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Resolving Complaints through OCR(The following posts were culled from the DSSHE-L archives. Some editing has been done to consolidate space and exclude extraneous remarks, but no changes have been made the to content shown. Not all posts on a given subject are necessarily included here. Information about the date(s) of appearance and subject headings are provided for those who wish to return to the full archives to research this issue in more detail.) SPECIAL NOTE: The following thread was posted over an 8 day period in early August, 1998. It concludes with an excellent review of the options available to the Office for Civil Rights (OCR) -- and thus to colleges/universities/persons with disabilities in resolving complaints under Section 504/ADA. After reading the information presented here, the reader may have a better understanding of the underlying principles demonstrated in the Letters of Findings (LOFs) posted elsewhere on this website that were issued by the Office for Civil Rights in resolution of complaints filed against institutions of higher education. ********************************************************** Date: Thu, 13 Aug 1998 I know we have at least one OCR person on the list so perhaps Tim and any others that are out there can help me with this. While at the AHEAD conference I had a chance to talk with a handful of colleagues about OCR complaints they had recently gone through or were going through. They reported some similar experiences. In the process of negotiating a solution to a violation the universities proposed a variety of solutions many of which were acceptable practice that had withstood complaints at other campuses. OCR would reject these offers until the university offered the solution desired by the complainant. In one instance where I didn't even believe there was a violation, the official from OCR spoke of the need to "get something for the complainant." When the universities balked at providing the solution favored by the complainant the negotiations would be restarted by the OCR official saying something like "you don't want us to come down there and do a site visit." Eventually the desired outcome could be extorted... too strong... let's say extracted from the institution. Is there a policy or practice at OCR to favor the complainant's desired outcome over an outcome that would simply put the university in compliance? If not a policy or practice are officials evaluated on the basis of the number of outcomes they get that are consistent with what the complainant wants? Best George (Sam) Goodin ********************************************************** Date: Thu, 13 Aug 1998 At 10:15 AM 8/13/98 -0400, you wrote: I feel a need to respond to Sam's statements. One other thing he said was that OCR posed a site visit as a sort of threat. Based on our experience, I would welcome a site visit. This allowed us to show the OCR investigators that the complainant was way off base on the majority of allegations. By seeing our documentation, how we operate and interact with students, and the site and facility constraints we have, OCR was much more willing to further discuss possibilities. We've had other complaints that have resulted in site visits, such as from OFCCP and various granting agencies. (When you're as big as we are, complaints are to be expected; someone is always unhappy about something.) I can't think of a single instance where a site visit was a negative, even when it showed that we erred. We've also been working under an unwritten policy of sticking to our guns - not accepting a settlement that is inconsistent with previous settlements or acceptable practices. When we get a complaint, we do our own internal investigation, so we are better prepared to respond to the investigating agency. Maybe we've been blessed with better relations with our OCR office. I like Tim's suggestion at AHEAD - get an OCR attorney to talk with your attorney. The attorney-to-attorney communication has been beneficial for us. Marcia ********************************************************** Date: Thu, 13 Aug 1998 Wow, Sam! Have you wadded into some hot waters. I too spoke with a colleague who felt that her recent experience with OCR was biased in favor of the student. Almost as though OCR were looking to find something wrong. If rewards are based upon finding for the complainant then there seems to me to be a conflict of interest. Scott Laurent ********************************************************** Date: Thu, 13 Aug 1998 Adding to Marcia's response to Sam's statements: When I was DS director at University of Colorado at Boulder, we, the DS office, found that taking a proactive stance with OCR worked well. We made a point of inviting our region's OCR attorneys and officials to campus for a meeting about once every 1-2 years. We did this in the spirit of (1) this is our philosophy of providing services (2) this is what we are doing (how applying the philosophy); (3) these are some areas where we foresee some possible future problems--what is your proactive advice on how to handle them before we get a complaint? (4) what else should we be doing that we aren't doing now? and (5) what are the present trends in OCR complaints and resolutions and how might we address these on our campus? Such meetings seemed to be extremely helpful to all of us and served to update us on any changes in philosophy with regional OCR officials. We always invited the ADA Coordinator, university attorneys, and other VIP's--amazing how many of the university grand pooh-bahs could suddenly clear their schedule for this meeting! Did such meetings essentially put the brakes on OCR complaints on our campus? It's difficult to tell, but probably not. However, all of us gleaned an updated understanding of our respective obligations and responsibilities (and rights) within the spirit of the law. I can guarantee that it is much more pleasant to talk with OCR in situations where there is NOT a complaint than it is when there is one! Oh, and be sure to have good coffee and rolls to serve for such a meeting! This post and my experiences certainly do not solve Sam's and Scott's immediate and valid concerns. Rather, my purpose is to propose an additional and alternative way of working with OCR. I really urge other institutions to try it. ********************************************************** Date: Fri, 14 Aug 1998 I guess it should not surprise me that most of the postings on this topic have been sent to me privately and not the list. I asked one such poster if I could share her post anonymously. She said yes and it appears below. I would still like to hear from OCR on the question of whether there is a policy or practice of negotiating for the complainant's desired outcome or if the focus is just to get a solution that brings the institution into compliance? Tim if your out there could you give us the real answer rather than my anecdotal information? I suspect part of of what you are seeing is akin to "docket management". Bringing a disability complaint to OCR isn't as popular as suing your doctor yet, but the trend is in that direction. If you don't throw the complainant a bone then the matter drags past the Early Complaint Resolution stage and takes up a pile of time. So, if you can coax the institution into a settlement, you do. Of course, being on the receiving end, I don't like it. We have given in on matters that we think we are right about because the issue just wasn't important enough to incur the costs of retaining outside counsel and perhaps having to appeal an OCR decision through the courts (very expensive). There ARE matters where we will go to the wall, but we pick our battles. I think those that write of either their frequent contacts with OCR, or of their fear of an OCR investigation are both overstating their case. The people that come touring when there is no active complaint ain't the people that are going to decide whether to "go deep" on you when a significant complaint comes in, so I don't think you gain that much by having lunch with the technical assistance staff at your local OCR. We also don't make decisions based on whether we think it will help avoid a threatened complaint to OCR. We just can't be changing practice or policy every time someone threatens to sue us, complain to OCR, DOJ, whatever. It happens too often. ********************************************************** Date: Thu, 20 Aug 1998 Just got off a conference call with Tim Spofford and Eileen Hanrahan regarding the OCR thread. It is now clear to me where one might get the impression that OCR is operating as a client advocate rather than law enforcement agency. Unfortunately it seems to stem from procedures that are designed to avoid a full-scale investigating. I suspect there are a great number of instances where all parties would like to avoid a full scale investigation. However it is going to be difficult for recipients to not feel as though the full-scale investigation is the stick being used to enforce the will of the complainant. This will be particularly true if complainant may have been harmed by the recipient's failure to comply. Tim plans to describe the process in more detail in a post he is writing, then we are going to clone him so every regional office an have a Tim. Seriously I would like to see more DSS folks working for OCR. I would love to see Randy Borst and Jim Marks bring their wealth of experience to OCR... though not the same office... or even the same region. Best George (Sam) Goodin ********************************************************** Date: Fri, 21 Aug 1998 Last week, Sam Goodin wrote a message to the list about some perceptions of OCR practices, and a message that some apparently feel is conveyed by OCR staff during the case resolution process. Eileen Hanrahan, one of our OCR Headquarters lawyers and national co-coordinator of our internal Disability Network, and I (a staff lawyer in the Seattle office), had a lengthy, constructive, phone call with Sam on Thursday about the issues he raised in his DSSHE-L message. The three of us agreed that it might be useful if I were to post a message further explaining relevant OCR resolution procedures relative to Sam's concerns. These are the same procedures I spoke about on the panel that I shared in Las Vegas with Sam, Karen Pettus, and others, but not everyone was there and in any event, the thread that Sam started suggests that maybe I wasn't as clear as I might have been. Here's what Sam wrote: >>While at the AHEAD conference I had a chance to talk with a handful of colleagues about OCR complaints they had recently gone through or were going through. They reported some similar experiences. In the process of negotiating a solution to a violation the universities proposed a variety of solutions many of which were acceptable practice that had withstood complaints at other campuses. OCR would reject these offers until the university offered the solution desired by the complainant. In one instance where I didn't even believe there was a violation, the official from OCR spoke of the need to "get something for the complainant." When the universities balked at providing the solution favored by the complainant the negotiations would be restarted by the OCR official saying something like "you don't want us to come down there and do a site visit." Eventually the desired outcome could be extorted... too strong... let's say extracted from the institution. Is there a policy or practice at OCR to favor the complainant's desired outcome over an outcome that would simply put the university in compliance? If not a policy or practice are officials evaluated on the basis of the number of outcomes they get that are consistent with what the complainant wants? I'd like to thank Tim for posting this message. We are not within the Seattle area so this is not kissing up! I replied to Sam in a private message that OCR, and other alphabet agencies such as EEOC, get it from the complainants' side too. I participate in another list where complainants are often quite bitter about the way they were treated by EEOC and OCR. They are quite sure that these agencies are on the side of the businesses (or universities). So it's all a matter of perception and which side you are on. ********************************************************** NOTE: (This thread was culled from the archives by Jane E. Jarrow, JaneJarrow@aol.com ********************************************************** |
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