OCR's Jurisdiction - A Case Study regarding the Investigation of a "Systemic" Allegation

Transcription

1 Results. Relationships. Reputation. OCR's Jurisdiction - A Case Study regarding the Investigation of a "Systemic" Allegation Presented by Laura Bistrow Paradise Valley Unified School District Jennifer N. MacLennan, Esq. Gust Rosenfeld P.L.C.

2 Overview of the Office of Civil Rights Federal branch of the Department of Education Charged with responsibility for implementation of many federal civil rights laws, including Section 504 of the Rehabilitation Act and Title II of the Civil Rights Act (prohibiting disability discrimination); Has authority to refer matters to the Department of Justice Works in regions Arizona is covered by the Denver regional office; Works pursuant to a Case Processing Manual republished February 2015

3 OCR Complaints Can be filed by anyone not just parent/student School district typically alerted by receiving a notification and data request the request will contain the complainant s name Data requests often request information re other students not a FERPA violation to provide

4 OCR Complaints Generally must be filed within 180 days of last alleged discriminatory act OCR has to have jurisdiction over the agency Must constitute a claim under a relevant law that OCR has authority to enforce OCR will hold off if there is a pending due process proceeding

5 Can include: OCR Investigations Extensive data requests and production of documents Interviews On site visits Require use of climate surveys Parent meetings

6 A Case Study - Systemic Investigation Two complaints received arose out of same school Complaints alleged unequal access because students obtained resource services during science and social studies time District agreed to participate in early complaint resolution for both complaints Scheduled with the same OCR mediator not an attorney

7 ECR Process

8 A Case Study Systemic Investigation Despite resolution of complaint through ECR process in first month, case involved: Direct contact by OCR to parents; Scheduling of off site parent meeting; Media attention

9 A Case Study Systemic Investigation

10 A Case Study Systemic Investigation OCR refused to resolve the systemic portion of the complaint that this occurred with other students and on other campuses through the ECR process OCR attorney specifically expanded the investigation to include issues raised during the investigation but not made in the complaint

11 From OCR s CPM The agreement must include action steps that, when implemented, will remedy both the individual discrimination at issue as well as any systemic discrimination.

12 From OCR s CPM The complainant withdraws the complaint after OCR has opened it for investigation. OCR will determine whether the investigation raises systemic issues that warrant continuing the investigation, notwithstanding the complainant s withdrawal.

13 From OCR s CPM The death of the complainant makes it impossible to investigate the allegations fully, or forecloses the possibility of individual relief. Generally, this provision does not apply where the investigation raises systemic issues that warrant continuing investigation or where the allegations involved potential relief beyond that solely for the complainant.

14 A Case Study Systemic Investigation District resolved other parent complaint and the systemic allegations via a 302 resolution agreement Methodology for resolving complaints short of full blown investigation Involves entering into a resolution agreement Agreement between OCR and District Complainant does not have to agree to terms

15 302 Resolution Agreements 302 resolution agreements are voluntary OCR s Section 302 of the Case Processing Manual requires OCR to include certain elements Some negotiating on language and terms possible Terms vary extensively but can include: training; compensatory education; and revision of policies. Always includes monitoring which can take years

16 Voluntary 302 Resolution Agreement

17 Monitoring -302 Resolution Agreement Will continue for a two year period Involves extensive production of documents There has been continued contact between OCR and parents of complainants and other students Extensive compensatory education

18 Recent DOJ Determination U.S. Department of Justice issued letter to governor of Georgia and the state s attorney General in July 2015; Regards conclusion of a systemic investigation into the exclusion of emotionally disturbed students and their access to the educational environment

19 Recent DOJ Determination Georgia Network for Educational and Therapeutic Support (the GNETS Program ) State wide program for provision of special education services to students with behavioral difficulties

20 Recent DOJ Determination Letter addresses systemic unnecessary reliance on the segregated GNETS Program Found unnecessarily segregating students with disabilities from their peers Failed to provide equal access to programs that regular education students enjoyed

21 Recent DOJ Determination DOJ using allegations of discrimination Title II and not denial of FAPE; Involved extensive review, interviews, observations and site visits across the State. Program had been operating for 40 years with $70 million dollar budget

22 Recent DOJ Determination Found program discriminated against students with disabilities; One of findings involved unequal access to extracurricular activities and electives; Discriminated because students were segregated and in unequal facilities Requiring comprehensive reform

23 Results. Relationships. Reputation. Thank You