Check Please: OCR’s Future in the Wake of Proposed Budget Cuts

Published reports indicate that President Trump’s proposed budget includes what is approximately a fifty percent reduction in the prior fiscal year’s funding for the United States Department of Education’s Office for Civil Rights [“OCR”]. OCR is charged with responsibility for investigating student discrimination claims in public school districts as well as in private schools, colleges, and universities that receive any form of federal funding.  During President Obama’s presidency, OCR became increasingly high profile, including its April 4, 2011 “Dear Colleague” letter, in which it forcefully reminded educational entities of their obligations to respond effectively to sexual harassment, resulting in a national focus on sexual assault on college and university campuses.  This, in turn, sparked the affirmative consent, or “yes means yes,” movement, as well as a greater willingness by colleges and universities to expel or otherwise discipline students accused of sexual assault, which has, inevitably, resulted in an increasing number of lawsuits attacking the sometimes arbitrary nature of these disciplinary proceedings.

More recently, OCR has been the primary governmental force for transgender student rights. In fact, OCR’s interpretation of Title IX of the Education Amendments of 1972 was the key factor in the United States Court of Appeals for the Fourth Circuit’s holding in G.G. v. Gloucester School District that Title IX’s prohibition against gender-based discrimination extended to transgender students, a decision the United States Supreme Court was set to review until the Trump Administration’s Departments of Justice and of Education rescinded that interpretation in February 2017.  Less well known, but far more consequential in terms of students affected, was OCR’s July 26, 2016 Dear Colleague letter, which radically expanded school district obligations pertaining to students suspected of having attentional disorders, such as Attention Deficit Hyperactivity Disorder, directives that  contained questionable legal support but both practically and financially burdensome on school districts.  This was part of a flurry of Dear Colleague letters OCR issued in the waning months of the Obama administration, expanding the already onerous obligations placed on schools under the Individuals with Disabilities Education Improvement Act of 2004 [“IDEA”] and Section 504 of the Rehabilitation Act of 1973.

The proposed halving of OCR’s budget will undoubtedly have a significant effect upon its ability to respond to discrimination claims, as such a substantial funding decrease would presumably require staff reductions and fewer onsite investigations. This would perhaps be seen as good news by those educational institutions that have endured a full-blown OCR investigation, although it would be wishful thinking for schools to think that OCR will simply stop investigating complaints .  Furthermore, it could prove to be bad news as the proposed budget cut could hamper OCR’s ability to conduct lengthy, thorough investigations, perhaps resulting in ill-considered, and adverse, findings.  More likely, OCR will make a stronger push to get educational institutions to enter into its Early Complaint Resolution process, by which OCR attempts to broker an agreement between the complainant and the school.  It will also be interesting to see whether OCR, even informally, heightens its standard for determining at the outset whether in the context of complaints, there is any there there.  It will be equally interesting to see how far OCR will be willing to push adverse findings should the educational entity being sanctioned challenge them in court.  At the very least, it is reasonable to assume that investigations may drag out far longer than they do currently.

Budgetary constraints or not, the real test of the new administration’s imprint on OCR will be the number and substance of future Dear Colleague letters. As noted, the Department of Education has already rescinded OCR’s assertion that Title IX applies to transgender students.  Whether or not OCR will put the brakes on its ever-expanding, if sometimes legally tenuous, interpretations of the laws it enforces, particularly the IDEA and Section 504, will ultimately prove to be the most significant test of OCR’s place in the Trump firmament.