How to File an OCR Complaint

OCR is the Office of Civil Rights, U.S. Department of Education.

The complaint form is online (and easy to do).
http://www.ed. gov/about/ offices/list/ ocr/complaintint ro.html

OCR enforces the following laws:

Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color or national origin;

Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex;

Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability;

Age Discrimination Act of 1975, which prohibits discrimination on the basis of age;

Title II of the Americans with Disabilities Act of 1990 which prohibits discrimination on the basis of disability;

Boy Scouts of America Equal Access Act, part of the No Child Left Behind Act of 2001, which prohibits denial of access to or other discrimination against the Boy Scouts or other Title 36 U.S.C. youth groups in public elementary schools, public secondary schools, local education agencies, and state education agencies that have a designated open forum or limited public forum.

Note: Retaliation claims are tough, as there are 5 different elements must be met.

OCR describes it as follows:

"A prima facie case of retaliation is made by showing that: 1) an individual engaged in a protected activity, i.e., asserted or defended a right or privilege secured by the laws OCR enforces, or was closely associated with someone who engaged in a protected activity; 2) the recipient was aware of the protected activity; 3) the recipient took adverse action against the individual contemporaneous with or subsequent to the adverse action; and 4) there was a causal relationship between the adverse action and the individual's participation in the protected activity, i.e., an adverse action followed the participation in the protected activity within a period of time and under such circumstances that a retaliatory motivation can be inferred. 5. Once a prima facie case has been established, the burden shifts to the recipient to articulate a non-retaliatory reason for its action. The evidence is then analyzed to determine whether the recipient's proffered reasons are a pretext for retaliation."

A decision, Susan Barker vs. Riverside County Office of Education, (9th Cir., 10/23/09), reversed a federal district court's decision to dismiss the teacher's retaliation suit on the grounds that she lacked standing under Section 504 and the ADA. The 9th Circuit held that a teacher that complains to her administrators and files a complaint with the US Department of Education Office for Civil Rights for violations of the students' rights is protected from harassment and retaliation under both Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act. After Barker complained to supervisors that the special education services provided to students with disabilities at her school violated the special education laws, and subsequently filed a complaint on behalf of her students with OCR for violations of Section 504, she was allegedly subjected to various acts of intimidation including failure to respond to her emails and calls, excluding her from important meetings, changing her to work sites further from her home, reducing her workload and refusing to allow her to fill in for other staff. Based on the treatment she was receiving, Barker resigned, but alleged that she was "constructively discharged." Notably, on June 16, 2006, the Office for Civil Rights "determined that the preponderance of the evidence showed that....(the school system) retaliated against Barker in violation of Section 504 and Title II...." Holding that Barker had standing to sue under Section 504, the court wrote, "empathetic people who teach and interact frequently with the disabled are the most likely to recognize their treatment and to advocate on their behalf." The court also found that her actions were protected under the anti-retaliation provisions of Title II of the ADA. The case was remanded to the district court to allow her to go forward in attempting to prove the underlying allegations in her complaint.

This decision is a welcome victory affirming the right of school employees to speak out when they believe that the rights of children with disabilities are being violated. Hopefully, it will encourage other school staff that are aware of serious problems in relation to the treatment of children with disabilities to bring these complaints to their school administrators or to the OCR.

Copies of the decision can be downloaded at:
http://www.ca9.uscourts.gov/datastore/opinions/2009/10/22/07-56313.pdf

Download the "How to File an OCR Complaint" PDF document