Disability and Civil Rights Groups Sue DeVos Over Investigation Rollbacks
Posted May 31, 2018 9:41 p.m. EDT
BALTIMORE — Three national civil rights organizations sued the Education Department on Thursday over new procedures that allow its Office for Civil Rights to dismiss complaints it determines to be burdensome or a drain on the department’s resources.
The National Federation of the Blind, the Council of Parent Attorneys and Advocates, and the National Association for the Advancement of Colored People said the department was “arbitrary and capricious” in making substantive revisions to its case-processing manual, which guides its handling of civil rights complaints, without giving the public notice, an explanation or a chance to comment. The organizations, which all have headquarters in Baltimore, also charged that the changes were unlawful and undermined the agency’s statutory obligation to investigate any complaint when there was reason to believe a civil rights violation had occurred.
The suit, filed in U.S. District Court in Maryland, accused Education Secretary Betsy DeVos of violating the federal Administrative Procedure Act, and the acting assistant secretary for civil rights, Candice Jackson, of breaking the law by enacting the new manual. The groups asked a judge to stop the department from enforcing the new provisions.
“This is one way, sometimes the only way, for vulnerable people who can’t afford to litigate, to get their cases heard, and that’s being taken away,” said Eve Hill of Baltimore-based Brown Goldstein & Levy, the lead lawyer for the plaintiffs.
In March, the department changed the manual to allow the Office for Civil Rights to dismiss complaints if they represent “a pattern of complaints previously filed with O.C.R. by an individual or a group against multiple recipients,” or complaints “filed for the first time against multiple recipients” that place “an unreasonable burden on O.C.R.'s resources.” The department also eliminated appeals because it said they rarely resulted in a different outcome.
Education Department officials said the revisions targeted “frequent flyers,” a handful of individuals who had generated thousands of complaints that were straining the department’s resources. Officials said the changes were partly a result of feedback from career investigators who were not able to respond to other complaints because they had amassed such a backlog. They said that in some cases, issues prompting mass filings warranted “technical assistance” rather than exhaustive investigations.
The changes, according to Liz Hill, a department spokeswoman, reflected the office’s “commitment to robustly investigating and correcting civil rights issues” and “improving OCR’s management of its docket, investigations and case resolutions.”
Hill declined to comment on the lawsuit, citing pending litigation.
The department said the revisions would not apply to broad complaints filed by groups, but the lawsuit said the provisions, as written, gave no such assurances. The manual does not define what constitutes a “pattern,” and the organizations argue that the provisions, as written, are not limited to those complaints that would place an “unreasonable burden” on the civil rights office. Unlike the previous manual, the current one leaves no room for discretion, stating that such cases will be dismissed.
The changes have already resulted in the dismissal of more than 500 cases filed by a Michigan-based disability rights advocate, Marcie Lipsitt, who had opened more than 2,400 web-accessibility complaints against various educational institutions in the last two years.
Her complaints resulted in more than 1,000 resolution agreements with institutions such as colleges and universities, which vowed to make their websites accessible to people who are deaf or blind or who struggle with fine motor skills. The department has started revising some of those agreements in light of the new case-processing manual, Lipsitt said.
Last week, House and Senate Democrats wrote to DeVos denouncing the manual’s changes. They noted that “frequent flyers” are usually advocacy groups or individual advocates who have either expertise or resources that allow them to identify systematic violations.
“Selectively choosing which students will be protected and which complaints will be investigated is a violation of the law and will result in serious civil rights violations going unchallenged,” said the letter, organized by Sen. Bob Casey, D-Pa. For the last decade, the National Federation of the Blind has helped its members navigate technology in schools and on college campuses, said Mark Riccobono, the organization’s president. But progress has been slow, particularly in higher education, where the organization has seen members drop out of school because they could not gain access to the registration system or classes that were available only online.
“This is going to have an effect on the class of blind people who really need the Department of Education’s Office for Civil Rights to continue to enforce the avenues of access that really aren’t being met,” he said.
In 2009, the organization filed several complaints with the civil rights office and the Justice Department against colleges and universities that were deploying inaccessible Amazon Kindle devices in classes. The complaints resulted in resolution agreements with several colleges and universities.
The Council of Parent Attorneys and Advocates represents lawyers, advocates and parents who file complaints frequently and repeatedly on a range of issues related to special education services. Denise Marshall, its executive director, said the department’s effort to curb mass filings was like “using a sledgehammer to open a nut.”
“Whether a person is aware of one violation, or ends up needing to file hundreds of complaints, should not matter,” Marshall said. “The question is are the complaints valid.”
Brad Berry, general counsel for the NAACP, said he was concerned that the new case-processing manual was part of a larger goal of the Trump administration to curb civil rights enforcement. The new manual could close the organization’s last avenue to pursue relief when policies disproportionately affect students of color because that kind of discrimination can be combated only by the federal government.
The NAACP is one of several groups that have filed complaints on behalf of students and against schools over disciplinary and special education policies that may unduly affect black children.
Berry said the lawsuit represented one of the most important moments in the organization’s history since Brown v. Board of Education.
“We’ve seen what it looks like when civil rights are under attack,” he said. “When we see it, we fight it.”