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The Department of Education could make it easier for its civil rights office to dismiss and close cases, according to a draft of the department’s case-processing manual obtained by Bloomberg Government, raising concerns among civil rights advocates.
The proposed changes to the department’s Office for Civil Rights case-processing manual are not final, but some civil rights lawyers say they worry the proposals could mean discrimination could be overlooked or even ignored. The draft makes numerous changes geared toward narrowing the scope of investigations to focus on each complaint, rather than look for systemic violations of civil rights laws. A similar message was sent to the department in a June internal memorandum.
Potential changes to the manual would also allow a case to be dropped even if OCR has found evidence of wrongdoing. Also, the changes appear to eliminate the appeal process—measures that could lead to complaints being resolved more quickly by OCR, where staff faces an increasing caseload.
“This draft prioritizes the speed of closure over civil rights protection,” said Catherine Lhamon, who led the OCR under the Obama administration and reviewed the draft manual. “If this draft was finalized as it is now drafted, it would be a serious misdirection for the agency Congress charged with the sacred trust to protect America’s children and students in schools.”
Lhamon noted that when the OCR updated its manual under her tenure, the draft did undergo changes before it was finalized. The draft obtained by Bloomberg Government was sent to OCR staff last week by current Acting Assistant Secretary for Civil Rights Candice Jackson. It is expected to be finalized in early 2018.
The proposals to make cases easier to review come as the OCR employees juggle a larger number of cases. The average OCR staffer handled 41 cases in fiscal year 2016, up from 26 cases the year before, and 15 cases a decade ago according to department numbers. In the meantime, the percentage of investigative staff grew only 5 percent from fiscal 2006 to fiscal 2016. Still, the White House recommended cutting 46 positions from the OCR in its budget request for the current fiscal year.
The revised case-processing manual will ensure OCR will resolve cases faster for students, said Education Department spokeswoman Liz Hill.
“For too long, too many students have had pending cases at the Office for Civil Rights with no resolution in sight,” she said in a statement to Bloomberg Government. “In order for OCR to fulfill its mission to ensure all students have the opportunity to learn in an environment free from discrimination, OCR is undergoing a revision to its case processing manual that will allow the department to work more efficiently and resolve cases in a more timely manner.”
Seth Galanter, who served as principal deputy assistant secretary of OCR during the Obama administration, said the office is “trapped in a cycle of under staffing and overwork.”
“They’re starving OCR of resources and staff and then they’re expecting existing staff to somehow provide resolutions in all of these cases,” said Galanter, who currently serves as senior director of the National Center for Youth Law. “The only way that can happen is if they only look at the surface of the case.”
“Whatever the reasons,” Galanter said of the proposed update, “even if they’re well-intentioned, they do lead to discrimination continuing in a way that it wouldn’t if OCR did its full job.”
There are a number of ways OCR can currently dismiss a case. Under the rules, OCR staff can’t close a complaint if they have found significant evidence of a violation, regardless of whether it is withdrawn, settled or subject to a court ruling. That would change if provisions in the draft manual make the final version.
While the suggested change could lead to students and parents getting relief faster than they would than through an investigation, it wouldn’t necessarily solve a wider issue of discrimination that might be present in a school district or at a college. The current manual limits cases that can be closed when there are concerns about systemic discrimination, while the proposed manual would remove those safeguards, Galanter said.
“Discrimination usually comes out of a culture that allows it,” he said. “When you’re dealing with 50 million kids, you can’t fix their problems one-by-one.”
After the OCR completes its investigation, the proposed case processing manual would still require monitoring of a school to ensure the resolution was being carried out. But OCR could disregard any civil rights violations it found during monitoring that didn’t have to do with the specific case.
The proposed guidance could also expand the type of cases resolved through mediation and allow the mediation to occur at any point in the investigation, instead of only at the start of a case. This too could help students or parents get a quicker resolution than waiting for the OCR to finish its investigation, Lhamon said. But the agreement reached by the parties “may or may not be sufficient to satisfy the law,” she added.
The draft would also allow complaints to be dismissed if it is determined it be “part of a clear pattern of misuse of OCR’s investigative process.” The draft defined misuse as filing multiple complaints involving similar issues, or lacking specificity, or dealing with previously resolved matters. It also includes complaints which have “evidence of retaliating against OCR’s administrative processes.”
Lhamon said during her time leading OCR, people would file hundred or thousands of complaints and verbally abuse OCR staff. She said he was sympathetic to the effort to protect staffers, but acknowledged the proposal wasn’t in line with the department’s mission.
“That dangerous power—not to investigate because a complainant is unappealing— would obviously leave distressing room for abuse,” she said.
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