On July 18, 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) released its revised Case Processing Manual (CPM), which was last updated in August 2020. The CPM outlines the procedures OCR uses to investigate and resolve complaints under the civil rights laws it enforces, including Title IX, the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act of 1973. The revised manual contains several noteworthy changes schools and colleges should be aware of, including the following highlighted below.
Definition of “complaint”
- Defines “complaint” as “a written statement to the Department [of Education] alleging that the rights of one or more persons have been violated and requesting that the Department take action.”
- Expressly states that the following are not considered complaints: oral allegations, anonymous correspondence, courtesy copies of correspondence or a complaint filed or submitted somewhere else, and inquiries that seek advice/information but not action/intervention. Previously, OCR was permitted to determine on a case-by-case basis whether to process such correspondence or inquiries as a complaint.
- Clarifies that OCR may investigate Title IX complaints filed by employees as well as by students, parents, and applicants.
Release of information
- States that the release of information by OCR to the press or public is subject to restrictions imposed by the Privacy Act and the Freedom of Information Act (FOIA); the previous CPM did not cite FOIA.
Streamlined procedures (mostly) for recipients…
- No longer requires OCR to acknowledge the receipt of a complaint in writing, though OCR is still required to notify the complainant that it will evaluate the correspondence to determine whether it has authority to investigate.
- No longer states that OCR will provide the recipient with a copy of the complaint as part of the notification process.
- No longer requires OCR to send a draft Letter of Findings to the recipient, who previously had an opportunity to correct alleged factual errors in the draft.
- No longer requires OCR to issue a draft resolution letter and proposed resolution agreement for the recipient’s review.
- Requires recipient to sign a proposed resolution agreement within 90 days, with no extension; the previous CPM allowed OCR to extend the 90-day period if negotiations were ongoing. In addition, OCR is required—not allowed, as in the previous CPM—to end negotiations early when it is clear based on several factors that a resolution agreement will not be signed within 90 days.
…but more time provided for complainants
- Requires OCR to phone or email the complainant if a signed consent form (required when OCR deems it necessary to disclose the complainant’s identity to other parties) is not received within 15 days to advise the complainant that the complaint could be dismissed if the form is not received within the next 5 days; previously, OCR was not required to contact the complainant and could dismiss the complaint within 20 days if the form was not received.
- Provides the complainant with at least 20 calendar days, rather than 14 days, to provide supplementary information requested by OCR before OCR dismisses the complaint.
Mediation option extended to complainants
- Allows a complainant to request mediation at the time of filing. Previously, OCR would determine whether to offer mediation to the parties on a case-by-case basis.
Appeals provision removed
- Removes provision that allowed complainants to appeal dismissals that were based on failure to state a claim, lack of factual details in the complaint, timeliness, similarity to other pending complaints, or insufficient evidence of a violation.
First Amendment provision removed
- Removes a statement that reads in part that “OCR interprets its statutes and regulations consistent with the requirements of the First Amendment, and all actions taken by OCR must comport with First Amendment principles.”
While these are some of the key changes noted in the revised manual, this is not an exhaustive list. If your school or college receives an OCR complaint, contact your legal counsel as soon as possible to discuss your options based on the most recent OCR policy and procedures.