Earlier this month, the U. S. Department of Education, Office for Civil Rights’ Acting Assistant Secretary issued an internal memorandum to Regional Directors eliminating certain existing internal procedures and detailing new practices regarding the investigation of OCR complaints. With the articulated goals of assisting regional offices in clearing case backlogs and ensuring timely resolution of the complaints, the memorandum instructs that investigative teams should:
- No longer follow a “one size fits all approach to the investigation of any category of complaints;”
- Not mandate “that any one type of complaint is automatically treated differently than any other type of complaint with respect to” scope, the type or amount of data needed or the type or amount of oversight required from the federal headquarters;
- No longer automatically confer with the federal headquarters on certain cases;
- “Only apply a ‘systemic’ or ‘class-action’ approach where the individual complaint allegations themselves raises systemic or class-wide issues or the investigative teams determines a systemic approach is warranted through conversations with the complainant;” and
- No longer adhere to the rule requiring the production of “three (3) years of past complaint data/files in order to assess a recipient’s compliance….”
In tandem with the above, the memorandum explicitly empowers investigative teams “to determine on a case-by-case basis the type and scope of evidence that is necessary to support a legally sound investigation and determination, with the understanding that all OCR investigations are to be framed in their scope by the allegations of each particular complaint.” In short, the new directives make clear that decision-making authority and discretion lies with the regional office and their investigative teams, rather than with the federal headquarters. Importantly, these new practices regarding investigations are effective immediately and apply to new cases as well as those currently pending.
Although there are no direct burdens placed on recipient schools as result of OCR’s internal memorandum, it is unclear how the change in practices will impact the approach of regional offices and their investigative teams in pending and future investigations. Consequently, it is important that recipient schools engage in periodic review, and make changes where necessary, of their policies and procedures to ensure compliance with the laws and regulations that fall within OCR’s jurisdiction.
The full text of the OCR’s memorandum may be found here.