OCR Complaints – Trends and Predictions

The U.S. Department of Education’s Office for Civil Rights (OCR) recently issued two reports highlighting its work during both fiscal year (FY) 2016 and President Obama’s entire eight-year term of office. The number of OCR complaints filed during FY 2016 skyrocketed to the highest level in OCR history — 16,720, up from a total of 10,392 in 2015. This represents a 61% increase in just one year’s time. Extending our view over the past ten years (FY 2006-2016), OCR complaints increased approximately 188%. However, a deeper dive into the numbers is necessary to understand the complete picture.

OCR’s 16-page global report entitled Achieving Simple Justice: Office for Civil Rights Highlight of Activities 2009-2016 charts the number of complaints filed over the span of President Obama’s term of office (Figure 1 at p. 2). As is common practice, the report also charts the decline in the number of full-time OCR staff positions (Figure 9 at p. 15): 

OCR’s 44-page 2016 annual report entitled Securing Equal Educational Opportunity: A Report to the President and Secretary of Education, provides an in depth analysis of OCR’s investigation and enforcement actions over the past year. A comparison between FY 2016 and FY 2015 shows the sharp increase in complaints filed alleging discrimination on the basis of sex:

Why such a sharp increase? During FY 2016, a total of 6,157 complaints were filed by one individual complainant alleging discrimination in schools’ athletic programs. If we remove these complaints from the mix, the total number of complaints filed in FY 2016 drops to 10,563, a mere 171 more than the year prior.

Although predictions are never easy to make, based on our analysis and experience, we expect that President-elect Donald Trump will take action to curtail the number of OCR complaint investigations undertaken by the agency. With the stroke of a pen, the incoming Trump administration could revise or rescind any of the 34 policy guidance documents issued by the U.S. Department of Education (DOE) during the past eight years. We anticipate that the Rights of Transgender Students guidance document issued jointly with the U.S. Department of Justice on May 13, 2016 is most at risk of quick rescission, in part because it is the subject of pending litigation before a federal district court in Texas v. United States, 7:16-cv-00054 (N.D. Tex. 2016). A more restrained role for OCR is also anticipated given Vice President-elect Mike Pence’s position on local control of education.

History can also be our guide. Between President Bill Clinton’s final year in office and President George W. Bush’s first year in office, the number of complaints investigated by OCR declined by 6.6% from 4,897 (FY 2000) to 4,571 (FY 2001). We expect to witness a similar trend between the Obama and Trump administrations in FY 2016 and FY 2017.  

With less than one month to go before the inauguration, we stand ready to help our education clients navigate all aspects of this transition. For the time being, stay the course and remain focused on the needs of your students. We are grateful to you for reminding us that at the end of the day, this is what matters. Check back for continued updates, tips and guidance.