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Representing School Districts in OCR Investigations

by

Jim Thomeczek THOMECZEK & BRINK, LLC

I. OCR and School Board Policies A. Board Policies

1. School District 1 (Policy AC)

The XXX School District Board of Education is committed to maintaining a workplace and educational environment that is free from discrimination and harassment in admission or access to, or treatment or employment in, its programs, services, activities and facilities. In accordance with law, the district strictly prohibits discrimination and harassment against employees, students or others on the basis of race, color, religion, sex, national origin, ancestry, disability, age, genetic information or any other characteristic protected by law. The XXX School District is an equal opportunity employer. All employees, students and visitors must immediately report to the district for investigation any incident or behavior that could constitute discrimination, harassment or retaliation in accordance with this policy. If a student alleges sexual misconduct on the part of any district employee to any person employed by the district, that person will immediately report the allegation to the Children's Division (CD) of the Department of Social Services in accordance with state law. In accordance with this policy and as allowed by law, the district will investigate and address discrimination, harassment and retaliation that negatively impact the school environment, including instances that occur off district property or are unrelated to the district's activities.

2. School District 2 (Policies 1300 and 1310) The District is committed to providing equal opportunity in all areas of education, recruiting, hiring, retention, promotion and contracted service. The District further commits itself to the policy that there shall be no unlawful discrimination against any person because of race, color, sex, national origin, age, ethnicity, disability, religion, sexual orientation, perceived sexual orientation, or any other characteristics protected by law.

B. Reporting

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Representing School Districts in OCR Investigations by Jim Thomeczek 

THOMECZEK & BRINK, LLC Missouri Bar 

School Law – Part 2 August 27, 2014 

 

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1. School District 1

Students, employees and others may attempt to resolve minor issues by addressing concerns directly to the person alleged to have violated this policy, but they are not expected or required to do so. Any attempts to voluntarily resolve a grievance will not delay the investigation once a report has been made to the district.

Unless the concern is otherwise voluntarily resolved, all persons must report incidents that might constitute discrimination, harassment or retaliation directly to the compliance officer or acting compliance officer. All district employees will instruct all persons seeking to make a grievance to communicate directly with the compliance officer. Even if the suspected victim of discrimination, harassment or retaliation does not file a grievance, district employees are required to report to the compliance officer any observations, rumors or other information regarding actions prohibited by this policy. If a verbal grievance is made, the person will be asked to submit a written complaint to the compliance officer or acting compliance officer. If a person refuses or is unable to submit a written complaint, the compliance officer will summarize the verbal complaint in writing. A grievance is not needed for the district to take action upon finding a violation of law, district policy or district expectations.

Even if a grievance is not directly filed, if the compliance officer otherwise learns about possible discrimination, harassment or retaliation, including violence, the district will conduct a prompt, impartial, adequate, reliable and thorough investigation to determine whether unlawful conduct occurred and will implement the appropriate interim measures if necessary.

2. School District 2 (Regulation 1310)

Students, parent(s)/guardian(s) of elementary and secondary school students, employees, applicants for admission and employment, and sources of referral of applicants for admission and employment with the District have the right to file a formal complaint alleging noncompliance with regulations outlined in Title IX or Section 504.

C. Internal Investigations and Grievances 1. School District 1

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Representing School Districts in OCR Investigations by Jim Thomeczek 

THOMECZEK & BRINK, LLC Missouri Bar 

School Law – Part 2 August 27, 2014 

 

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The district will immediately investigate all grievances. All persons are required to cooperate fully in the investigation. The district compliance officer or other designated investigator may utilize an attorney or other professionals to conduct the investigation. In determining whether alleged conduct constitutes discrimination, harassment or retaliation, the district will consider the surrounding circumstances, the nature of the behavior, the relationships between the parties involved, past incidents, the context in which the alleged incidents occurred and all other relevant information. Whether a particular action or incident constitutes a violation of this policy requires a determination based on all of the facts and surrounding circumstances. If, after investigation, school officials determine that it is more likely than not (the preponderance of the evidence standard) that discrimination, harassment or other prohibited behavior has occurred, the district will take immediate corrective action.

2. School District 2 (Regulation 1310)

The Coordinator shall receive complaints, actively and independently investigate the merit of those complaints, and assist the parties in resolution of those complaints. The Coordinator may be utilized as a resource by any party at any level of the grievance procedures.

Relevant records shall be made available to the grievant to the extent appropriate under the particular circumstances of the specific complaint and as permitted by law. The grievance procedures herein do not deny the right of the grievant to file formal complaints with other appropriate state or federal agencies, such as the Missouri Human Rights Commission, United States Department of Education Office for Civil Rights, or the Equal Employment Opportunity Commission (employees only). Similarly, these procedures do not deny any right of the grievant to seek private counsel for complaints alleging discrimination.

D. Training

1. School District 1

The district will provide training to employees on identifying and reporting acts that may constitute discrimination, harassment or retaliation. The district will instruct employees to make all complaints to the district's compliance officer or acting

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Representing School Districts in OCR Investigations by Jim Thomeczek 

THOMECZEK & BRINK, LLC Missouri Bar 

School Law – Part 2 August 27, 2014 

 

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compliance officer and will provide current contact information for these persons. The district will inform employees of the consequences of violating this policy and the remedies the district may use to rectify policy violations. All employees will have access to the district's current policy, required notices and complaint forms. The district will provide additional training to any person responsible for investigating potential discrimination, harassment or retaliation.

The district will provide information to parents/guardians and students regarding this policy and will provide age-appropriate instruction to students.

2. School District 2

Inform District personnel of the Coordinator's responsibilities and assure periodic meetings of the Coordinator to update staff on Section 504 and Title IX activities. Disseminate information about student rights in relation to Section 504 and Title IX. Disseminate facility accessibility information to students and staff.

II. Charges of Discrimination and Retaliation

A. The Charge

The Office for Civil Rights (OCR) enforces five federal civil rights laws that prohibit discrimination on the basis of race, color, national origin, sex, disability and age in programs or activities that receive federal financial assistance from the Department of Education (ED). Discrimination on the bases of race, color and national origin is prohibited by Title VI of the Civil Rights Act of 1964; sex discrimination is prohibited by Title IX of the Education Amendments of 1972; discrimination on the basis of disability 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); and age discrimination is prohibited by the Age Discrimination Act of 1975.1

                                                            1 As is the case with this passage, most passages set out in this and the ensuing sections are from the OCR Case Processing Manual or documents referenced and linked in the CPM.  The link to the CPM, itself is: 

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Representing School Districts in OCR Investigations by Jim Thomeczek 

THOMECZEK & BRINK, LLC Missouri Bar 

School Law – Part 2 August 27, 2014 

 

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A complaint is a written or electronic statement to the Department alleging that the rights of one or more persons have been violated and requesting that the Department take action. Anyone who believes that an education institution that receives federal financial assistance has discriminated against someone on the basis of race, color, national origin, sex, disability or age, or who believes that a public elementary or secondary school, or state or local education agency has violated the Boy Scouts of America Equal Access Act, may file a complaint. The person or organization filing the complaint need not be a victim of the alleged discrimination but may complain on behalf of another person or group. OCR will assist the complainant in understanding the information that OCR requires in order to proceed to the investigation of the complainant's allegation(s). This will include explaining OCR's investigation process and the rights of the complainant under the statutes and regulations enforced by OCR. OCR will also, to the extent possible, specifically identify the information necessary for OCR to proceed to investigation of the complainant's allegation(s). OCR staff will provide appropriate assistance to complainants who are persons with disabilities, individuals of limited English proficiency, or persons whose communication skills are otherwise limited. OCR will close a complaint for the following reasons:

(a) The same complaint allegations have been filed by the complainant against the same recipient with another federal, state, or local civil rights enforcement agency or through a recipient's internal grievance procedures, including due process proceedings, and

                                                                                                                                                                                                http://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.html#I_1   Other OCR webpages referenced in the CPM include:  http://www2.ed.gov/about/offices/list/ocr/complaints‐how.html   http://www2.ed.gov/about/offices/list/ocr/qa‐complaints.html   http://www2.ed.gov/about/offices/list/ocr/complaintintro.html    

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Representing School Districts in OCR Investigations by Jim Thomeczek 

THOMECZEK & BRINK, LLC Missouri Bar 

School Law – Part 2 August 27, 2014 

 

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1. for pending complaint allegations, OCR anticipates that there will be a comparable resolution process under comparable legal standards; i.e., all allegations will be investigated, appropriate legal standards will be applied, and any remedies secured will meet OCR's standards. OCR will advise the complainant that she or he may re-file within 60 days of the completion of the other entity's action. Generally, OCR will not conduct its own investigation; instead, OCR reviews the results of the other entity's determination and determines whether the other entity provided a comparable process and met appropriate legal standards. 2. for resolved complaint allegations, the resolution meets OCR regulatory standards; i.e., all allegations were investigated, appropriate legal standards were applied, and any remedies secured meet OCR's standards.

1. Standards

To establish a prima facie case of disability discrimination under Section 504, the plaintiff must prove: (1) he is a qualified individual with a disability; (2) he was denied the benefits of a program or activity of a public entity receiving federal funds; and (3) he was discriminated against on the basis of his disability. Timothy H. v. Cedar Rapids Cmty. Sch. Dist., 178 F.3d 968, 971 (8th Cir.1999). “A defendant to such a claim is entitled to assert as an affirmative defense that a requested accommodation would constitute an undue burden.” Id. Further, M.P. must make a showing of “either bad faith or gross misjudgment ... before a [Section] 504 violation can be made out.” Monahan v. State of Neb., 687 F.2d 1164, 1171 (8th Cir.1982).

M.P. ex rel. K. v. Indep. Sch. Dist. No. 721, 326 F.3d 975, 981-82 (8th Cir. 2003).

[A] damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond. [T]he response must amount to deliberate indifference to discrimination.

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Representing School Districts in OCR Investigations by Jim Thomeczek 

THOMECZEK & BRINK, LLC Missouri Bar 

School Law – Part 2 August 27, 2014 

 

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Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).

A school is responsible for addressing harassment incidents about which it knows or reasonably should have known. In some situations, harassment may be in plain sight, widespread, or well‐known to students and staff, such as harassment occurring in hallways, during academic or physical education classes, during extracurricular activities, at recess, on a school bus, or through graffiti in public areas. In these cases, the obvious signs of the harassment are sufficient to put the school on notice. In other situations, the school may become aware of misconduct, triggering an investigation that could lead to the discovery of additional incidents that, taken together, may constitute a hostile environment. In all cases, schools should have well‐publicized policies prohibiting harassment and procedures for reporting and resolving complaints that will alert the school to incidents of harassment.

Dear Colleague Letter on Harassment, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf (OCR October 26, 2010).

2. Fact Gathering – Section 602 of the CPM OCR has the right of access during a recipient’s regular business hours to recipient’s facilities and to information maintained by the recipient that is necessary to determine compliance status on those issues under investigation. See 34 C.F.R. § 100.6(c) and 34 C.F.R. § 99.31(a)(3)(iii). Generally, this includes access to oral information from a recipient’s employees as well as to written or non-written information, such as electronic storage media, microfilming, retrieval systems, and photocopies maintained by the recipient. OCR, not the recipient, decides what information is relevant to a determination of compliance. OCR has no legal authority to require the complainant or any other non-recipients to provide information.

3. Data Requests and Documents

A data request seeks information from the recipient relevant to the investigation. It can be used to initiate information collection or to request additional information after the primary information collection activity has been completed.

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Representing School Districts in OCR Investigations by Jim Thomeczek 

THOMECZEK & BRINK, LLC Missouri Bar 

School Law – Part 2 August 27, 2014 

 

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The recipient will be given 15 calendar days from the date of OCR’s request to submit the information required. This timeframe may be modified, at OCR’s discretion, depending on the nature and extent of data and/or other special circumstances. [U]nless the request is made in the context of an ongoing complaint or compliance review investigation (see 5 C.F.R. § 1320.3), OCR may not generally require a recipient to record information on a “form” or other standardized data collection instrument without obtaining prior approval for its use by the Office of Management and Budget. OCR may, however, suggest suitable formats to be used at the discretion of the recipient as information collection instruments. If a recipient invites OCR to come on-site and collect the requested information, and provides OCR with sufficient access to files, records, logs, and appropriate indexes for OCR to obtain the needed information, then the recipient has provided OCR with the requisite access.

B. Early Complaint Resolution (Sections 201-205 of the CPM) The Early Complaint Resolution (ECR) process facilitates the voluntary resolution of complaints by providing an early opportunity for the parties involved to resolve the allegations. Although encouraged early, ECR may take place at any time during the investigative process. OCR does not sign, approve, or endorse any agreement reached between the parties. However, OCR will assist both parties in understanding pertinent legal standards and possible remedies. 1. Puts the Investigation on Hold

The period of time that a complaint is in the ECR process (i.e., from the date of approval for ECR by the Office Director or designee to the date of the termination of ECR) shall not count in the 180-day GPRA standard period of time for completion of the investigation of the complaint. However, the Office Director or designee is responsible for ensuring that ECR proceeds without undue delay and that ECR is terminated as soon as it is clear that the parties will not succeed in resolving the complaint.

2. ECR Agreement

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Representing School Districts in OCR Investigations by Jim Thomeczek 

THOMECZEK & BRINK, LLC Missouri Bar 

School Law – Part 2 August 27, 2014 

 

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At the conclusion of ECR, OCR will obtain a copy of a statement that the allegation has been resolved, signed by the complainant, or a copy of any settlement agreement that has been signed by the complainant. Once resolution of any allegation has been obtained, OCR will notify the parties in writing that the allegation(s) has or have been resolved; other outstanding issues, if any, are to be resolved through the investigation and resolution process. A copy of any ECR agreement between the parties will be attached to the closure letter.

C. On-Site Investigations (Sections 301-308 and Section 602(d)) OCR will ensure that investigations are legally sufficient and that they are dispositive of the allegations raised in the complaint. OCR resolution agreements should be carefully drafted to ensure compliance with the civil rights laws enforced by OCR and thereby further OCR's mission to ensure equal access to education and to promote educational excellence for all students. 1. Witness Interviews

Interviews are an integral part of most investigations. The objective of interviews is to gain an understanding of the records and data relevant to the issues in the case; to obtain information from and assess the credibility of witnesses; and to evaluate recipient defenses. OCR may conduct individual interviews or focus groups as part of its investigations. Prior to initiating an interview, OCR should inform the witness of the following:

(i) The general purpose of the interview, including OCR’s role, what law or laws may be pertinent to the investigation, and where appropriate, a brief explanation of what is under investigation. (ii) The potential uses of the information to be obtained from the witness and the Freedom of Information Act. A witness who wants a more thorough explanation should be given a copy of the OCR Notice about Investigatory Uses of Personal Information. (iii) The witness’s right to personal representation during the interview by a person of their choice.

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Representing School Districts in OCR Investigations by Jim Thomeczek 

THOMECZEK & BRINK, LLC Missouri Bar 

School Law – Part 2 August 27, 2014 

 

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(iv) If the witness is an employee of a recipient, his or her right to refuse to have anyone else present during the interview and his or her right to refuse to reveal the content of an interview. (v) The regulatory provisions concerning prohibition of intimidating or retaliatory acts by a recipient. (vi) In most cases, the recipient’s counsel will be allowed to be present during upper level management interviews.

2. What You Don’t Know

D. Section 302 Resolutions (Section 302 of the CPM)

A complaint may be resolved at any time when, before the conclusion of an investigation, the recipient expresses an interest in resolving the complaint. OCR should inform the recipient that this process is voluntary. OCR's determination that it is appropriate to resolve the complaint during the course of an investigation must be approved by the Office Director or designee. If approved, OCR will immediately notify the complainant of the recipient's interest in resolving the complaint and will keep the complainant informed throughout all stages of this resolution process. The provisions of the resolution agreement will be aligned with the complaint allegations or the information obtained during the investigation, and will be consistent with applicable regulations. A copy of the resolution agreement will be included with the resolution letter. Resolution letters and agreements must be approved by the Chief Attorney or designee and the Office Director or designee, in consultation with the Enforcement Director. 1. Negotiating the Resolution

a. Time Line

From the date that the proposed terms of the resolution agreement are shared with the recipient, OCR and the recipient will have a period of up to 30 calendar days within which to reach final agreement. During the negotiations period (which may be less than 30 days, at the discretion of the enforcement office), OCR may suspend its investigation of the case. If a final agreement is not reached within the 30-day period, the investigation will resume no later than on the 31st day after negotiations were initiated. The 30-day negotiations period (during

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Representing School Districts in OCR Investigations by Jim Thomeczek 

THOMECZEK & BRINK, LLC Missouri Bar 

School Law – Part 2 August 27, 2014 

 

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which OCR has the option of suspending the investigation) cannot be restarted.

b. Relate Components of the Agreement to the Charge

c. Avoid Tendency to Overreach

2. Clarifying Provisions and Fulfillment of Obligation

a. Clarify Exactly What OCR Will Be Requiring of the District

b. Clarify Frequency of Any Provision that Requires the District to Perform an Act, e.g., Training

c. Clarify Duration of Agreement – Limit Ongoing OCR Oversight

d. Reduce All Clarifications into Writing

E. Letters of Findings At the conclusion of the investigation, OCR will determine that: there is insufficient evidence to support a conclusion of

noncompliance; or

there is sufficient evidence to support a conclusion of noncompliance. (For recipients operating under federal court order see Section 604.)

OCR will issue a letter of finding(s) to the parties. All letters of finding(s) will include a statement that "The complainant may have the right to file a private suit in federal court whether or not OCR finds a violation."

III. Enforcement A. Letter of Impending Enforcement

If the recipient has refused to make a commitment to voluntarily resolve the identified areas of noncompliance, the Enforcement Office will prepare a Letter of Impending Enforcement Action.

B. Appeals Available to Complainants

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Representing School Districts in OCR Investigations by Jim Thomeczek 

THOMECZEK & BRINK, LLC Missouri Bar 

School Law – Part 2 August 27, 2014 

 

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OCR is committed to a high quality resolution of every case. OCR affords an opportunity to the complainant for appeal of OCR’s letters of findin.g OCR also affords an opportunity to the complainant for appeal of OCR’s dismissals or administrative closures of complaints.

C. Enforcing Resolution Agreements

Effective and vigorous case monitoring is essential to OCR's mission of ensuring compliance with civil rights laws that we enforce and ensuring equal access and promoting educational excellence for all students. OCR will closely monitor the recipient’s implementation of the resolution agreement to ensure that the commitments made are implemented timely and effectively and that the recipient is in compliance with the statute(s) and regulations at issue. OCR may conduct onsite visits as part of its monitoring. OCR may publicize these visits in order to obtain information concerning the recipient’s implementation of the resolution agreement. OCR may also conduct individual interviews and focus groups as part of the onsite monitoring activities.

IV. Compliance Reviews

A. Florida and Louisiana

V. Key and Recent Cases

Monahan v. State of Neb., 687 F.2d 1164, 1170 (8th Cir. 1982)(“We do not read § 504 as creating general tort liability for educational malpractice.”). Miener v. State of Mo., 673 F.2d 969, 973 (8th Cir. 1982)(“The district court held, correctly we believe, that . . . individual plaintiffs have a private cause of action under Section 504 of the Rehabilitation Act. The weight of authority in this and other circuits supports the implication of a cause of action.”). DeBord v. Bd. of Educ. of Ferguson-Florissant Sch. Dist., 126 F.3d 1102 (8th Cir. 1997)(“School district's refusal to administer prescription drug to student with attention deficit hyperactivity disorder (ADHD), pursuant to policy by which district refused to administer prescriptions exceeding that recommended by physicians' desk reference publication, did not violate Rehabilitation Act or Americans with Disabilities Act (ADA), as policy was neutral, since it applied to all students regardless of disability, and there was no evidence that policy had disparate effect on disabled students.”).

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Representing School Districts in OCR Investigations by Jim Thomeczek 

THOMECZEK & BRINK, LLC Missouri Bar 

School Law – Part 2 August 27, 2014 

 

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Bradley ex rel. Bradley v. Arkansas Dep’t of Educ., 443 F.3d 965, 976 (8th Cir. 2006)(“To make out a case of retaliation under § 504, the Bradleys must show they were engaged in protected activity, the School District took some adverse action, and a causal connection between the activity and the District’s action.”). B.M. ex rel. Miller v. S. Callaway R-II Sch. Dist., 732 F.3d 882, 887 (8th Cir. 2013), reh'g denied (Dec. 3, 2013)(“We have consistently held that ‘[w]here alleged ADA and § 504 violations are based on educational services for disabled children, the plaintiff must prove that school officials acted in bad faith or with gross misjudgment.’”). Lamkin v. Lone Jack C-6 Sch. Dist., 11-CV-1072-DW-W, 2012 WL 8969061 (W.D. Mo. Mar. 1, 2012)(“The Court finds Letter of McKethan persuasive, and finds that the Plaintiffs’ revocation of services under IDEA was tantamount to revocation under § 504 and the ADA.”).

VI. Questions

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