Reversing the practice under the Obama Administration, the U.S. Department of Education's Office for Civil Rights (OCR) has just issued new internal guidance changing how regional OCR offices will investigate discrimination complaints against educational institutions. Since the November 2016 elections, institutions have been trying to read the tea leaves regarding OCR's direction in the Trump Administration. In February 2017, the Trump Administration rescinded the "significant guidance" that OCR and the U.S. Department of Justice (DOJ) had issued regarding transgender students in May 2016 under the Obama Administration. In April 2017, Candice Jackson was appointed as Acting Assistant Secretary for OCR, but there has been little difference seen on campuses in the scope or tenor of OCR or DOJ investigations.
What is Changing?
Jackson's new guidance may signal the first major change in OCR's approach to investigations. Under the prior administration, OCR would frequently assign complaints to different classifications, demand at least three years of historical records in certain types of cases, conduct a systemic review of the institution's compliance efforts and require that local offices check in frequently with OCR's headquarters in Washington, D.C. to receive direction on the investigation. The new internal guidance expressly rejects that approach: "[e]ffective 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." Instead, the focus is on empowering regional "investigative staff to clear case backlogs and resolve complaints within a reasonable time-frame, thus providing effective resolution and justice to complainants and [institutions]."
Specific changes include:
- cases will no longer uniformly be classified as "sensitive" or "call home"
- the scope of investigations will be determined by regional investigative teams on a case-by-case basis, depending on the allegations of each complaint
- no requirement to automatically gather at least three years of past compliance data
- systemic or class-action approaches are warranted only where the allegations raise such issues and the regional investigative team approves
How Will This Impact Educational Institutions?
OCR's internal guidance on investigations is most clearly aimed at sexual misconduct complaints, in which OCR was routinely requesting from institutions all of their case files for three years or more, as well as more than 25 other categories of data. Coupled with a broad systemic or class-action approach, the resulting investigations would span for years. Similar trends were also evident in race, certain types of disability cases and other discrimination cases.
OCR's new directive could encourage regional offices to work more cooperatively with institutions in defining reasonable limits to the scope of investigations. Investigations should be narrowly tailored to the specific allegations at issue. Further, the greater discretion given to regional offices should result in more opportunities to resolve complaints in much shorter time periods.
In sum, OCR's new guidance could signal a significant change in approach to the investigation of complaints and may promote the resolution of complaints more efficiently for all involved.