Special education law is based on a number of federal anti-discrimination laws meant to protect marginalized groups, such as people with disabilities. When a student faces discrimination at school based on their disability, the school is likely guilty of violating federal law. In such a situation, a complaint can be filed with the Department of Education’s Office for Civil Rights (OCR).
Before delving into the process of filing a complaint, let us review the federal laws that are enforced by the OCR.
Filing a complaint
Students and parents can file a complaint with the OCR if they feel that their school has discriminated against them on any of the bases covered by the aforementioned federal laws. Complaints may allege more than one category of discrimination. Parent and advocacy organizations may also file a complaint on behalf of someone else, after they have obtained written consent from the individual. Additionally, if parents wish to file a complaint on behalf of a student over the age of 18, they must also obtain the student’s written consent.
Filing a complaint with the OCR is absolutely not contingent upon exhausting your school district’s grievance procedures. Parents and students may file a complaint with the OCR whether or not they have already brought the issue to the school district.
Complaints may be filed online, by mail, or by fax. To file your complaint online, you may use the OCR’s electronic complaint form. Otherwise, you may print the OCR Discrimination Form or write your own letter, to send by mail or fax.
Individually-written letters must include your name and address, information about the person who has been subjected to discrimination, the name and location of the school district, and a description of the alleged discriminatory act(s) in sufficient enough detail for the OCR to be able to decipher the circumstances. A sufficiently-supported complaint will tell a story and include important dates, communications, and names of the person(s) involved in the discrimination. It will also include pictures or other relevant evidence that provides enough facts for an outside party to make sense of the situation.
Evaluation of complaints
When a complaint is received, the OCR must determine whether the allegation(s) fall under its legal authority - that is, whether one or more of the laws enforced by the OCR has allegedly been violated.
Discrimination complaints mut be filed within 180 calendar days of the alleged incident. This requirement may be waived, but these permissions are rare since the few applicable circumstances that excuse a late filing are difficult to prove.
If a complaint does not fall under the OCR’s legal authority to investigate, fails to state a specific law violation, or is not filed on time, the OCR may dismiss it. The OCR will also dismiss a complaint if it is speculative, conclusory, or incoherent; if it has been resolved and is no longer relevant; if it has been investigated by another federal, state, or local agency; or if the same or similar allegations have been filed by the complainant against the same recipient in state or federal court.
Investigation of the complaint
There are a variety of fact-finding tools that the OCR may use when investigating a complaint. For example, the OCR can review documentary evidence; conduct interviews with the complainant, the recipient of the complaint, and other witnesses; and/or visit relevant sites. In concluding an investigation, the OCR will determine whether there is sufficient evidence to support the conclusion that the accused person(s) failed to comply with the law, with regard to each allegation. Subsequently, the OCR will determine whether a preponderance of the evidence supports a conclusion that the accused failed to comply with the law.
The OCR’s determination will be explained in a Letter of Findings, an informal document which will contain fact-specific investigative findings and dispositions of individuals cases and is sent to the complainant and the recipient.
How the OCR handles a complaint after determining a violation of law
The recipient of a complaint filed with the OCR is typically a school or school district, since anti-discrimination laws tend to apply to institutional-level practices. If the OCR determines that the recipient of the complaint did in fact violate one or more anti-discrimination law(s), the OCR will contact the recipient and try to make sure they will be willing to negotiate a voluntary resolution agreement.
If the recipient is willing to resolve the complaint, they will negotiate and sign a written resolution containing the specific remedial actions that they will undertake to address the area(s) of noncompliance identified by the OCR. The recipient’s implementation of these remedial actions will be monitored by the OCR.
If the school does not agree to resolve the complaint and correct its noncompliance with the civil rights law(s), the OCR may initiate proceedings to suspend or terminate federal financial assistance to the recipient, or may refer the case to the Department of Justice.
How schools are affected by an OCR determination of discrimination
While a situation in which a student shows discriminatory behavior against another student is a procedural violation, which can usually be dealt with at the district-level, a violation of civil rights law by a school, school district, or member of the school faculty is much more serious.
Parent testimonies confirm that filing a complaint with the OCR is an efficient way to hold a school district accountable for discriminatory actions. A complaint against a school can include requests for compensatory measures, meetings for an improved IEP, and staff trainings on federal anti-discrimination laws, for example. Schools simply cannot ignore the mandates issued by the OCR’s resolutions.
Opportunities to resolve a complaint without, or prior to the conclusion of, an investigation
Facilitated Resolution Between the Parties (FRBP) provide opportunities for the complainant and the subject of the complaint to resolve the situation. This is generally offered soon after the complaint has been opened for investigation. If both parties are willing to try this approach, and if the OCR determines that FRBP is appropriate, OCR will facilitate settlement discussions. Staff assigned by the OCR to conduct FRBP will not be assigned to the investigation of the complaint.
The OCR does not approve, sign, or endorse any agreement reached between the parties as a result of FRBP, nor does the OCR monitor the agreement. However, if the recipient does not comply with the terms of the agreement, the complainant may file another complaint with the OCR within 180 days of the original discrimination or within 60 days of the date the complaint learns of the failure to comply with the agreement.
A complaint may also be resolved before the conclusion of an investigation, if the recipient expresses resolving the complaint and the OCR determines that it is appropriate to resolve the complaint because it has identified issues that can be addressed through a resolution agreement. After the recipient signs the resolution agreement, the OCR will issue a Resolution Letter, which will address all allegations resolved in the case.
Right to file a lawsuit
Regardless of the OCR’s findings, students and parents have the right to file suit under Section 504 or Title II of the ADA. This will require a personal attorney. Also, for thesel lawsuits there is a two-year statute of limitations from the date of the alleged discrimination.
The Department of Education is prohibited from retaliating against or intimidating a complainant. Anyone who believes they are a victim of such treatment should file a complaint with the OCR.
Under the governance of the Privacy Act of 1974, the OCR may require the complainant to provide personal information, such as student records or employment records. The OCR may also reveal this information to persons outside the agency in order to verify facts. Additionally, the OCR may release certain information to the press or general public, but this information will not include the complainant’s name or the name of the person who received the complaint.
The Freedom of Information Act (FOIA) gives the public the right of access to records of Federal Agencies. The OCR may honor this, with some exceptions. Generally, the OCR is not required to release records during the case evaluation and investigation process or enforcement proceedings, if the release could reasonably have potential to affect the case evaluation and the ability of the OCR or any other given federal agency to do its job and/or protect the desired privacy of the complainant.