In March 2018, the U.S. Department of Education Office for Civil Rights (“OCR”) issued its updated Case Processing Manual, which contains OCR’s procedure for investigating and resolving complaints filed against higher education institutions.
OCR’s stated mission is to “ensure equal access to education and promote educational excellence throughout the nation through vigorous enforcement of civil rights.” Unfortunately, OCR’s former investigative and resolution processes created an undue burden on colleges and universities, which, all too often, were defending themselves against baseless complaints. In recognition of this burden, and in order to streamline matters and create flexibility with its own caseload, OCR updated the procedures it will follow upon receiving a complaint, which include the following positive changes:
- Upon request, a college or university will receive a copy of the complaint filed against it (which may be redacted for privacy reasons). See Section 110. Although seemingly common sense, before this amendment, a college or university was required to initiate a Freedom of Information Act request to obtain a copy of the complaint and was not guaranteed access to the complaint even though the college or university was required to answer and defend itself against the allegations in the complaint.
- OCR will dismiss certain allegations or the complaint in its entirety in over 20 stated circumstances, see Section 108, as compared to the limited reasons for dismissal contained in the previous manual. Of note, OCR will dismiss an allegation or complaint that is based on the same operative facts filed by the complainant (a) with another civil rights enforcement agency (such as the New York State Department of Human Rights); (b) that is pending in the college’s or university’s internal grievance procedure; or (c) that includes allegations that could have been raised in either of these two forums.
- OCR investigations shall be tailored to the allegations in the complaint. Previously, the filing of a single complaint would often cause the investigation to spiral into a college- or university-wide compliance review.
- OCR’s data collection requests should be tailored to the allegations being investigated, and the college or university shall be provided with an appropriate amount of time to submit the required information. See Section 702(c). Previously, a college or university had 15 days to submit a wide array of data, often unrelated to the allegation contained in the complaint.
- A complainant no longer has the right to appeal OCR’s insufficient evidence determination (with the limited exception for those complainants who received their determination prior to March 5, 2018).
These and other changes to the procedure manual can be reviewed at https://www2.ed.gov/about/offices/list/ocr/ docs/ocrcpm.pdf. These new guidelines apply to all matters (new and pending) as of March 5, 2018.