The U.S. Department of Education has signaled a new route for its civil rights investigations of educational institutions. Candice Jackson, the Department’s Office for Civil Rights’ Acting Assistant Secretary for Civil Rights, reportedly provided new internal complaint investigation guidelines to Regional Offices. These new guidelines change course from prior policies mandating that, for certain types of complaints, OCR must conduct broader investigations, request particular types or greater amounts of data from schools, and be subject to additional oversight by the Department’s Headquarters.
Under the previous administration, complaints allegingsexual assault/harassment, transgender discrimination, and racial disparities in student discipline received different scrutiny from OCR. These complaints were previously considered “sensitive cases” that required the Regional Offices to notify Headquarters upon receipt. These sensitive cases also required the Regional Offices to “call home” (contact Headquarters) at various times throughout the investigation. Sometimes, sensitive cases also required the Regional Offices to request voluminous amounts of data from educational institutions. Specifically, a complaint alleging an individual allegation of sexual harassment would often require a systemic investigation of sexual harassment or sexual assault at an educational institution. This systemic investigation would involve the Department requesting three years of sexual harassment investigation files and other data, although there was only one individual allegation of harassment.
Under the new internal guidance, OCR no longer will maintain sensitive case or call home lists. The guidance suggests that, moving forward, Headquarters and the Regional Directors will consult regularly to make investigation decisions on a case-by-case basis as trends emerge that might require oversight or direction from Headquarters. Specifically, the guidance suggests that there is no longer a “one size fits all” approach to the investigation of any category of complaints.
This change in enforcement procedures is likely to assist the agency with the completion of hundreds, if not thousands, of stalled complaints. In the past, many complaints have lingered in limbo as OCR’s staff members reviewed copious amounts of documents and data for the cases previously classified as sensitive. The new reported guidance is retroactive and calls for cases previously needing Headquarters review to be returned to Regional Offices, providing investigative teams with the responsibility for determining the type and scope of evidence needed to conduct complaint investigations.
What this means to you
Colleges and universities should see movement in some of the cases previously classified as sensitive—sexual harassment and assault cases in particular. Additionally, the new guidelines should also allow the investigative teams to process cases more efficiently. Of course, colleges and universities should also find that responding to sexual harassment complaints will be less burdensome without the mandatory three-year lookback. Please keep in mind that, if a complainant alleges class-wide or systemic issues, the investigative team may still determine that broader data requests are necessary. The new guidance also would not change data response or reporting requirements under OCR compliance reviews.