Candice Jackson, the U.S. Department of Education’s Office for Civil Rights’ Acting Assistant Secretary for Civil Rights, recently provided a “new internal guidance” memorandum to staff that significantly changes the Office for Civil Rights (OCR) protocols for investigating civil rights complaints. Reportedly distributed to her staff on June 8, the memorandum states that effective immediately, “there is no mandate that any one type of complaint is automatically treated differently than any other type of complaint with respect to the scope of the investigation, the type or amount of data needed to conduct the investigation, or the amount or type of review or oversight needed over the investigation by headquarters.” In particular, for complaints involving a school’s handling of sexual violence complaints under Title IX or student discipline matters under Title VI, “OCR will no longer follow the existing investigative rule of obtaining three (3) years of past complaint data/files in order to assess a recipient’s compliance,” but rather each investigative team is charged with determining on a case-by-case basis the comparative data needed to investigate a particular complaint. Acting Assistant Secretary Jackson further clarifies that OCR will only apply a “systemic” or “class action” approach to complaints where the individual complaint alleges systemic or class-wide issues or where the investigative team determines a systemic approach is warranted through its conversations with the complainant. Jackson also states that OCR’s goal is to swiftly address compliance issues raised by individual complaints, reach reasonable resolution agreements directly responsive to addressing the concerns raised in the individual complaint being resolved, and to encourage voluntary settlements whenever possible.
The memorandum makes clear that this guidance applies to all complaints currently in evaluation or investigation, as well as newly-filed complaints. The guidance will thus directly impact those schools, including K-12 schools and higher education institutions, which currently have open investigations regarding the handling of sexual violence complaints under Title IX, as well as the treatment of such investigations going forward. The guidance also directly impacts those schools districts and charter schools with open investigations involving the institutions’ handling of student discipline under Title VI, as well as any such complaints that might be filed in the future.