While the guidance may not change how OCR resolves cases involving systemic concerns, many schools may reasonably expect faster resolution of individual or isolated complaints.
The Chronicle of Higher Education recently reported that, on June 8, 2017, the Department of Education’s Office for Civil Rights (OCR) distributed an internal memo containing new guidance that will provide regional offices with discretion to significantly scale back the scope of OCR investigations for all types of cases, including sexual violence complaints. The memo notes that “[t]here is no longer a ‘one size fits all’ approach to the investigation of any category of complaints.”
Most notably, OCR will no longer routinely require schools to provide three years of past complaint data/files to assess a school’s compliance. Instead, the OCR investigative team for each case will decide the type and amount of comparative data necessary to support its investigation, with the understanding that investigations are “to be framed in their scope by the allegations of each particular complaint.”
This approach departs from OCR’s historically comprehensive investigations under the Obama administration, where an individual report of sexual violence or harassment often led to a more expansive review of a school’s policies, procedures and handling of past sexual violence cases to evaluate a potential pattern of alleged discrimination or harassment. Now, OCR will use that broader approach only in cases alleging systemic or classwide issues or when the investigative team determines that such an approach is necessary to resolve a particular complaint.
The memo, which was sent by Candice Jackson, OCR’s Acting Assistant Secretary for Civil Rights, to all OCR regional directors, also gives the regional offices more autonomy. Rather than routinely review investigations, department headquarters will consult regularly with regional directors on a case-by-case basis to determine whether oversight is needed, and only for cases involving complex investigations or emerging trends. Otherwise, cases will be adjudicated at the regional level.
This new guidance is effective immediately and applies not only to newly filed complaints but also to complaints that OCR is currently evaluating. Thus, while the guidance may not change how OCR resolves cases involving systemic concerns, many schools may reasonably expect faster resolution of individual or isolated complaints. Indeed, the memo emphasizes that these changes are designed to enable resolutions in reasonable timeframes and to clear OCR case backlogs, which, in the Title IX realm, most recently stand at 337 open investigations. The general tenor of the memo and the increased flexibility for regional offices also signal that OCR may be more amenable to early resolution of complaints under the Case Processing Manual section 302 process, even in cases involving allegations of sexual violence.