In The Politics of Autism, I discuss the civil rights of people with autism and other disabilities.
COPAA’s national network of 2100+ members works to protect the legal and civil rights of students with disabilities and their families. Our members are at work wherever the voices of families and students need to be heard and COPAA supports them with resources, training, and information to assist in obtaining the equal opportunity for education those children deserve and are entitled to under federal law. However, in its 20 year history, COPAA itself, has never before filed litigation on behalf of its members. We have had to take that extraordinary step for the first time because a federal agency has unlawfully abdicated its responsibility to enforce the civil rights of students.
Today COPAA,The National Federation of the Blind (NFB) and National Association for the Advancement of Colored People (NAACP) filed suit against the U.S. Department of Education, Secretary Betsy DeVos and Candice Jackson, Acting Assistant Secretary for Civil Rights, to challenge the Department’s changes to its complaint handling process to strip students with disabilities and students of color of their rights.
In March, 2018, the federal Department of Education amended the Office for Civil Rights (OCR) Case Processing Manual unilaterally and without public notice and comment. The changes include new provisions to mandatorily dismiss certain complaints and the elimination of complainants’ right to appeal OCR decisions. It is the legal responsibility and stated mission of OCR to ensure equal access to education and to promote educational excellence through vigorous enforcement of civil rights in our nation’s schools. As part of that mission, OCR is supposed to investigate complaints made under Title II of the Americans with Disabilities Act, Titles VI and IX of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973 concerning individual or systemic claims of discrimination. By opting out of that mission and abdicating its responsibility, OCR is pushing the responsibility for civil rights enforcement onto the shoulders of students and their families and advocates – onto COPAA’s members – who do not have the resources of the federal government at their disposal.
Students with disabilities have the right to learn free from discrimination in our nation’s public schools. The right of a parent to go to the OCR to raise claims of illegal discrimination is an important tool for halting discrimination in its tracks. Utilizing complaints from parents or others, OCR has served as a civil rights enforcement agency, protecting the rights of some of the nation's most vulnerable students without having to go to court. However, by changing its Case Processing Manual, DOE has summarily eliminated substantive rights of the very people it purports to serve. And they did this without public notice, without seeking or considering public input, without rationale, and in violation of their own regulations.
COPAA, NFB, and NAACP’s lawsuit argues that, at the very least, before adopting rules that limit the rights of citizens, a federal agency must provide for public notice and seek comment from affected individuals and organizations. DOE provided no legal or factual basis to exclude repeat filers without considering the validity of their complaints. Individuals may file more than one complaint when they have been subject to more than one instance of discrimination or when they have been subject to discrimination by different schools. DOE’s decision to block multiple complaints punishes the victims, not the perpetrators, of discrimination.
Whether a person is aware of one violation and files a single complaint or hundreds of violations – it should not matter. The question is are the complaints meritorious or valid? And then if so – what is ED going to do to make sure its funding is not used to support the discrimination?
Several COPAA members have informed COPAA that they have already been subjected to dismissal of their complaints and denials of their appeals pursuant to the 2018 OCR Manual. Others have filed complaints with OCR in the past and are preparing to file, or expect to file, additional complaints in the near future.
We have many members across the country that use the OCR complaint process to protect the right of students with disabilities to be free from discrimination. Parents, advocates and attorneys file complaints on discriminatory and inequitable access to education. The substance of such complaints may involve inaccessibility of physical locations; inability to access programs and services based solely on disability status; unlawful denial of participation in advanced level courses, extracurricular activities or use of a service animal; and denial of equitable access to communication, websites, course materials and more.
While we understand that ED may want to prevent abuse of the system – they should do so with proper notice and comment; and they should do so in a manner that does not take away citizens’ rights. What they have done in this instance is akin to using a sledgehammer to open a nut. Instead of examining the substance of complaints and taking lawful and productive action, they have smashed the system to smithereens, rendering it useless.
The head of a federal Executive Department may adopt rules for the conduct and government of her agency. However, adoption of such rules must comply with the requirements of the federal Administrative Procedure Act, 5 U.S.C., Chapter 5 (§551, et seq.) (APA). Following notice and comment requirements, the proposing agency must consider, prior to adoption of the rule, all written data, views, or arguments submitted by interested persons regarding the proposed rule.
Plaintiffs argue that not only were the notice and comment requirements not followed, the rule changes to the 2018 OCR Manual are arbitrary, capricious, and not in accordance with law. The complaint asks the court to declare parts of the Case Processing Manual invalid and prohibit the Department from implementing them.
COPAA is represented in this litigation by Eve Hill and Brooke Lierman of Brown Goldstein & Levy of Baltimore.
For More Information: