Saturday, April 28, 2018
As Justice Robert Jackson once said to his law clerk, "But what does it all mean?"
WASHINGTON — The Education Department’s Office for Civil Rights has begun dismissing hundreds of civil rights complaints under a new protocol that allows investigators to disregard cases that are part of serial filings or that they consider burdensome to the office.
Department officials said the new policy targeted advocates who flooded the office with thousands of complaints for similar violations, jamming its investigation pipeline with cases that could be resolved without exhausting staff and resources. But civil rights advocates worry that the office’s rejection of legitimate claims is the most obvious example to date of its diminishing role in enforcing civil rights laws in the nation’s schools.
Liz Hill, a spokeswoman for the Education Department, said the new provision was part of the office’s revision of its manual that lays out procedures for processing civil rights cases.
The goal of the new manual, which took effect last month, is to help the office better manage its docket, investigations and resolutions, she said.
Among the changes implemented immediately is a provision that allows the Office for Civil Rights to dismiss cases that reflect “a pattern of complaints previously filed with O.C.R. by an individual or a group against multiple recipients,” or complaints “filed for the first time against multiple recipients that” place “an unreasonable burden on O.C.R.’s resources.”
So far, the provision has resulted in the dismissal of more than 500 disability rights complaints.
Catherine E. Lhamon, who led the Office for Civil Rights under the Obama administration, said the new provision undermined the mission of the office. Unlike the Justice Department, the Education Department cannot pick and choose the cases it pursues. If the office has evidence that the law has been violated, it must open a case.
“The thing that scares me is when they get to say ‘we won’t open some cases because it’s too much for us,’ or ‘we don’t like the complainant,’ or ‘it’s not our week to work on that,’ you start to change the character of the office,” Ms. Lhamon said.
But Debora L. Osgood, a lawyer who worked for 25 years at the Office for Civil Rights and now consults with and represents schools on civil rights matters, praised the change.
She said the provision showed that the agency was “essentially taking the reins back for control of its complaint docket.”
Ms. Osgood said that in her experience, one person could clog the pipeline in each of the agency’s 12 regional offices, limiting investigators’ ability to respond to other complaints. It often frustrated investigators who prided themselves on being able to resolve complaints promptly, she said.
“In effect, it turned over the decision-making about how the agency would use many of its resources to a single individual, rather than to agency officials and staff charged with the responsibility for implementing the agency’s stated mission,” she said.
According to the Education Department, 41 percent of the 16,720 complaints filed in the 2016 fiscal year came from three people. The next year, of the 12,837 total cases, 23 percent of them did.
The department calls the complainants “frequent fliers.”
Marcie Lipsitt is proud to be one of them.
In the last two years, Ms. Lipsitt, a disability rights advocate in Michigan, has filed more than 2,400 complaints with the office against schools, departments of education, colleges and universities, libraries and other educational institutions across the country that have websites that people who are deaf or blind or who struggle with fine motor skills cannot navigate.
“No one even knew about this issue until I started filing,” Ms. Lipsitt said. “I didn’t want to get anybody in trouble. I just wanted to raise awareness.”
She has secured more than 1,000 agreements with institutions that committed to bringing their websites into compliance with the Rehabilitation Act of 1973, which prohibits discrimination against people with disabilities and requires that electronic and information technologies be accessible to them.
In recent weeks, Ms. Lipsitt said, she has received notice that more than 500 cases, including active and open investigations, were dismissed. Each letter cited the new provision as the reason. The department will instead work with colleges on complying with web accessibility laws.
“But I won’t stop,” Ms. Lipsitt vowed, “because if I do, the story goes away.”
The new manual also eliminates an appeals process for Office for Civil Rights decisions — department officials said it usually resulted in the same outcome — and says complaints can no longer be filed on the basis of journal articles and news media reports.
The manual also drops all mention of investigators’ looking into “systemic issues.” However, the department said that the new provision would not apply to class-action-like complaints filed by groups.
The changes worry civil rights groups, which point out that Education Secretary Betsy DeVos has already rescinded guidances meant to protect students against sexual assaults on campuses and black and transgender students against bias.
Neena Chaudhry, associate general counsel and senior adviser of education at the National Women’s Law Center, said that by filing dozens of complaints in recent decades, the group has been able to secure equal scholarship money and increased sports opportunities for female athletes. Now, as the organization shifts its focus to sexual assault, the department may prove less responsive.
Rachel M. Kleinman, senior counsel at the NAACP Legal Defense Fund, said that the new manual was “yet another avenue for O.C.R. to not seriously investigate systemic race discrimination.”
The group has filed complaints on behalf of large groups of black students it believes were being disproportionately affected by law enforcement policies. Already, one case has been closed by the DeVos administration, and the department declined to conduct a broader analysis.
“They seem to be closing all of the pathways for students to have their rights enforced by the federal government,” Ms. Kleinman said.
Ms. DeVos’s Office for Civil Rights has maintained that it wants to be more efficient and effective than it was under the Obama administration, which was known for its aggressive enforcement and broad investigations but was also accused of being overzealous and leaving cases languishing for years.
Ms. Osgood said such changes would be welcomed by the colleges and universities that she assists with federal civil rights investigations.
She said the changes showed that the department was willing to work with schools in a “more reasonable, more nimble and more expeditious manner.”
The department did not say how its investigators would determine that a case would place an “unreasonable burden” on its resources. However, just weeks after the new manual took effect, Congress allocated $8.5 million more in funding to the Office for Civil Rights, which Ms. DeVos had sought to cut, in order for the office to manage its caseload.
Ms. Lhamon said that, in her time in the office, she sought out ways to manage large volumes of cases that stemmed from one complainant, and she acknowledged that her office struggled with timely responses. But she said she could not come up with any measure that would not shortchange an investigation.
“There’s not a limitation on justice, and there’s not a limitation on how we perceive injustice,” Ms. Lhamon said. “To say you’ve reached your quota is to say that there’s somehow a cap on the number of children who might be harmed.”
Department of Granting Variances? City Lacks Respect for Independent Administrative-Judicial hearings
In the midst of devious developers' demolition derby, after the demolitions of Don Pedro Fornells House, Echo House and Carpenter's House,
after the outsize influence shown by rubber-stamp approval of outrageous, oversize hotels and other abominations,
here's the City of St. Augustine's stunning admission of its custom, practice and procedure of pro-developer favoritism:
"The role of the PZB is to grant zoning exceptions and variances as provided in the zoning code ordinances, hear appeals of any decision of the Planning and Building Department and recommend to the City Commission the rezoning of land or changes to the Comprehensive Plan." (St. Augustine City website).
These are truly "UnAmerican Activities." Enough.
Note to citizens:
Purpose is to "grant." This suggests rubber-stamping, not bona fide quasi-judicial hearings.
Ipse dixit. They can't fix it. City Hall staff must stop trying to boss and bully our boards, who serve as the conscience of our community.
See and compare the Role of Planning and Zoning Board: Florida Planning Officials Handbook (2015):
Florida Resilient Communities Initiative University of Florida
Florida Planning Officials Handbook
Planning Officials Are Elected or Ap- pointed Citizens Involved in the Plan- ning Process
The term "Planning Officials" was created by the American Planning Association to include a wide range of citizen participants in planning who have specific roles. City and County Commissioners are elected officials who serve on the governing bodies of local government. In Florida, these elected offi- cials play a significant role in planning and growth management. They are the final authority for the adoption of a community’s comprehensive plan, the enactment of its land development regulations and the approval of major development applica- tions. City and County Commissions also typically appoint the officials who serve on the planning commissions and other boards of their community.
Planning Commissioners are appointed to serve on local planning commissions. Planning commission- ers are the keepers of the Comprehensive Plan. They initiate and guide long-range planning ef- forts, conduct public meetings and hearings on proposed plans and projects, review development proposals for conformance with local plans and de- velopment regulations, and develop new planning programs.
Zoning Board members are appointed to serve on boards that review development applications. Zon- ing boards normally make recommendations to the local governing body regarding rezonings and oth- er development approvals but may serve as the final approval authority for some actions pre- scribed by the local regulations. Planning commis- sions may serve as a zoning board to perform this function in many communities.
Board of Adjustment members are appointed, vol- unteer officials who serve on a board that hears appeals or requests for variances and conditional use approvals, all zoning and land use matters. The work of the board is generally limited to re- view of applications for conditional use permits, variances, and other appeals. In some communi- ties, the functions of a planning board and a zon- ing board of appeals are performed by a joint plan- ning and zoning commission.
The Work of the Planning Commission
The Planning Commission's goal is to make the comprehensive plan work. The Planning Commis- sion’s first responsibility is to recommend a com- prehensive plan that reflects the vision and values of the community. The planning commission is a lay body that in many ways speaks for the com- munity. These volunteer citizens give their time, energy, and intelligence to evaluating their com- munity and its future, and advise the elected offi- cials about future directions.
The Planning Commissions second goal is to move the plan from vision to reality. To do this, the planning commission must examine each issue and every application and ask the question, "Does this proposal further the goals and objectives of the comprehensive plan?” If so, the proposal conforms to the public interest as expressed in the plan and should normally be approved. If not, the proposal runs contrary to the public interest as expressed in the plan and should normally be rejected. All of this seems straightforward enough, but in practice things are much more complex. The comprehen- sive plan, for example, while offering guidance and showing direction, will not often provide automatic answers.
In addition to ensuring that the decisions of the planning commission conform to the comprehen- sive plan, it is also the duty of planning commis- sion members to ensure that the plan is kept up to date. As technology changes, for example, what is practical or possible in the plan will also change. Further, as a community evolves, so too will the goals and objectives of its citizenry. New ideas will be introduced. Existing land uses will change. It may become evident that aspects of the plan are no longer relevant. For all of these reasons and more, a key task of the planning commission is to make certain that the plan is current and, if not, that the plan be updated and amended.
Evaluating and amending the plan should be a reg- ular part of the planning commission's annual agenda. At least once per year, the commission should schedule time to review the existing plan and then develop any changes as required. This
will ensure that the plan remains an accurate re- flection of community values and will also serve to reinforce the importance of the plan to the mem- bers of the planning commission itself.
The Work of the Zoning Board
The “Zoning Board” reviews development applica- tions and makes recommendations to the local governing authority. The “zoning board” reviews development applications for consistency with the comprehensive plan, compliance with the land de- velopment regulations of the community and ad- herence to accepted planning practices and princi- ples. The development review process normally involves an analysis and recommendation by an appointed body before a final decision is made by the local governing body. The procedures that guide this review are prescribed by the communi- ty’s land development code and typically involve rezonings, subdivision review, site plan review and other processes.
A community may not have a “zoning board” but the review function described above does exist by one name or another within the planning structure. Often a planning commission will perform this role. In other communities, a hearing officer may be used. Regardless of where the responsibility is as- signed, it is an essential function and one that typ- ically involves the planning officials’ most active and direct involvement in community issues.
The Work of the Board of Adjustment
Communities have “boards of appeal” or “boards of zoning adjustment”. For convenience, the term “board of adjustment” is used. The moment a land development code is adopted, the work of the board of adjustment begins. As the name implies, the focus of the board’s work is zoning code relat- ed appeals, but just as with the planning commis- sion and zoning board, a second goal of the board of adjustment is to implement the comprehensive plan, or to at least assure that its decisions don't violate the comprehensive plan.
The “board of adjustment” is charged with a com- plex set of duties that typically include:
I agree with Justice Neil M. Gorsuch and the Supreme Court majority. And I never liked "Chevron deference" to federal agencies' often-wrong interpretation of ambiguous laws. Too much of Administrative Law is "Bad Law," as we called it in Memphis.
Good work by Palm Beach County State's Attorney Dave Aronberg.
Wish we had a competent State's Attorney here in the Seventh Judicial District, covering four counties, including corrupt St. Johns County.
Wish we had a competent State's Attorney here in the Seventh Judicial District, covering four counties, including corrupt St. Johns County.
Gov. Scott Suspends Boca Raton Mayor Susan Haynie
Dana Milbank nails it. Speaker of the House of Representatives Paul Ryan fired the House Chaplain, a Jesuit priest, Fr. Patrick Conroy, S.J. for praying for poor people -- retaliation against First Amendment protected activity.