In a departure from the US Department of Education's March announcement that its Office for Civil Rights would dismiss mass filings of web accessibility complaints, the agency will no longer automatically dismiss such filings based on assumptions about relevance and caseload.
In March, the US Department of Education's Office for Civil Rights (OCR) revised its Case Processing Manual to allow for the automatic dismissal of civil rights complaints that fall within a "continuation of a pattern of complaints previously filed with OCR by an individual or a group against multiple recipients, or a complaint [that] is filed for the first time against multiple recipients that, viewed as a whole, places an unreasonable burden on OCR's resources." EDUCAUSE members should be advised that on Tuesday, November 20, the department changed its Case Processing Manual yet again to eliminate the March revisions. The move represents an effective reversal of OCR's previous decision to dismiss bulk complaints from so-called mass filers.
Perhaps the most well-known mass filer is Marcie Lipsitt, a disability rights advocate who filed thousands of complaints against schools, institutions of higher education, and library systems with websites she alleges aren't accessible to persons with visual or auditory impairments. Lipsitt herself estimates she filed more than 2,400 complaints with the Department of Education over the past two years. Since the department's March procedure change, Lipsitt claims that 671 of her filings were immediately dismissed; however, since the November announcement, OCR has reopened hundreds of those previously eliminated complaints.
While the department defended its March revision noting that it would improve "OCR's management of its docket, investigations, and case resolutions," the change in procedure drew criticism from lawmakers and civil rights advocates alike. Seventeen Democratic senators sent a letter to the agency, blasting the changes as "antithetical" to OCR's mission. However, a lawsuit against the Department by the NAACP, the National Federation of the Blind, and the Council of Parent Attorneys and Advocates likely had the greatest impact on OCR's recent decision to rescind its March action. The suit alleges that the en masse dismissal of mass filings infringes on the rights of students, making the new procedures established this spring unlawful. While the lawsuit is still pending, some speculate that the agency's November reversal stems from an internal reassessment of the prior action's legal viability.
Though OCR will no longer dismiss mass filings on the basis that they could be considered unreasonable and overly burdensome (per OCR's prior characterization), the Case Processing Manual does retain another change made in March that limits broader investigations into individual allegations. This provision directs OCR officials to steer clear of systemic probes absent the presentation of facts providing clear justification for a larger review. So while agency staff may no longer automatically dismiss mass filings, the recent procedure reversal likely will only translate into an increased workload for OCR, as opposed to substantive enforcement shifts for educational institutions. EDUCAUSE will continue to monitor this issue for further developments and inform members of any significant changes.
Kathryn Branson is an associate with Ulman Public Policy.
© 2018 Kathryn Branson. The text of this work is licensed under a Creative Commons BY-NC-ND 4.0 International License.