Recently, Candice Jackson, Acting Assistant Secretary for Civil Rights at the Office of Civil Rights (OCR), issued a memorandum, effective immediately, changing certain practices used to investigate alleged civil rights violations. These new directives alter some of the investigatory procedures that had been instituted under the prior Presidential Administration and give more authority to regional directors in conducting investigations of civil rights violations.
Pursuant to Acting Secretary Jackson’s instructions, OCR no longer mandates that “any one type of complaint [be] 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 over the investigation by OCR Headquarters.” Further, “there is no longer a sensitive case or call home list.” Under the new guidelines, OCR Headquarters and OCR Regional Offices “will consult regularly to determine, on a case-by-case basis, whether complex or problematic investigations require Headquarters review or intervention and when trends emerge that require Headquarters oversight or direction.” This directive applies to both new and existing cases, and existing cases may be returned to an OCR Regional Office if the Office’s Regional Director determines that the case can be adjudicated at the regional level.
Also of particular note, “OCR will no longer follow the existing investigative rule of obtaining three years of past complaint data in order to assess a recipient’s compliance.” This rule had been previously promulgated in internal policy documents in 2014. Under the new guidance, an OCR investigative team, at the regional level, “is empowered to determine what comparative data is necessary” to properly investigate a complaint of a civil rights violation. Additionally, the new guidance eliminates a “one size fits all” investigative approach for certain types of complaints. The new guidance permits OCR team leaders and regional directors “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.” Moreover, the guidance documents indicate that “OCR will only apply a systemic class-action approach where the individual complaint allegations themselves raised systemic or class-wide issues or the investigative team determines a systemic approach is warranted through conversations with the complainant.” Essentially, investigations into systemic abuse will no longer be carried out automatically. The individual complainant’s complaint must include allegations of systemic abuse in order to trigger such an investigation. Finally, the guidance documents state that OCR’s goal is to “encourage voluntary settlements wherever possible.”
The recently released guidance documents represent a preference by the current Presidential Administration to decentralize the investigation of civil rights complaints and further represent a shift in the responsibility of investigation to OCR regional branches. Please contact the Education Law Team at Maiello Brungo and Maiello for further guidance on how these new policies may affect current and future civil rights investigations.