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Lawsuit Filed Against Department of Ed

  • Posted by: Ashling Soares

The Council for Parent Advocates and Attorneys (“CPAA”), the NAACP, and the National Federation of the Blind filed a complaint against the U.S. Department of Education in federal district court in June, claiming that the Department cannot dismiss civil rights complaints from those who repeatedly file similar actions.

The Office for Civil Rights (“OCR”) enforces laws such as the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“504”), both of which prohibit public entities from discriminating against individuals based on disability. It also enforces Title IX, which bans gender discrimination in education, and other laws that ban discrimination based on age, race, color, or national origin.

“What they’ve done is basically stripped complainants of their rights,” claimed Denise Marshall, the executive director for the Council of Parent Attorneys and Advocates. “They’re dismissing cases, whether or not they have merit.”

Earlier this year, the Department modified its case-processing manual, which is used by OCR. The changes meant that the office reserved the right to dismiss complaints if they represented a “continuation of a pattern of complaints previously filed with OCR by an individual or a group against multiple recipients.” OCR also indicated that it would dismiss single complaints “filed for the first time against multiple recipients that, viewed as a whole, [place] an unreasonable burden on OCR’s resources.” In these cases, it stated that it may conduct a compliance review or provide technical assistance.

Additionally, an appeals process that had been available to complaint filers was eliminated, a new policy which the pending lawsuit challenges. Attorney Eve Hill, a former deputy assistant attorney general at the U.S. Department of Justice who represents all three organizations, argued that the change would need to be open for public comment. “To the extent there’s a rationale for that, they haven’t stated one,” she asserted. “It’s a substantive change to the rights of complainants.”

After the Department of Education changed its case processing procedures, it started dismissing hundreds of complaints filed by Marcie Lipsitt, a disability advocate in Michigan. Lipsitt’s complaints focused on website accessibility. Lipsitt claimed that websites of several educational entities were inaccessible for those who are blind or visually impaired or who cannot use a mouse to navigate a web page. She has filed more than 2,000 complaints in the past two years.

After Lipsitt’s case was dismissed, she began receiving notices that entities that had already settled their accessibility cases were now being given “modified resolution agreements.” The new agreements no longer require entities to meet certain technical accessibility standards, train staff annually on accessibility issues, or report on their progress based on a certain timeline. Lipsitt lamented, “These provisions strip every American of their civil rights and their ability to file civil rights complaints. And the beauty of civil rights complaints has been that everyone has been able to file one.”

Liz Hill, a spokeswoman for the Education Department, said that the changes to the case-processing manual were made in consultation with staff investigators and managers. Dismissing complaints if they’re part of a pattern “is intended to permit [the civil rights office] to remain active in every type of discrimination subject matter while retaining discretion to engage in technical assistance efforts where appropriate,” she said. The office still accepts all complaints, including those from advocacy organizations, she claimed.

If your child is being discriminated against at school, call Ashling Soares Law today at 203.529.5115, or email info@ashlingsoareslaw.com

Author: Ashling Soares

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