Over the years, public school districts have scrutinized the United States Department of Education’s Office for Civil Rights (OCR) for the manner in which it has handled its investigations. Among other things, public school districts have alleged that OCR:

• conducts its investigations in an overly broad and burdensome manner (e.g., routinely requests documents and information beyond the scope of the allegations in the complaint, with respect to both substance and time period)

• converts individual complaints to class-based investigations without appropriate support or justification

• pressures school districts into settlement agreements by threatening to expand the scope of the investigation

• routinely fails to conclude its investigations within OCR’s investigation timelines

In response to this scrutiny, OCR purports to have changed the manner in which it investigates complaints against public school districts.

First round of changes to OCR’s process

The first round of changes occurred in June 2017, when Candice Jackson, Acting Assistant Secretary for Civil Rights, sent an internal memorandum directing OCR’s Regional Directors to immediately change some of their office’s practices for investigating alleged civil rights violations by public school districts. This memorandum directed, among other things, that OCR shall not apply a “systemic” or “class-based” approach to investigations unless the individual complaint raises systemic or class-wide issues or the investigative team determines that a systemic approach is warranted based on conversations with the complainant; OCR shall conduct its investigations on an individualized, case-by-case basis, as opposed to following a “one size fits all” investigative approach; OCR shall “swiftly address compliance issues raised by individual complaint allegations”; OCR shall narrowly draft resolution agreements so that they are “directly responsive to addressing the concerns raised in the individual complaint”; and OCR shall generate data requests on an individualized, case-by-case basis, rather than automatically requesting three years of past complaint data to assess a school district’s compliance with a legal requirement.

In March 2018 OCR formally adopted the above changes by incorporating them into the OCR Case Processing Manual (Manual). At that time, OCR made other changes to the Manual. Among other things, OCR limited the circumstances when systemic or class-based allegations may be investigated. OCR also expanded the list of permissible reasons for dismissing a complaint. Most notably, OCR investigators were authorized to dismiss any complaint deemed to be the continuation of a pattern of complaints that, viewed collectively, placed an unreasonable burden on OCR’s resources. In addition, to facilitate the amicable resolution of complaints, OCR added new language to the Manual that expanded the time period when parties may enter into resolution agreements.

Second round of changes to OCR’s process

The above changes have been criticized on a number of grounds, including that they limit the rights of complainants and are, to some degree, inconsistent with the corresponding federal regulations. As a result, on November 20, 2018, OCR announced a second series of revisions to the Manual. In contrast to the prior changes, these new revisions are designed to restore or expand the rights of complainants. Among the most notable revisions to the Manual are the return of a complainant’s right to appeal the dismissal of a complaint based on insufficient evidence; the elimination of OCR’s authority to dismiss a complaint on the grounds that it is part of a pattern of complaints; and the addition of language requiring OCR to consider the rights of individuals under the First Amendment (e.g., freedom of speech) when assessing the relevant claims and defenses.

Despite these new revisions, a number of previous changes remain in effect, including the shifting of OCR’s focus from class-based to individual complaints and the expanded timeframes for settlement discussions. With luck, this latest round of changes will enable OCR to meet its goal of conducting investigations in a fair and efficient manner, while still protecting the rights of all parties involved.

This alert does not purport to be a substitute for advice of counsel on specific matters.