OCR Complaints Show Pandemic’s Effects

The Education Department’s Office for Civil Rights has ramped up investigations in the last year as more individuals and organizations have filed complaints about disability, sex or pregnancy discrimination; campus antisemitism; and programs or scholarships available to only one gender or minority group, among other allegations.

The office received 18,804 complaints—a record—during the last fiscal year, from Oct. 1, 2021, to Sept. 30, 2022, about discrimination in K-12 and higher education, according to data provided by the Education Department. The previous record was set in fiscal year 2016, when the agency received more than 16,700 complaints. Many of the complaints involved disabilities.

The department did not provide more information about the complaints, including how many related to higher education, and it declined to comment further on the numbers. Instead, a spokesman referred Inside Higher Ed to Assistant Secretary for Civil Rights Catherine Lhamon’s comments to The New York Times, which first reported on the increase with a focus on the K-12 complaints.

“It reflects the confidence in the Office for Civil Rights as a place to seek redress,” Lhamon told the paper. “At the same time, the scope and volume of harm that we’re asking our babies to navigate is astronomical.”

Lhamon led the Office for Civil Rights during the second term of the Obama administration and returned to the same role in October 2021. Biden administration officials have reversed many of the Trump-era changes to the office’s operations and worked to boost staffing levels, which fell under Trump.

Tracey E. Vitchers, executive director of It’s On Us, said the increase in complaints shows that students have trust in the Biden administration to respond to their allegations. Addressing the changes at OCR under former president Trump was one of President Biden’s campaign promises, she said.

“We’ve really seen the Biden administration live up to that campaign promise in working to get—not just the department holistically—but also the Office for Civil Rights back up to speed,” she said. “Student civil rights need to be upheld, and you need staff to help uphold them.”

The Biden administration requested $30 million more for the agency during the last budget cycle and planned to add 92 full-time employees. Congress ended up appropriating $4.5 million, bringing the office’s budget to $140 million. The office said in its annual report that addressing the rising number of complaints will be a challenge for OCR.

Vitchers said Lhamon has brought back a number of Obama-era practices to provide more transparency into OCR’s investigations. That includes publishing more information about case resolutions and open investigations.

“That transparency is important, because students have a right to know if their school has been found by the Department of Education Office for Civil Rights for violating their peers’ civil rights,” she said.

The Office for Civil Rights doesn’t make complaints public or comment on pending investigations, but it does keep a public list of open investigations. Opening an investigation doesn’t mean that OCR finds the complaint credible, just that it met the few jurisdictional requirements. The office’s jurisdiction includes federally funded education programs or activities.

Most of the office’s work is driven by the complaints, but the agency can open investigations on its own and use other tools to bring attention to its priorities. Recently, the office has made it clear, through guidance and case resolutions, that pregnancy discrimination will be a focus, said Howard Kellam, a former regional attorney at OCR and current consultant.

The department resolved an investigation last month into pregnancy discrimination at Troy University in Alabama. Investigators found that the university didn’t have clear policies on how to accommodate a student’s pregnancy. Troy University agreed to provide faculty and staff with training on the rights of pregnant students. OCR resolved at least two other similar investigations in 2022 at Salt Lake Community College and Bryant & Stratton College.

Nearly half of the 890 higher ed–related investigations opened in 2022 and still pending by the end of the year were in response to disability discrimination complaints. About one-third of the investigations related to discrimination under Title IX of the Education Amendments of 1972, while cases related to discrimination under Title VI of the Civil Rights Act of 1964 comprise about a quarter. Title IX protects students from sex or gender discrimination, while Title VI protects students from discrimination based on race, color or national origin.

Those Title VI complaints include a number that allege antisemitic harassment and discrimination, reflecting the recent rise in campus antisemitism.

Kenneth Marcus, who led the Office for Civil Rights during the Trump administration and founded the Louis D. Brandeis Center for Human Rights Under Law, has filed several of those complaints on behalf of students.

Marcus said the change in administrations is not the whole story behind the increase in complaints, adding that he heard from conservative groups during his tenure that they were more likely to file complaints during Republican administrations.

“Since there are more progressives than conservatives in this space, the shift could yield a net increase in complaints, including legally dubious charges, when Democrats govern,” he said. “However, this is almost certainly not the whole story. The magnitude of the increase in filings suggests broader social phenomena, which may include the long-term impact of COVID and COVID school closures.”

He added that the COVID pandemic has had a coarsening and polarizing effect on people’s attitudes and worsened social norms.

“I think it has led to a situation in which people are often responding to one another in ways that are less healthy than before COVID,” he said. “Universities have not been responding well to that. I think they’re overwhelmed, to some extent.”

He’s glad to see the Office for Civil Rights opening investigations when warranted, but the challenge, he said, will be to close those cases.

“It’s one thing to open the case, and it’s another thing to figure out what they need to do and then to do it,” he said. “That will be the big question. Now that they’re looking at all these cases, are they going to be able to finish them?

The office resolved at least 70 higher ed investigations in 2022, most of which were about disability discrimination, according to the agency’s resolution database.

Some complainants publicly share their OCR complaints, which along with the public resolution agreements offer a glimpse into the office’s activities during the Biden administration. The office will release more information about the complaints it received and its investigations in its annual report, which will be published in July.

Disability Claims

Jamie Axelrod, the director of disability resources at Northern Arizona University and past president of the Association on Higher Education and Disability, said he isn’t surprised that the Office for Civil Rights would be receiving more complaints, especially disability claims, since the pandemic began.

For many students with disabilities, the pandemic, disruptions in classes and online education highlighted and worsened inequities in their access to higher education, and more students have started to speak out and advocate for their universities to do more to address their varying needs.

Axelrod said students are more likely to raise concerns about an institution’s denial of an accommodation request. Additionally, those requests have become more complex and have involved modifying course-specific policies, which raises more questions about whether the accommodations amount to a fundamental alteration of the course. Federal law doesn’t require institutions to make adjustments that would result in a fundamental alteration of a program or impose an undue burden.

A Florida Gateway Community College student filed a complaint after his college required him to use Honorlock, an online proctoring software, for tests and quizzes during the fall 2020 semester. The software flagged certain behaviors related to his disabilities as cheating, and he failed a quiz. The student made numerous requests to use an alternative option, but was denied, and he ended up withdrawing from the fall semester. OCR found the college failed to “engage in the interactive process to determine reasonable academic adjustments” and violated federal civil rights laws. The college agreed to provide training on federal laws to staff who evaluate students for disability-related accommodation requests.

Typically, disability-based discrimination claims make up the majority of the caseload at the Office for Civil Rights. The office investigates a broad range of disability-based discrimination claims, including allegations that an institution denied students access to programs or services or rejected their accommodation requests. This also includes complaints about the accessibility of education technology. The office has a team devoted to the issue, and several of the resolved cases from 2022 related to technology access for students with disabilities.

The University of Arkansas system agreed to adopt a digital accessibility standard in response to a compliance review that found several possible concerns, including links that weren’t labeled enough to provide access to students with vision disabilities who use screen readers.

In another review, the team found that some parts of Norfolk State University’s website and online programs were not accessible to people with disabilities and worked with the institution to address those problems. Norfolk State agreed to update its digital accessibility testing protocols in response.

The resolution agreements, which the office says are specific to each investigation or review and not a formal statement of policy, can illuminate best practices and show what the office is looking at, Axelrod said. Lately, he’s seen that focus on access to technology.

“Usually, by the time OCR gets to that kind of stuff, it’s been an issue for a while,” he said.

More broadly, he’s seen the office more actively engaged during the Biden administration, which he said was nice to see.

“I think that OCR plays a vital role,” he said. “We talk about investigations, but I think it’s good to note that OCR provides technical assistance to schools. That’s really an invaluable service.”

Title VI Complaints

Several of the investigations opened last year stemmed from complaints that students were subject to antisemitic harassment and discrimination in part because of their support of Israel.

At the University of Vermont, students said they faced online harassment from a teaching assistant who talked about wanting to lower Zionist students’ grades and that a campus group excluded Zionists from participating. The complaint also included allegations that the campus Hillel building was vandalized. The university said last year when the investigation was opened that it looked forward to responding to OCR.

The office opened at least eight investigations last year into national origin discrimination involving religion on college campuses. OCR also has opened a number of Title VI–related investigations into complaints about racial harassment and retaliation, among others.

The Office for Civil Rights is currently investigating complaints filed by the Brandeis Center regarding the University of Vermont, the University of Southern California and Brooklyn College, among others—none of which have been resolved yet. Marcus said he’s not aware of any antisemitism cases involving higher education that have been resolved during the Biden administration.

Jewish college students have reported an increase in campus antisemitism in recent years.

“I would say [it’s] a combination of ideological polarization with political extremes on both sides gaining traction, including through use of newer technologies, together with some of the societal coarseness that’s been worsened by COVID and campus closures,” Marcus said of the increase. “The situation in the Middle East has tended to feed into this with campus protests, cultures sometimes latching on to some of the antisemitic attitudes that have been floating around. At the same time, the extreme right has gained traction, especially through use of social media and websites.”

Although the Office for Civil Rights hasn’t resolved a recent investigation into campus antisemitism, the office has acknowledged the issue in public statements and is planning to update the regulations for Title VI as part of an effort to combat antisemitism.

“OCR doesn’t always express itself with a level of clarity that we might like, but I think that in recent months, it has taken a number of measures to demonstrate to institutions that campus antisemitism remains a significant priority,” Marcus said.

That includes mentioning a “distressing rise in reports of antisemitism on campuses across the country” in a news release and releasing fact sheets on Title VI protections from discrimination, including clarifying how the law protects students who are perceived to be from a particular religious group.