As school officials well know, there are multiple venues for employees, parents or students to file complaints concerning issues related to education or school employment, including the Pennsylvania Human Relations Commission, the Equal Employment Opportunity Commission, state and federal courts and the Office for Civil Rights (OCR). The OCR is a lesser-used venue for complaints alleging a violation of federal civil rights. Historically, OCR has not been nearly as active as the other agencies in addressing alleged violations. In the past, OCR has declined to take action or to enter a conclusive finding as to whether a violation of law has occurred. Those days, however, are over.
OCR recently announced that it will be investigating all complaints, and will be entering a finding one way or the other. Accompanying this change in philosophy is a new emphasis on complaint procedure and early case resolution. The OCR revised its Case Processing Manual in May of 2008 and clarified the processes they will follow in investigating complaints. Your school district should be aware of the new procedures to effectively defend any OCR claims which may be brought by students, parents or employees.
OCR requires that complaints be filed within 180 calendar days of the alleged discriminatory act. Any complaints which are filed must explain what happened, identify the person or group which was allegedly injured, identify the person or group allegedly causing the injury, and provide sufficient information detailing the factual basis that discrimination has occurred. If a complaint lacks the required information, OCR will permit 30 days to provide the information or risk dismissal.
OCR will complete its evaluation within 30 days of receiving a complaint. OCR will conduct interviews of relevant witnesses and request documents which are relevant to the investigation. Subpoena power may be exercised by OCR to enforce any information requests which are ignored. OCR will then either enter a finding that no violation has occurred, or it will enter a finding and initiate an enforcement action against the School District, which can lead to a loss of funding, sanctions, Department of Justice proceedings or an OCR compliance review.
OCR’s new manual adds a third alternative to OCR proceedings—disposition through an Early Complaint Resolution (ECR) process. The ECR process occurs before the OCR makes a determination as to whether a violation has occurred, and may be employed at any point either before or during investigation of the claim. If both parties are willing and the OCR branch director believes the process is appropriate, different OCR staff who did participate in the investigation will conduct mediation with the parties to attempt to reach a written agreement. During the mediation process, all information is kept separate from OCR’s investigation file. If the parties are able to resolve their differences, a written settlement agreement is prepared and signed by both parties. If one of the parties later claims the agreement was breached, OCR retains jurisdiction over the original complaint and will proceed to complete its original investigation. A complaint alleging a breach of the resolution agreement must be filed within 180 days of the original allegedly discriminatory act, or within 60 days of the act which allegedly breached the settlement agreement.
The process of defending against and responding to OCR investigations can be extremely time-consuming and costly to school districts and their employees. In situations where a reasonable, straightforward and manageable resolution can be achieved through the ECR process, school districts should consider this option.