Office of Civil Rights Has Increased Its Enforcement Activity

Last Updated: April 11, 2013

This article appeared in the April 2013 Rural Policy Matters.

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In late November, the Department of Education Office of Civil Rights (OCR) released its activity report for the years 2009–2012, Helping to Ensure Equal Access to Education. The report covers the period during which Assistant Secretary Russlyn Ali led the Department.

OCR has responsibility for ensuring equal access to education by enforcing related federal statutes, including: Title VI of the Civil Rights Act of 1964 which prohibits discrimination on the basis of race, color, and national origin; Title IX of the Education Amendment Act of 1972 which prohibits discrimination on the basis of sex by entities receiving federal funding; Section 504 of the Rehabilitation Act of 1973 which protects qualified individuals from discrimination based on their disability by entities receiving federal funding; and Title II of the Americans with Disabilities Act of 1990 which prohibits discrimination against people with disabilities by state and local government agencies, regardless of whether they receive federal assistance.

Investigations of legal violations: special education

Upon taking the helm of the Department, Ali promised a “revitalized” agency more responsive to complaints and allegations of discrimination. OCR received 24% more complaints during this reporting period than the one previous. The most frequent complaints related to special education, followed by complaints of “retaliation.”

In one systemic statewide investigation, OCR studied whether children who rode school buses specifically for students with disabilities were inappropriately receiving a shorter school day and less instructional time compared to students without disabilities who did not ride special transport. To settle this case, the state agreed to implement new, statewide standards for ensuring that students with disabilities on these bus routes were not receiving a shortened school day because of a district’s transportation schedule; conduct audits of school districts’ transportation schedules and appoint a coordinator responsible for ensuring that districts take corrective steps; require districts to create tracking systems for buses; and monitor districts’ implementation of the tracking systems.

Ensuring school discipline is fair

OCR also investigates discrimination against students in school discipline procedures. This report focused on discipline of students with disabilities and on racial disparities in school disciplinary practice.

In the case of special education, student misconduct that is sufficiently severe or pervasive to interfere with the student’s ability to learn may trigger responsibilities under federal civil rights laws. Specifically, under Section 504 and Title II, students with disabilities may not be punished or disciplined for behavior that is caused by or is a manifestation of their disabilities. Further, students with disabilities must not be subjected to discriminatorily different treatment in discipline, and must not be disciplined more harshly or frequently than similarly situated students without disabilities for the same infractions. OCR received more than 1,000 complaints related to discipline of students with disabilities.

OCR launched 20 proactive investigations in schools with significant racial disparities in discipline. These investigations tended to confirm serious discrepancies. For example, one investigation detailed in the report described how school administrators used their discretionary authority to impose harsher punishments than the student code normally called for on African-American students as compared with similarly situated white students. The statistical analysis indicated that it was virtually impossible for that frequency to have occurred by chance. In one instance, an African-American kindergartner was given a five-day suspension for setting off a fire alarm, while a white ninth-grader in the same district was suspended for one day for the same offense.

Guidance for families, communities, and educational institutions on expanded range of issues

In addition to responding to complaints and opening its own investigations, OCR also issues policy guidance, often in the form of “Dear Colleague” letters, about the laws it enforces. The purpose is to increase the awareness of students and their families of their rights and to strengthen their capacity to identify and resolve civil rights and equity issues in their communities.

During the past four years, OCR worked on issues that the Office had never before addressed, even though those issues fall under the laws OCR enforces. One of the primary areas into which OCR expanded its work is sexual violence at the K–12 and postsecondary levels. In April 2011, OCR issued first-of-its-kind policy guidance to ensure that schools and colleges fully understand their Title IX obligations relating to sexual violence. The guidance advises institutions on how to prevent sexual violence and ensure sexual violence is identified and reported when it does occur. The guidance explains the responsibility of institutions to resolve complaints promptly and equitably and to respond to any incident of sexual violence swiftly and effectively.

The OCR also addressed for the first time bullying and harassment in schools and comparability of resources among schools.

The activity report contains an index and summary of all the policy guidance issued from 2009–2012.

Bullying and harassment prioritized

OCR also issues reports on key issues. The report Cross-Cutting Issue: Combating School Harassment and Bullying states: “Bullying and harassment are harmful to students and the learning environment, and are far too pervasive in our nation’s schools and colleges."

In 2010, OCR issued a “Dear Colleague” letter to discuss harassment, including racial and national origin harassment, sexual harassment, gender-based harassment, and harassment based on disability. The guidance explains that institutions must take immediate and effective action to eliminate any known or suspected student-on-student harassment based on race, color, national origin, sex, or disability. Institutions are also required to take action to prevent its recurrence, and, where appropriate, address its effects on the harassed student and the school community.

The policy guidance provides examples of harassment and illustrates how a school should respond in each case. Notably, the agency specifically points out that harassment against students of a particular religion may violate the law. Although religious discrimination is not specifically prohibited under OCR authority, members of religions groups who are subject to harassment on the basis of their national origin, perceived ancestry, or ethnic characteristics are protected. For example, bullying of Muslim or Jewish students may be based not merely on religious bias, but also on bias relating to the students’ perceived ethnic or national origin.

The 2010 guidance document also makes clear that schools may violate Title IX by failing to effectively respond to bullying or harassment of lesbian, gay, bisexual, or transgendered (LGBT) students. Title IX does not cover discrimination based solely on sexual orientation, but harassment of LGBT students constitutes sex-based discrimination if it is based on the student’s failure to conform to sex stereotypes. For example, a student , male or female, may be bullied because he or she does not act or dress according to his or her classmates’ gender-based expectations.

In addition, the guidance states, “Title IX prohibits sexual harassment of all students, regardless of their actual or perceived sexual orientation or gender identity. When harassment targets LGBT students, includes antigay comments, or is partly based on a target’s actual or perceived sexual orientation, Title IX obligates the institution to investigate and remedy any overlapping sexual or gender-based harassment of those students.”

Expansive data collection

The OCR also revamped its Civil Rights Data Collection (CRDC). The data, released in March of this year, includes never-before-available data on teacher experience and attendance; school finance; student retention; participation in SAT and ACT tests; discipline, including data on students with and without disabilities, data on in-school and out-of-school suspensions, referrals to law enforcement agencies, and school-related arrests; harassment and bullying; and restraint and seclusion. (Editor’s note: See previous RPM coverage of the CRDC here, which includes a link to the data website.)

The data was released in an easy-to-use format, and many agencies, nonprofits, and other organizations have used the information for policy recommendations, to monitor grants, and in research. States and local school districts have also introduced or changed policies, including zero tolerance polices, based on analysis of local data.

Read more:

Press coverage:

Department of Education press release:

Read the full report here:

Read more from the April 2013 Rural Policy Matters.