Three civil rights organizations hit the Department of Education with a lawsuit on Thursday over the department’s changes to how it handles civil rights investigations.
The NAACP, National Federation of the Blind, and the Council of Parent Attorneys say changes to the department’s case processing manual for civil rights investigations is “arbitrary and capricious” and violates the Administrative Procedure Act because they didn’t ask for public comment before making the revisions.
In March, the department made changes to its manual so that the Office for Civil Rights could dismiss complaints that are part of serial filings or filings that are considered burdensome. The changes refer to “a pattern of complaints previously filed with OCR by an individual or group against multiple recipients or a complaint(s) is filed for the first time against multiple recipients that, viewed as a whole, places an unreasonable burden on OCR’s resources.” The department said it made these changes to increase efficiency.
The Office for Civil Rights (OCR) is responsible for enforcement of Title IX, the law prohibiting sex discrimination, the Americans with Disabilities Act, and laws prohibiting racial discrimination. For example, OCR may receive a complaint that alleges school discipline policies hurt the education of students with disabilities.
These groups argue the manual provisions will prevent them from bringing “multiple claims on behalf of their multiple constituents.” The lawsuit specifically accused Education Secretary Betsy DeVos of violating the APA and the head of OCR, Candice Jackson, of breaking the same law by executing the manual. They asked the department to halt enforcement of these rules.
Eve Hill, an attorney representing the civil rights organizations, told Politico that not every manual change should have to be subject to public comment but argued that this is a special case.
“This is a substantive change to whether — not how, but whether — your complaint is investigated. We believe that requires notice and comment,” she told Politico.
When news of the changes first broke in March, attorneys concerned with civil rights issues said they were concerned it would simply make it easier for the office to dismiss cases.
Paul Castillo, a senior attorney and students’ rights strategist for Lambda Legal, a civil rights organization that focuses on the LGBTQ community, who worked in OCR between 2010 and 2013, told Education Week in March that the mission of OCR is not to “turn a blind eye to being a resource that people across the country turn to when they are experiencing discrimination and harassment.”
He added, “It is an across-the-board change that impacts new complaints, existing complaints, investigations that are already open, resolution agreements that have already been signed.”
Catherine Lhamon, who was the head of OCR during the Obama administration and is now the chair of the U.S. Commission on Civil Rights, told the New York Times in April, “The thing that scares me is when they get to say ‘we won’t open some cases because it’s too much for us,’ or ‘we don’t like the complainant,’ or ‘it’s not our week to work on that,’ you start to change the character of the office.”
This isn’t the only change the department has made to how OCR handles complaints. In February, the department officially stated it wouldn’t investigate complaints from transgender students who were been denied access to bathrooms that correspond with their gender. The department’s position is that complaints about access to facilities from trans students are not included in Title IX even though a federal court recently ruled that the law did cover trans students. OCR has also recently moved forward with a new approach to investigating civil rights complaints by narrowing the scope of its investigations. Officials released a memo last year ordering OCR to limit its broad systemic reviews of civil rights law violations to focus more on individual complaints. In this case, the department has also argued that they made this change in the name of increasing efficiency.