school discriminated against them — or against someone else — on the basis of disability, race, color, national origin, sex, and/or age.  Sometimes, discrimination may be based on more than one protected category. For example, Elijah’s parent may allege both disability and race discrimination in their complaint and Mary may check the boxes for sex and disability discrimination. OCR also accepts complaints filed by parent or advocacy organizations. A complainant filing on behalf of another person is responsible for obtaining written consent from that individual. If a parent is filing for a student over age 18, they must obtain the student’s written consent unless the parents are the appointed legal guardians.

Must I first use the school district’s grievance procedures?  

No. You do not need to file a complaint with the school before you file an OCR complaint. You may file a complaint directly with OCR if you prefer.

You can find more information about how to file a grievance with your school district or charter by looking online for a copy of the grievance procedures.

What is the deadline for filing a discrimination complaint with OCR?

You must file a discrimination complaint with OCR within 180 calendar days (including Saturdays, Sundays, holidays and breaks) from the date of the incident that you are complaining about. If at the time you read this, you have already missed the 180-day deadline, you should contact OCR to determine if there are any grounds for filing late.  Do your best not to miss a deadline because the situations when a late filing is permitted are very limited and it is difficult to prove that they apply.

If you choose to file a discrimination complaint with your school district or charter, you can also decide later to file a discrimination complaint with OCR. If you decide to later file a discrimination complaint with OCR, you must file your OCR complaint within 60 days after the school or school district has notified you that they will take no further action (or that your grievance has been “resolved”).

How do I file a complaint with OCR?

You may file online or by mail or fax. You may file a complaint with OCR using OCR’s electronic complaint form.  You may mail or send by fax the OCR Discrimination Form or your own letter. If you write your own letter, be sure to include:

  • Your name, address and, if possible (although not required), a telephone number where you may be reached during business hours;
  • Information about the person(s) or class of persons subjected to discrimination (names of the injured person(s) are not required);
  • The name and location (city and state) of the school or district (or other institution) that engaged in the alleged discriminatory act(s); and
  • A description of the alleged discriminatory act(s) in sufficient detail to enable OCR to understand what occurred, when it occurred, and the basis for the alleged discrimination.

The OCR office for Arizona is in Denver, Colorado. Here is the contact information to submit an OCR complaint to the Denver office:

Office for Civil Rights

U.S. Department of Education

Cesar E. Chavez Memorial Building

1244 Speer Boulevard, Suite 310

Denver, CO 80204-3582

Telephone: 303-844-5695

FAX: 303-844-4303

Email: OCR.Denver@ed.gov

 

Tips for Writing a Sufficient Complaint.  Tell the story of what happened to you or your child.  Include important dates, communications and people involved in the discrimination.  List important documents that help prove the discrimination.  When you are reporting discrimination on behalf of a class or group of students, explain how it is affecting a class.  For example, the school refuses to clean up school graffiti that is derogatory towards students with disabilities.  Take photos of the graffiti and send to OCR with the complaint. Consult advocacy and legal resources to include the specific rules violated by the actions.  Ask someone who is not familiar with the facts to read your complaint and see if it makes sense to them or if they would recommend adding additional facts.  Consult with a legal or parent advocacy organization for suggestions about information to include in your complaint.

It is important to include enough details to give OCR a full understanding about the nature of the alleged discrimination.  If you don’t, OCR can dismiss your complaint and not take any action on the grounds that there is not enough information to understand the complaint.

For example, if Gloriana and her parents want to file a sufficient complaint, they should include these details in their description of the alleged discrimination:

  • A description of the marine biology week-long program;
  • An explanation about the contest for the top 5 spots;
  • Gloriana’s score in biology that earned her the spot;
  • Any announcement in emails or school publications about Gloriana’s spot on the academic team;
  • A brochure about the marine biology program;
  • A timeline that lists the date she was awarded the spot in the program, the date she or her parents requested an ASL interpreter, and the date the school told them that they would be responsible for the cost of the interpreter;
  • A copy of any emails or correspondence refusing to pay for the interpreter;
  • An explanation that Gloriana is Deaf, uses an ASL interpreter in academic settings, and a description of the program and when she would need an ASL interpreter during the program.
  • Gloriana’s parents should consult with an advocacy agency or lawyer about which provisions of the ADA and Section 504 prohibit adding a surcharge for the cost of an interpreter and including that information in their complaint.

Opportunities to Resolve a Complaint without an Investigation.  There are opportunities to resolve a complaint before OCR conducts or completes an investigation. This is known as Facilitated Resolution Between the Parties (FRBP).  OCR describes the process as follows.  FRBP allows the parties (the complainant and the school that is the subject of the complaint) an opportunity to resolve the complaint allegations quickly.  It generally is offered soon after the complaint has been opened for investigation. If both parties are willing to try FRBP, and if OCR determines that FRBP is appropriate, OCR will facilitate settlement discussions between the parties and work with the parties to help them understand the legal standards and possible remedies. Staff assigned by OCR to conduct FRBP will not be the staff assigned to the investigation of the complaint.

OCR does not approve, sign or endorse any agreement reached between the parties as a result of FRBP, and OCR does not monitor the agreement. However, if the recipient does not comply with the terms of the agreement, the complainant may file another complaint with OCR within 180 days of the date of the original discrimination or within 60 days of the date the complainant learns of the failure to comply with the agreement, whichever date is later.

Opportunities to Resolve the Complaint During the InvestigationOCR describes these opportunities as follows. A complaint may also be resolved before the conclusion of an investigation, if the school expresses an interest in resolving the complaint and OCR determines that it is appropriate to resolve the complaint because OCR’s investigation has identified issues that can be addressed through a resolution agreement.  The terms of the resolution agreement must be tied to the allegations and the evidence obtained during the investigation, and will be consistent with the law.  OCR will inform the school that this resolution process is voluntary before proceeding to resolution under this section, and will notify the student or parent of the school’s interest in resolution.  OCR will monitor a resolution agreement reached with the school before the conclusion of an investigation.  After the school signs the resolution agreement, OCR will issue a Resolution Letter.

If OCR reaches an agreement with the school, it can do so without the student’s or parents’ permission. This agreement will end OCR’s investigation, but does not impact the student’s or parents’ right to file a lawsuit, as described below.

Right to file a Lawsuit. Students and parents have the right to file a discrimination lawsuit under Section 504 or Title II of the ADA if they wish.  There is a two-year statute of limitations from the date of the alleged discrimination.  Parents and students are not required to first file a complaint with OCR, but if they do file a complaint with OCR the deadline is not suspended or extended during the complaint process.  In other words, you must file any lawsuit within two years, even if the OCR investigation process has not ended.

For more information about how to file a complaint with OCR, including OCR complaint forms in many different languages, go to DOE’s webpage.

For more information about specific disability-related topics, go to OCR’s Frequently Asked Questions (FAQ) publications on Disability, Accessibility, and Disability-Related Harassment.

For more information about complaint processing, go to OCR’s FAQ and OCR’s Complaint Processing Manual.

Tomorrow’s Tip-of-the-Day:   Section 504 (part 3): Impartial Hearings

 

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