Higher Ed Law Blog – Making Sense of the Laws and Issues Affecting Higher..
Dennis Cariello is a Shareholder at Hogan Marren, Ltd. and the co-chairman of the firm's education practice. With more than 15 years of experience, and having served at the U.S. Department of Education as Deputy General Counsel. Follow this blog to know about Higher Education Law.
The U.S. Department of Education, Office for Civil Rights (OCR) has unveiled its newly-revamped Case Processing Manual. (Find the Manual here.) The procedural changes in the new Manual are critically important for complainants and recipients, including colleges and universities, involved in OCR’s complaint process. The Manual, which takes effect today, will govern how OCR investigates and resolves discrimination complaints going forward.
The new procedures largely formalize the “New Day at OCR” announced by OCR’s Acting Assistant Secretary Candice Jackson last year, with narrower investigations that focus on the complaint allegation(s) as compared to larger systemic issues, more flexibility in case resolutions, and a stricter adherence to the letter of the law (and the regulations). The purpose of the update is to allow the agency to more efficiently process complaints and reduce OCR’s current backlog of cases.
Here is what colleges and universities need to know about the major changes in the Manual:
1. Limiting What Qualifies as an “OCR Complaint”: Per the new Manual: “Not all information that OCR receives is sufficient to constitute a complaint subject to further processing.” For example, written information that “relies exclusively on statistical data, media reports, journals/studies, and/or other published articles as the basis for the alleged discrimination” will not be considered a complaint.
2. Expanded Grounds for Dismissing Complaints: The Manual expands the grounds for agency dismissals of complaints. Dismissed cases are frequently closed during the evaluation stage and are based solely on the information provided by a complainant and prior to any formal notice to the institution. OCR can now dismiss cases for the following new or revised reasons:
· Initial Determination: OCR is unable to conclude, based on a review of the documents and/or information received from the complainant, that the complaint establishes a violation of one of the laws OCR enforces.
· Burden on OCR Resources: A complaint filed against multiple recipients will be dismissed when: “viewed as a whole, [it] places an unreasonable burden on OCR’s resources.” This will allow OCR to decide not to investigate multiple complaints filed by a single “frequent flyer” complainant (for example, in the areas such as web accessibility and Title IX athletics).
· Same or Similar Cases: Complaints will be dismissed when they contain the same or “similar allegations based on the same operative facts” as cases in other forums, such as in federal or state court litigation, a recipient’s internal grievance procedures, or OCR’s complaint process. Previously, only cases with the exact same allegations could be closed.
· Complainant Information: The complainant fails to provide information requested by OCR within 14 calendar days (shortened from 20 days).
3. More Due Process: The new Manual provides more information to and more flexibility for institutions alleged to have violated civil rights laws. New or revised provisions include:
· Copy of Complaint: A copy of the complaint will be provided to recipients upon request.
· Data Request Timeframes: The timeframe for responding to OCR’s data requests will be established at OCR’s discretion, depending on the nature and extent of data requested and/or other special circumstances, “including factors affecting feasibility of the timeframe brought to OCR’s attention by the recipient.” The previously-suggested 15- calendar day response time has been dropped.
· Interviews: The new procedures add: “OCR will make efforts to work with recipients to conduct interviews in a manner that minimizes disruptions to the recipient’s educational environment.”
4. Narrower Scope of Investigations: The Manual requires the agency’s regional offices to focus on the investigation and resolution of “allegations,” instead of “allegations and issues” or “issues of systemic discrimination.” This change, previously announced in OCR’s June 2017 internal “scoping” memo, has already resulted in a much higher resolution rate for OCR’s older cases, including sexual violence and student discipline cases.
5. Increased Opportunities for Case Resolution: The Manual provides expanded opportunities to resolve complaints earlier and more easily. The “alphabet soup” of resolution options includes:
· “RRP”: The Rapid Resolution Process, an expedited case processing for resolving cases early in the process, can now be used for all cases (not just disability cases).
· “FCR”: The option for the parties to mediate an agreement with OCR is still available, but is now called “Facilitated Complaint Resolution” (previously, it was called “Early Complaint Resolution (or “ECR”)).
· “RA”: The new Manual provides the regional offices and recipients with more time to negotiate Resolution Agreements. For cases subject to the 30-day negotiations timeframe (resolutions entered prior to any compliance findings), negotiations may continue after the 30th day while the investigation is ongoing. For cases subject to the 90-day timeframe (cases with violation findings), negotiations may be extended for another 30 days when negotiations are “on-going.”
6. More Limited Monitoring of RAs: The changes in this section suggest that OCR will use a checklist-style approach to monitoring resolution agreements, where OCR close cases in monitoring after it determines that the recipient has completed the specific agreement requirements. The new Manual no longer requires that, prior to the closure of monitoring, OCR also make a determination that the recipient is in compliance with the statute(s) and regulation(s) that were at issue. This language also no longer needs to be included in agreements.
7. Appeals Process Eliminated: The Manual does away with the agency’s former appeals process altogether. Although not required by statute or regulation, OCR previously offered complainants (but not recipients) the opportunity to appeal the agency’s substantive compliance determinations. Under the new Manual, neither party can appeal OCR’s determinations.
8. Increased Technical Assistance: Technical assistance has traditionally been the third pillar of OCR’s civil rights enforcement work, along with complaints and proactive compliance reviews. In the Manual, OCR suggests that it will consider providing technical assistance to recipients in those situations where the information provided is not sufficient to open an investigation, but OCR determines that TA would be beneficial to the recipient.
Feel free to contact HMBR for more details about the new Manual or to discuss any questions or concerns you have.