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The National Federation of the Blind (NFB), NAACP, and the Council of Parent Attorneys and Advocates (COPAA) have filed suit against the Department of Education (DOE) in federal court in Maryland to challenge the DOE Office for Civil Rights’ March 2018 amendments to its Case Processing Manual on the grounds that they were adopted in violation of the Administrative Procedure Act.

Under the revised Case Processing Manual, the Office for Civil Rights (OCR) is required to dismiss complaints against educational institutions when there “is a continuation of a pattern of complaints previously filed with OCR by an individual or group against multiple recipients or a complaint is filed for the first time against multiple recipients that, viewed as a whole, places an unreasonable burden on OCR’s resources.”

This change effectively makes it impossible for complainants to file OCR complaints against multiple educational institutions regardless of their merits, significantly limiting the ability of advocates and not-for-profit groups like the NFB to challenge widespread issues.

In 2009, for instance, the NFB filed complaints with OCR and the Department of Justice against multiple universities that had issued inaccessible Kindle ebook readers to students. The subsequent investigation ultimately resulted in resolution agreements with the universities, as well as the issuance of a “Dear Colleague” letter on the subject.

The amended rules would also seemingly bar organizations like the NFB and NAACP against individual institutions from making future complaints, even when unrelated to those previously filed.

As Level Access reported in late March, the amended rules have already had an effect, with disability rights advocates receiving notifications that their pending complaints, filed prior to the date the amendment went into effect, had been dismissed by OCR.

But, the three organizations’ lawsuit against the DOE doesn’t merely allege that the new policy is bad; the complaint alleges that the DOE violated the Administrative Procedure Act (APA) when adopting it by acting in an arbitrary and capricious manner and by not soliciting public comment before the amendments went into effect.

Under the APA, federal agencies like the DOE must comply with a notice-and-comment requirement before adopting new rules or regulations. Typically, this means the proposed rules must be published in the Federal Register, with a period following during which the public may submit comments.

Here, the DOE did not publish the amendments to the OCR Case Processing Manual in advance; instead, it released the revised manual to the public on the day it went into effect.

The DOE has not yet filed its response to the lawsuit and has declined to discuss the case publicly. It is likely, however, that the DOE’s defense will center on the question of whether the Case Processing Manual arises to the level of rules covered by the APA.

This blog post is for informational purposes only and does not constitute legal advice.