LEGAL BRIEF

When 'Dear Colleague' Isn't a Friendly Greeting

By Nancy F. Krent/School Administrator, September 2015
  

During the past six years, the U.S. Department of Education has issued at least 18 “Dear Colleague” letters, outlining various concerns and directives for change relating to student civil rights.

The department’s Office of Civil Rights, or OCR, is responsible for investigating individual claims of discrimination and harassment. Not surprisingly, OCR reported a 24 percent increase in complaints from 2008 to 2012. Increasingly, school districts are receiving a letter from OCR announcing a complaint investigation.

Anyone can file a complaint with OCR simply by sending a letter. Following an initial investigation to determine if the agency has jurisdiction, OCR will open an inquiry. The agency then sends the district a letter notifying it of the complaint, outlining the process that OCR will follow and requesting the school’s position statement, along with additional information.

In addition, OCR may conduct on-site document reviews and interviews with staff, students and parents. The process often is lengthy and can expand well beyond the scope of the initial complaint.

If concerns are found, either with regard to the initial complaint or anything else OCR uncovers, the agency first will attempt voluntary resolution. If no agreement is reached, the district can be found in noncompliance, and OCR will require corrective action. If the matter is sufficiently serious, OCR can propose terminating all of the recipient’s federal education funding.


Suggested Actions

Based on my work with numerous school districts who’ve had dealings with OCR, I can offer a few suggestions.

Stay current. Make sure policies and procedures are up to date in the areas of student rights, including special education (IDEA and Section 504), discipline, sex equity and bullying. If these haven’t been reviewed in a few years, do so now. As the number of Dear Colleague letters has grown, OCR has refined or changed its position on many topics.

Provide training regularly. All staff should be part of in-service sessions. Keep copies of materials used and attendance sheets so you can document the training.

Make policies accessible. Parents and students should have easy access to protocols and complaint procedures. Add these to a clearly identified spot on your district’s website. OCR will look on your site when reviewing a complaint. Outdated or missing policies will be a red flag.

Involve counsel pronto. As soon as you receive a complaint or hear from a parent intending to file a complaint, notify your legal counsel and your insurance carrier. Your attorney will work with you to preserve relevant documents and help craft your response. It is unwise to proceed without representation.

If OCR will interview district employees as witnesses, the district’s legal counsel may only attend those interviews if the individual employee agrees. OCR generally does not allow district’s legal counsel to be present during parent or student interviews.

Gather the paperwork. District staff should collect all relevant documents expeditiously. The district’s lawyer must review them before they are sent. OCR often requests documentation of potentially similar cases that were handled differently or statistical information about different groups of students. OCR generally seeks a response within 15 days. While the agency may grant a reasonable request for an extension, it will not agree to lengthy or unreasonable delays.


Agency Slant
 

Take any complaint from OCR seriously, even if you believe the underlying matter was frivolous. If OCR contacts your district, it already has decided the matter has enough merit to begin an investigation.

OCR is not your friend or ally in this process. It is the fact-finding body responsible for enforcement. Although it is supposed to be neutral, many in the school community find OCR’s positions and analysis in particular cases to be slanted in favor of parents and against schools. For this reason, it is especially important to be well-prepared and well-represented in these matters.


Nancy Krent
is a law partner with Hodges Loizzi Eisenhammer Rodick & Kohn in Arlington Heights, Ill. E-mail: nkrent@hlerk.com