OCR investigates and finds multiple, repeated acts of retaliation, civil rights violations, in the Public Schools of Brookline

The U.S. Department of Education’s Office of Civil Rights (OCR) is the appropriate venue for complaints of retaliation which occur because a parent is simply protecting the rights of their student with a disability. Once a complaint is filed a specific procedure is followed before any investigation starts. There is actually an extremely high bar that is set both technically and legally in order for the OCR to determine a case is within their purview and worth an investigation. Part of this determination is the question the OCR asks itself is “if this complaint is true, does it fall under our area of enforcement?” Even if the OCR decides to investigate, nine times out of ten, cases are resolved without a determination if the District makes corrections that the OCR determines are appropriate and complete before the investigation is completed. This procedural dismissal is known as a “section 108j.”

A complaint of retaliation was filed in early 2020. On July 28, 2020 the OCR responded to the district and the complainant (in part):

Furthermore, OCR received information that the District conducted a training for relevant staff regarding Section 504 and Title II’s prohibitions against retaliation. Lastly, the District has designated a member of the District staff as a contact person for the Complainant in the event there are any future concerns or issues. Accordingly, OCR is dismissing the complaint because it has been resolved and is therefore no longer appropriate for investigation.

Hence the complaint had a dismissal within the section 108j guidelines. But this was only after the training was given  and it was given only to the Deputy Superintendent for Student Services, Casey Ngo-Miller.

Click here to see the training

 

After this another complaint (No. 01-21-1012) was filed by a different family. This one ended with a Resolution Agreement signed by the district on February 9, 2021. Among the key action items are:

  • By April 1, 2021, the District will provide Section 504/Title II training to the District’s Superintendent, Deputy Superintendent for Student Services [ed. note: Casey Ngo-Miller], 504 Coordinator(s), and school principals. The training will include a review of the District’s recently revised Section 504 grievance procedures, including how to respond to complaints of discrimination or retaliation and when to refer complaints up the chain of command, e.g., when the complaint is brought directly to the person being accused of discrimination. The training will also include a specific section on retaliation, including what constitutes a protected activity and what the District should consider before taking action against an individual who may be considered to be engaging in a protected activity.

  • By April 1, 2021, and following the District’s Section 504/Title II training, District counsel will engage the Superintendent and Deputy Superintendent for Student Services in a debriefing of OCR’s Letter of Finding. The debriefing will include a detailed review of the District’s actions that were the basis for OCR’s violation finding and the identification of ways to improve moving forward.

  • The District will send a communication to all district families (including families of students with disabilities who are placed out-of-district) defining retaliation in the context of Section 504/Title II, notifying families that the District prohibits such retaliation, directing individuals who believe they have been subject to retaliation on where and how to file a complaint, ensuring them that the District will take seriously and will respond to all complaints of discrimination and retaliation and directing them to a contact person if they have questions about the notice. The communication will also include a statement that the District is sending the notice to resolve a compliance violation with respect to a retaliation complaint filed with OCR.

  • And very tellingly:

    For the 2020-2021 and 2021-2022 school years, the District will report to OCR for their review a summary of all disability-related complaints made to the following state and federal agencies: Department of Elementary and Secondary Education’s Problem Resolution System (PRS), Bureau of Special Education Appeals (BSEA), Massachusetts Commission Against Discrimination (MCAD) and Equal Employment Opportunity Commission (EEOC). The summary report provided to OCR will include, at a minimum, the date the complaint was filed, the name and contact information for the complainant, a summary of the allegations investigated, and the outcome/status of the complaint. The summary report will include any disability-related complaints (including any complaints raising an issue of retaliation) filed under the District’s grievance procedures and any external complaints filed with state agencies.

Click here to see the entire Resolution Agreement

 

Two other complaints of retaliation (Nos. 01-20-1276 &01-20-1281) were also filed with the Office of Civil Rights by others and those resulted in a Resolution Agreement also signed on Feb. 9, 2021. Among the key action items are:

  • By April l, 2021, the District will provide Section 504/T itle II training to the District’s Superintendent, Deputy Superintendent for Student Services, 504 Coordinator(s), and school principals. The training will include a review of the District’s recently revised Section 504 grievance procedures, including how to respond to complaints of discrimination or retaliation and when to refer complaints up the chain of command, e.g., when the complaint is brought directly to the person being accused of discrimination. The training will also include a specific section on retaliation, including what constitutes a protected activity and what the District should consider before taking action against an individual who may be considered to be engaging in a protected activity.

  • The District will send a communication to all district families defining retaliation in the context of Section 504, notifying families that the District prohibits such retaliation, directing individuals who believe they have been subject to retaliation where/how to file a complaint, ensuring them that the District will take seriously and will respond to all complaints of discrimination and retaliation, and directing them to a contact person if they have questions about the notice. The communication will also include a statement that the District is sending the notice to resolve compliance concerns with respect to a retaliation complaint filed with OCR.

Click here to see the entire Resolution Agreement