On June 8, 2017, Candice Jackson, the Acting Assistant Secretary for the U.S. Department of Education’s Office for Civil Rights (OCR), issued an internal memo to OCR staff directing change in three specific areas of investigative procedure. Considered together, the changes are designed to “empower [OCR] investigative staff to clear case backlogs and resolve complaints within a reasonable timeframe.”
First, go-forward OCR policy will be that “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 by [OCR] Headquarters.” After this somewhat sweeping statement, the memo goes on to clarify that OCR will no longer classify a complaint about certain topics as a “sensitive case” or put it on a “call home” list, requiring the involvement of OCR leadership in D.C. in the resolution. Rather, OCR’s leadership will consult regularly with Regional Directors on a case-by-case basis to determine whether intervention by Headquarters is appropriate. The practical implication for schools is that no category of complaint, regardless of the nature of the allegations, will automatically be referred to the D.C. office – which should help to resolve significant delays in investigations, as well as confusion on the part of the school about the status of the investigation. In the absence of specific direction otherwise, the Regional Offices will be empowered to manage cases more directly. According to public statements by Ms. Jackson, the prior administration had flagged certain categories of complaints, such as those arising under Title IX, as requiring involvement and direction from Headquarters. Ms. Jackson also stated that voluntary resolution would be available in appropriate cases, regardless of the category of the complaint – another departure from previous practice, which she described as classifying certain broad categories of complaints as not suitable for voluntary resolution.
Second, “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”. Under OCR’s new approach, each investigative team (with oversight as necessary from the Team Leader and Regional Director) is responsible for determining what information is appropriate for consideration in any given case. For schools, this means that the list of requested documents accompanying an OCR notice of complaint is less likely to include boilerplate requests for the school to produce “all complaints” or “all instances of discipline” or “all grades issued” or “all students admitted” over a three-year period, particularly when the complaint alleges harm to only one individual. Instead, Ms. Jackson has stated that schools should “follow the facts where they lead.” This change has the potential to substantially decrease the burden on schools and the amount of time it takes OCR to complete an investigation.
Third, the memo clarifies that “all OCR investigations are to be framed in their scope by the allegations of each particular complaint”, meaning that unless a complainant specifically alleges class-wide or systemic issues in either the written complaint or in conversations with OCR, the investigation will be handled as an individual complaint seeking individual relief. This directive gives schools more certainty into the investigatory scope and resulting internal resources to be allocated to individually-pled OCR complaints.
Because these changes apply not only to newly filed complaints, but to all complaints currently in evaluation or investigation with OCR, schools may receive notice of the closure of long-silent cases, or may receive revised, narrower information requests in pending cases. Investigative timelines in individually-pled complaints should diminish, and voluntary resolution options may be encouraged to a greater extent. If the scope of an individually-pled case suddenly broadens, it is likely due to concurrent complaints from multiple individuals or information that the complainant provided to OCR that was not in the written complaint. To prevent further broadening of individual complaints, schools should be mindful to investigate each complaint to the extent possible and continue to observe anti-retaliation policies against complainants.
For questions or assistance with an OCR matter, please contact any of the Powers Education Group attorneys listed below.
Sherry Gray (Email: Sherry.Gray@powerslaw.com; Phone 202-872-6778)
Stanley Freeman (Email: Stan.Freeman@powerslaw.com; Phone 202-872-6757)
Joel Rudnick (Email: Joel.Rudnick@powerslaw.com; Phone: 202-872-6763)