Thursday, May 2, 2013

Dear Colleague Letter On Retaliation Law from the U.S. Department of Education's Office for Civil Rights

A friend and parent who has had similar issues dealing with their school district pointed out to me today that the United States Department of Education's Office for Civil Rights (ED OCR) recently posted a Dear Colleague Letter on their website regarding Retaliation. I find it funny that the Dear Colleague letter was posted one day before ED OCR sent out a monitoring letter to our school district that had been delayed for nearly 9 months. ED OCR will occasionally post Dear Colleague letters when they see a preponderance of problems in school districts, colleges and universities that fall under their jurisdiction. This Dear Colleague letter is significant in the fact that our school district has taken the stance over the last 5 years that they have been doing things properly according to what they have been told by the district attorneys. However, as documented in several monitoring letters sent to our school district from ED OCR, Fox C-6 HAS NOT been properly following the law. More significant is the fact that because of our efforts in asking our school district and school board to do the right thing and properly follow the law, my family and I have been the target of numerous and continued retaliatory actions by our school district. I'm sure our Superintendent will deny that. I'll just go ahead and present the facts for everyone and that way you can decide for yourself. I'm sure that that the retaliation has been done in order to keep us from pursuing the issue with the federal agencies and hoping that we would eventually give up. It's worked for our school district in the past. So why quit now?

I believe our Superintendent and school district attorneys are probably disappointed with the fact that we haven't stopped our efforts to get our school district to do the right thing. I'm sure they thought I would have given up after receiving a "Cease and Desist" letter from the latest district attorney (#3) handling the case that was sent in August 2012. Well maybe the attorneys didn't want us to stop because they get paid to make things go away. Our Superintendent has to be asking herself why I haven't given up after reading all of the defamatory and slanderous remarks made against me and my family in online forums by supporters of our superintendent and school board members. She must really be perplexed. It could have something to do with the fact that I know our school district is in the wrong and that I will make sure that the truth comes out. Eventually my efforts will help a lot of other students and parents and keep them from having to go through the same thing. I'm certainly not going to allow our Superintendent to continue to make false and misleading statements about me and what the district is doing. I will always choose to take the high road and do what is right.

So,  what are some examples of retaliation? Well, one of the first occurrences of retaliation from our school district after we filed a complaint with ED OCR was when our school Superintendent Dianne Brown (now Critchlow) refused to let me speak with our school board during closed session in 2008. I had already been speaking with then board president Wes Griffith and board secretary Debby Davis prior to the start of that night's meeting. School board members Dan Smith, Ruth Ann Newman and Assistant Superintendent Dan Baker were also there. I was talking to Wes Griffith and Debby Davis about being put onto the next month's closed session agenda after Wes Griffith had forgotten to put me on that night's agenda. I had spoken with him earlier that afternoon on the phone and he had agreed to allow me to speak to the board that night per board policy. Our board secretary had already checked the schedule for the next month's meeting and had already informed our board president and I that I could be on next month's agenda when Superintendent Dianne Brown arrived at the meeting. She immediately informed me that the school board had already discussed my issues and that they had decided that they were not going to meet with me. It sounded to me like it was our Superintendent's decision and NOT our school board's decision that they weren't going to meet with me. Why wouldn't our school board president and school board secretary know that they had already decided not to me with when they told me that they would put me on next month's agenda? How difficult is it for our Superintendent to tell the truth? Needless to say, I didn't get my chance to speak with the board at the next month's meeting after our Superintendent made her decision for the board. That is a problem for both our school board and our community.

In speaking with attorneys from the Kansas City Office for Civil Rights at a seminar a couple of years ago, they informed me that our Superintendent's actions in 2008 sounded like retaliation to them. I must point out that the KC ED OCR attorneys at the seminar weren't the same attorneys that have been handling our complaint since August of 2008. It was good to know that some ED OCR attorneys considered it retaliation when our Superintendent blocked me from speaking with our school board. That's how she has been running our district and our board has done nothing to stop it.

The retaliation has only gotten worse since then. I also know that this has happened to another parent in our district that filed a complaint with ED OCR and MO DESE. But, since it was the husband of the teacher that made the retaliatory comments towards that parent, ED OCR didn't consider it to be retaliation from the school district. I would have to say that the Kansas City ED OCR Office has been walking a thin line for quite some time on what IS or IS NOT retaliation. Hopefully the Dear Colleague letter from Washington D.C. will bring about some changes in the Kansas City ED OCR office. I know that teachers and staff in our school district are afraid to speak up and say anything for fear of retaliation from our Superintendent and Central Office Administrators. School board members Linda Nash, Cheryl Hermann and John Laughlin all acted as if they were unaware that school employees were afraid to speak up and point out problems in our district at a meeting held before the March school board meeting with two recipients of "Cease and Desist" letters from our Superintendent. Cheryl Hermann admitted at that meeting that she wasn't even aware of the fact that "Cease and Desist" letters prior to the issue being brought out in the open. It seems that our Superintendent has a problem with informing our school board members about issues in our school district.

The Cease and Desist letter that I received in August 2012 from the school district attorney informed me that if I continued to speak with people in our community and current and former teachers and administrators that the district would take legal action against me. The district didn't want me talking about the complaints that we had filed with ED OCR and other issues in our school district. I guess I should say thank you to our Superintendent for formally documenting the district's retaliation towards me and my family for filing OCR complaints against our school district. I had no intentions of filing an OCR complaint against Fox until I was told that I should file a complaint in 2008 by a MO DESE Compliance Officer. He told me that he thought our school district wasn't following the law and I should file a complaint. If ED OCR didn't think my complaint was valid it would be dismissed.

Well, our complaint with the district wasn't dismissed and our Superintendent wasn't happy with the fact that I filed a complaint. So much so that she had Vern Sullivan a former Fox C-6 School Board Member and former employee and Friends of Fox political action committee representative call my father into her office.  She told my father to tell me to stop pursuing things with the district. My father had worked for the school district for 42 years and was an assistant superintendent for more than 20 years. My father has also been the target of several online posts that have been made on the Topix online forum. Sometimes the online posts contain information that is not public information and only select administrators would or should know that information. That is why I fully believe that some of those posters are school administrators, their spouses, or their family and friends. Many of the retaliatory online comments made against me and my family directly reference complaints filed against our district with ED OCR. The general public doesn't know or care about our issues and concerns with the school district. But, our Superintendent certainly does. She only wants the public to know that Fox is a National District of Character and that our district is in the Top 10 of something in our state.

I hope our current school board and our former school board members take the time to read the Dear Colleague Letter from the U.S. Department of Education's Office for Civil Rights. This Dear Colleague letter points out how the U.S. Department of Justice (DOJ) gets involved with cases and how federal monies can be terminated from the Department to the recipient. The letter states why the USDA Office for Civil Rights (USDA OCR) referred our USDA case to the U.S. Department of Justice. Fox C-6 refused to comply with their Final Agency Decision that was sent to the school district in August 2011. The USDA's referral to the DOJ was not made due to retaliation from the district or supporters of the district. But, now that the Department of Justice has our case, they now have the ability to investigate any retaliation that has been occurring ever since our complaints were filed with ED OCR and USDA OCR. The Dear Colleague letter which applies to both ED OCR and USDA OCR states that, "The enforcement actions available to OCR include initiating administrative proceedings to suspend, terminate, or refuse to grant or continue financial assistance made available through the Department to the recipient; or referring the case to the U.S. Department of Justice for judicial proceedings." This language is in the ED and USDA's Case Processing Manuals. It is being spelled out in this letter as a reminder to school districts, colleges and universities due to recent cases and DOJ rulings.

ED OCR, or at least the Kansas City ED OCR Office that we have been dealing with seems to have difficulty recognizing retaliation. The KC ED OCR Office also doesn't seem to put much effort towards enforcing the law based upon the fact that they continue to issue new deadlines each time our school district fails to meet the deadlines set by ED OCR. If ED OCR were to follow their guidelines of trying to close cases out in 180 days rather than allowing things to continue for nearly 5 years, I believe that their office could save the taxpayers quite a bit of money. With attorneys at ED OCR making over $100,000 per year, it adds up when there are a couple of attorneys assigned to a case. I know there a lot of other cases that have been in "monitoring" status for many years. In fact, the attorneys working our case laughed about the fact that ED OCR has some cases that have been in monitoring for more than 10 years. It seems that their might be a management issue that needs to be addressed at ED OCR so cases can get resolved in a more timely manner.

You can find U.S. Department of Education's Office for Civil Rights Dear Colleague letter online at the following URL:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.html

I have also posted a copy of the letter below:



Dear Colleague Letter

THE ASSISTANT SECRETARY

April 24, 2013
Dear Colleague:

The Office for Civil Rights (OCR) in the United States Department of Education (Department) is responsible for enforcing Federal civil rights laws that prohibit discrimination based on race, color, national origin, sex, disability, or age by recipients of Federal financial assistance (recipient(s)) from the Department.Although a significant portion of the complaints filed with OCR in recent years have included retaliation claims, OCR has never before issued public guidance on this important subject. The purpose of this letter is to remind school districts, postsecondary institutions, and other recipients that retaliation is also a violation of Federal law.2 This letter seeks to clarify the basic principles of retaliation law and to describe OCR’s methods of enforcement.

The ability of individuals to oppose discriminatory practices, and to participate in OCR investigations and other proceedings, is critical to ensuring equal educational opportunity in accordance with Federal civil rights laws. Discriminatory practices are often only raised and remedied when students, parents, teachers, coaches, and others can report such practices to school administrators without the fear of retaliation. Individuals should be commended when they raise concerns about compliance with the Federal civil rights laws, not punished for doing so.

The Federal civil rights laws make it unlawful to retaliate against an individual for the purpose of interfering with any right or privilege secured by these laws.3 If, for example, an individual brings concerns about possible civil rights problems to a school’s attention, it is unlawful for the school to retaliate against that individual for doing so. It is also unlawful to retaliate against an individual because he or she made a complaint, testified, or participated in any manner in an OCR investigation or proceeding. Thus, once a student, parent, teacher, coach, or other individual complains formally or informally to a school about a potential civil rights violation or participates in an OCR investigation or proceeding, the recipient is prohibited from retaliating (including intimidating, threatening, coercing, or in any way discriminating against the individual) because of the individual’s complaint or participation. OCR will continue to vigorously enforce this prohibition against retaliation.

If OCR finds that a recipient retaliated in violation of the civil rights laws, OCR will seek the recipient’s voluntary commitments through a resolution agreement to take specific measures to remedy the identified noncompliance.4 Such a resolution agreement must be designed both to ensure that the individual who was retaliated against receives redress and to ensure that the recipient complies with the prohibition against retaliation in the future. OCR will determine which remedies, including monetary relief, are appropriate based on the facts presented in each specific case.

Steps OCR could require a recipient to take to ensure compliance in the future include, but are not limited to:
  • training for employees about the prohibition against retaliation and ways to avoid engaging in retaliation;
  • adopting a communications strategy for ensuring that information concerning retaliation is continually being conveyed to employees, which may include incorporating the prohibition against retaliation into relevant policies and procedures; and
  • implementing a public outreach strategy to reassure the public that the recipient is committed to complying with the prohibition against retaliation.
If OCR finds that a recipient engaged in retaliation and the recipient refuses to voluntarily resolve the identified area(s) of noncompliance or fails to live up to its commitments in a resolution agreement, OCR will take appropriate enforcement action. The enforcement actions available to OCR include initiating administrative proceedings to suspend, terminate, or refuse to grant or continue financial assistance made available through the Department to the recipient; or referring the case to the U.S. Department of Justice for judicial proceedings.5

OCR is available to provide technical assistance to entities that request assistance in complying with the prohibition against retaliation or any other aspect of the civil rights laws OCR enforces. Please visit http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm to contact the OCR regional office that serves your state or territory.

Thank you for your help in ensuring that America’s educational institutions are free from retaliation so that concerns about equal educational opportunity can be openly raised and addressed.


                                    Sincerely,

                                      /s/

                                    Seth M. Galanter
                                    Acting Assistant Secretary for Civil Rights



1 OCR enforces Title VI of the Civil Rights Act of 1964 (Title VI), Title IX of the Education Amendments of 1972 (Title IX), Section 504 of the Rehabilitation Act of 1973 (Section 504), the Age Discrimination Act of 1975 (Age Act), and the Boy Scouts of America Equal Access Act (Boy Scouts Act). OCR also shares enforcement responsibilities with the Department of Justice for Title II of the Americans with Disabilities Act of 1990 (Title II), which prohibits discrimination against individuals with disabilities in state and local government services, programs and activities, regardless of whether they receive Federal financial assistance.

2 The Federal courts have repeatedly affirmed that retaliation is a violation of the Federal civil rights laws enforced by OCR. See, e.g.Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005); Peters v. Jenney, 327 F.3d 307, 320-21 (4th Cir. 2003); Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002).

3 See 34 C.F.R. § 100.7(e) (Title VI); 34 C.F.R. § 106.71 (Title IX) (incorporating 34 C.F.R. §100.7(e) by reference); 34 C.F.R. § 104.61 (Section 504) (incorporating 34 C.F.R. §100.7(e) by reference); and 34 C.F.R. §108.9 (Boy Scouts Act) (incorporating 34 C.F.R. §100.7(e) by reference). Title II and the Age Act have similar regulatory language. See 28 C.F.R. § 35.134 (Title II); and 34 C.F.R. § 110.34 (Age Act).

4 See OCR’s Case Processing Manual for more information about resolution agreements, available at http://www.ed.gov/ocr/docs/ocrcpm.html.

5 See 34 C.F.R. § 100.8.