Feds dismissing civil rights complaints

The Department of Education’s Office for Civil Rights (OCR) says it gets too many complaints about discrimination, creating an “unreasonable burden” on the Office. It recently changed procedures to make it harder for people to file complaints and is now disregarding hundreds already received. It also scrapped the option to appeal decisions made by OCR in cases that it does take on. Civil rights advocates are not happy, to say the least.

As the late, great Yogi Berra might say, it’s like déjà vu all over again. This isn’t the first time that OCR has tried systematically ignoring many of the complaints it gets instead of saying, “Hey, maybe we need more enforcement to stop all the discrimination that’s out there?”

Education Secretary Betsy DeVos oversees the Office for Civil Rights’ cutback on investigations.

OCR’s new Case Processing Manual does not say how OCR investigators will decide which complaints are an “unreasonable burden” that can be ignored, a New York Times article on the March 2018 changes points out. Education Secretary Betsy DeVos has tried to decrease OCR’s funding despite its heavy caseload. Congress, however, allocated an extra $8.5 million after the new Manual went into effect to help OCR handle complaints of discrimination.

As the Times and The Title IX Blog report, OCR says it will operate more efficiently if it dismisses cases that are part of “a pattern of complaints” by individuals or organizations that file more than one.

Historically, though, that’s how many discrimination complaints get filed. Bernice Sandler filed 265 complaints starting in 1970 against colleges for sex discrimination under Executive Orders 11246/11375, inspiring the National Organization for Women (NOW) and others to file hundreds more. Their actions led to passage of Title IX, outlawing sex discrimination in education. Organizations like the National Women’s Law Center or the NAACP Legal Defense Fund have filed many complaints about sex and race discrimination against students over the years. More recently, a handful of disability rights advocates filed hundreds of complaints, many leading to “resolutions” in which a school agrees to address the discrimination. Just one example: 10 of 11 resolutions in the Fresno, Calif. area published by OCR since October 2013 involve disability rights.

If OCR now is giving a cold shoulder to discrimination victims seeking help, it’s an intersectional cold shoulder, for sure.

Déjà vu all over again

Caspar Weinberger (Photo by Elvert Barnes Photography via Wikimedia/Creative Commons)

In 1975, under President Gerald Ford, OCR tried a similar move, but an intersectional push-back from civil rights advocates forced OCR to back off. New regulations proposed by then-Department of Health, Education, and Welfare (HEW) Secretary Caspar Weinberger would have let OCR skip investigations of individual complaints and just let complainants know whether or not OCR would roll the information into a broader “compliance review” of an institution within a year. That would allow OCR to focus its limited resources on rooting out systemic discrimination and be more efficient, Weinberger said. (The new Manual under DeVos, interestingly, no longer includes wording about investigating systemic issues.)

Back then, OCR was under a March 1975 court order to do its job, and hoped that it could convince the court it was complying if it didn’t have to address all those pesky individual complaints (“Rights Groups Assail E.D. To Reduce Investigations of Bias,” The New York Times, July 16, 1975). Lawsuits by the NAACP Legal Defense Fund, the Women’s Equity Action League, and others were holding OCR’s feet to the fire.

A coalition of 130 groups representing racial and ethnic minorities, women, the disabled, and others in the Leadership Conference on Civil Rights (now Civil and Human Rights) held a press conference in July 1975 denouncing the proposed changes as violating court orders and eviscerating the already minimal enforcement of civil rights laws. The groups threatened legal challenges and lobbied lawmakers. By August, more than 53 senators and 160 national organizations urged HEW to scrap the proposed changes. Eventually, OCR backed down.

Under other Administrations, too, OCR sometimes has dismissed Title IX complaints about sex discrimination in school athletics after requiring an unreasonable amount of evidence from complainants who filed more than one case, Law Professor Erin Buzuvis writes.

Catherine Lhamon, director of OCR under President Obama

Catherine Lhamon, who headed OCR under President Barack Obama and now chairs the U.S. Commission on Civil Rights, told the Times that these changes under DeVos undermine the Office’s mission. OCR is supposed to open a case every time there is evidence that a law is being broken, not select what it thinks are the best cases as the Justice Department does.

One of the differences between the 1975 move and today is that the feds proposed changing regulations in ’75 but went directly to changing a procedural manual in 2018, bypassing public comment. Also, active court cases gave civil rights advocates some leverage to compel OCR to do its job in the 1970s. And even some conservatives spoke up against the changes, arguing that they would give HEW too much power without having to justify its actions (“On Campus with Women,” November 1975 newsletter of the Project on the Status and Education of Women).

With all of the spot fires being lit by the Trump Administration’s general torching of civil rights protections, perhaps it’s not surprising that OCR’s latest move isn’t attracting the attention it once might have.

Civil rights advocates warned in 1975 that taking away individual rights to redress through OCR’s administrative procedures would force the aggrieved to go through the courts. While some cases might succeed that way, courts in general have not been friendly to women when the discrimination involves sexual harassment or assault, as many complaints to OCR do today.

While the courthouse is an immediate option, civil rights advocates undoubtedly will be taking a longer route too — the path to the polls. Procedural manuals, once edited, can be edited again under a new Administration.