QuoteThe Title VI Coordination Regulations, (as well as the Section 504 coordinating regulation), require that agencies obtain assurances of compliance from prospective recipients. 28 CFR §§ 41.5(a)(2), 42.407(b). Regulations requiring applicants to execute an assurance of compliance as a condition for receiving assistance are valid. Grove City College, supra, 465 U.S. at 574-575 (Title IX assurances); Gardner v. Alabama, 385 F.2d 804 (5th Cir. 1967), cert. denied, 389 U.S. 1046 (1968) (Title VI assurances). If an applicant refuses to sign a required assurance, the agency may deny assistance only after providing notice of the noncompliance, an opportunity for a hearing, and other statutory procedures. 42 U.S.C. § 2000d-1; 28 CFR § 50.3 II.A.1. However, the agency need not prove actual discrimination at the administrative hearing, but only that the applicant refused to sign an assurance of compliance with Title VI (or similar nondiscrimination laws). Grove City College, supra, 465 U.S. at 575. Assurances serve two important purposes: they remind prospective recipients of their nondiscrimination obligations, and they provide a basis for the Federal government to sue to enforce compliance with these statutes. See U.S. v. Marion County School District, 625 F.2d 607, 609, 612-13 (5th Cir.), reh'g denied, 629 F.2d 1350 (5th Cir. 1980), cert. denied, 451 U.S. 910 (1981).

QuoteFederal agencies have broad discretion in determining which recipients and subrecipients to target for compliance reviews. However, this discretion is not unfettered...
Thus, agencies are cautioned that they should not select targets randomly for compliance reviews but, rather, they should base their decisions on neutral criteria or evidence of a violation. A credible complaint can serve as specific evidence of an existing violation.

*Issues raised in a complaint or identified during a complaint investigation that could not be covered within the scope of the complaint investigation;
*Problems identified to the agency by community organizations or advocacy groups that are familiar with actual incidents to support their concerns;
*Problems identified to the agency by other Federal, State, or local civil rights agencies.

QuoteOn March 8, 2001, the plaintiffs filed a motion for partial summary judgment.  In their motion, the plaintiffs argued, inter alia, that they should be permitted to establish discriminatory intent, for purposes of compensatory damages under Section 504, with evidence that the defendants acted with deliberate indifference or conscious disregard of their federally protected rights.

QuoteThe deliberate indifference standard has been applied by the Supreme Court and lower federal courts as a valid method for proving
discriminatory intent under Section 504 and analogous statutes. This standard is appropriate, moreover,  because it incorporates the established principle that an entity acts with discriminatory intent when, despite being aware of discrimination in its programs or activities, it fails to act to address the problem. Accordingly, this Court should allow the plaintiffs to prove discriminatory intent (as the Ninth Circuit requires for compensatory relief under Section 504) by presenting evidence showing that the defendants acted with deliberate indifference to their rights under Section 504.

Quotethe Court recognized that a plaintiff may establish intentional discrimination through proof of "deliberate indifference." 524 U.S. at 290-91. Specifically, the Court explained that a damages remedy may be available to a plaintiff where "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [federal funding] recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails to adequately respond."

Quotethe Tenth Circuit held that, for purposes of compensatory damages under Section 504, "intentional discrimination can be inferred from a defendant's deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights."

QuoteThe Court has held that the only cause of action that exists under these statutes is for intentional discrimination, but in a series of recent cases the Court has developed a framework that broadens the concept of intentional discrimination. Unfortunately, lower courts have focused on older and narrower interpretations of intentional discrimination without accounting for the more complex nuances in recent cases. Thus, lower courts con- tinue to assume that intentional discrimination includes only ac- tions that are motivated by animus or the inappropriate consideration of gender or race...  the Court has also recognized that intentional discrimination occurs when a funding recipient makes a conscious choice that frustrates the congressional objective to eliminate discrimination and inequity in federally funded programs. More specifically, the Court's decisions reveal three factors that are consistently present when the Court has imposed liability under this broader notion of intentional discrimination: whether the defendant made a value choice in regard to the challenged activity or conditions, whether permitting the activity or conditions within a federally funded program would be inconsistent with congressional objectives, and whether the defendant's choice is a cause of the continuance of the activity or condition. However, to permit plaintiffs to establish that any circumstances beyond those in the Court's recent decisions are inconsistent with congressional objectives, federal agencies must provide regulations and guidance that specifically identify those circumstances.

QuoteThe panel rejected the reasoning that (1) a valid IDEA individualized education program, or IEP, satisfies a regulation promulgated under § 504 of the Rehabilitation Act requiring schools to make available to children with disabilities a free appropriate public education; (2) § 504 and Title II are substantially similar statutes; (3) therefore, a valid IDEA IEP also satisfies Title II. The panel held that compliance with the IDEA does not doom all § 504 claims. In addition, there are material differences between § 504 and Title II of the ADA. According deference to the Department of Justice's interpretation of the ADA effective communication regulation, as expressed in an amicus brief, the panel concluded that the ADA requirements regarding students who are deaf or hard-of-hearing are different than those imposed by the IDEA. The panel reversed the grants of summary judgment on the ADA claims in both cases and on a state law claim in one of the cases and remanded for further proceedings consistent with its opinion.

QuoteFinally, K.M.'s deference to and adoption of DOJ's views regarding § 35.160's interaction with the IDEA not only is inconsistent with SmithKline's limits on Auer deference,14 but also improperly stands on an agency's interpretation of a statute outside of its jurisdiction. DOJ's interpretation of § 35.160 constitutes an unauthorized extension of the obligations imposed by the ADA that effectively subsumes and nullifies portions of the IDEA. Specifically, while DOJ is authorized to promulgate regulations for and interpret the ADA (e.g., Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597- 98 (1999)), DOJ has no such authority with regard to the IDEA, for which the U.S. Department of Education is responsible (e.g., D.P. ex rel. E.P. v. School Bd. of Broward Cnty., 483 F.3d 725, 730-31 (11th Cir. 2007)). Because DOJ's position is based on an interpretation of the IDEA, it goes too far and should not have received deference. See Ardestani v. I.N.S., 502 U.S. 129, 148 (1991) (―courts do not owe deference to an agency's interpretation of statutes outside its particular expertise and special charge to administer.‖) (citations omitted); Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 650 (1990) (―it is fundamental  ̳that an agency may not bootstrap itself into an area in which it has no jurisdiction.'‖) (citation omitted).

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Movement from educational experts to legal experts as hearing officers.

Courts should show deference to solidly written decisions by hearing officers. Judiciary lacks special knowledge of educational policies.