CPM Updates Will Change How OCR Investigates Complaints

The Office for Civil Rights (“OCR”) within the U.S. Department of Education updated its Case Processing Manual, or “CPM,” in late November, which will change how OCR investigates and processes complaints against school districts across the country. As you may know, OCR is charged with the duty to enforce the following civil rights laws within school districts:

  • Title VI of the Civil Rights Act of 1964, prohibiting discrimination on the basis of race, color, and national origin;
  • Title IX of the Education Amendments of 1972, prohibiting sex discrimination;
  • Section 504 of the Rehabilitation Act of 1973, prohibiting discrimination on the basis of disability and setting forth requirements for providing accommodations to students with disabilities;
  • The Age Discrimination Act of 1975, prohibiting age discrimination;
  • Some portions of Title II of the Americans with Disabilities Act of 1990, prohibiting disability discrimination by public entities, regardless of whether they receive federal financial assistance; and
  • The Boy Scouts of America Equal Access Act, prohibiting school districts from denying the Boy Scouts of America or any patriotic youth society access to the district if any other outside youth or community groups are allowed to meet on school grounds.

 

When someone lodges a complaint against a school district alleging that the district has violated any of the above-mentioned civil rights laws, OCR begins an investigation into the individual’s complaint, typically by requiring written responses from the district before potentially moving toward on-site visits and staff interviews. Early resolution may also be an option, which includes developing a sort of “settlement agreement” with OCR, or by mediating a complaint with the complainant.

While some of the changes OCR made to its manual were minor, some of the larger changes will affect how OCR will move through this investigation process. In our opinion, the more significant changes to the CPM included the following:

  • Appeals. In March 2018, OCR modified its CPM to remove appeals of OCR decisions. Those appeals were included within the November revisions with regard to at least some complaints. These appeals allow complainants to appeal OCR decisions, but not school districts, however.
  • Copies of Complaints. One change that will be beneficial to school districts is the fact that OCR’s new CPM states that OCR will provide a copy of the complaint to school districts at the outset of the complaint, when it provides the initial case opening letter to school districts. This is a welcomed change, as OCR typically denied any district requests to review OCR complaints prior to this change.
  • Early Resolutions. The new CPM expands the use of the Rapid Resolution Process (“RRP”), typically called “302 Agreements,” or “Resolution Agreements;” and Facilitated Resolution Between the Parties (“FRBP”), which is OCR’s mediation program. Under the March version of the CPM, RRP could only be used in certain types of cases and during certain steps of the investigatory process. Now RRP can be used in more instances in order to quickly resolve cases. It is likely that OCR will now push RRP and FRBP during the investigation process.
  • Limits to the Use of “OCR Policy.” In the past, OCR has typically relied on its own policies to determine outcomes of complaints and analysis of cases. We aren’t sure how great the impact of this change will be, but it shows that they may be moving away from relying on regulatory guidance and past decisions, and more on the letter of the law when determining outcomes, or even compliance with, or the terms of, Resolution Agreements.
  • First Amendment Recognition. The November CPM includes a new section on the impact of the First Amendment on OCR’s investigations. The CPM states that OCR will consider the First Amendment as a threshold issue and throughout the processing of the complaint and will interpret the law it enforces consistently with the First Amendment. This may mean that OCR will begin recognizing free speech as a defense to complaints.
  • Burdensome Complaints. As many Missouri districts experienced over the past few years, there was a mass filing of complaints alleging disability discrimination based on the fact that a district’s website was not accessible to individuals with sight and hearing impairments. OCR was flooded with these complaints, which caused a significant burden on investigators’ caseloads and increased case processing time. As a result, OCR modified its CPM in March to include a section allowing OCR to dismiss a complaint that was part of a pattern of complaints that placed an unreasonable burden on OCR’s resources. That section has been removed in this November version of the CPM, which could cause a resurgence in the amount of website accessibility complaints.
  • Scope of Investigations. OCR’s previous CPM stated that the scope of OCR’s investigation into any complaint would be based on the laws OCR enforces, as well as the specific allegations raised in the complaint. In the new CPM, the reference to the complaints “specific allegations” has been removed, which may mean that the scope of OCR’s investigation will encompass any issues they find problematic based on their investigation.

 

The changes went into effect immediately and also apply to complaints OCR is currently investigating.

If you have any questions about these changes, or if you receive notice of an OCR complaint against your district and you have questions regarding how to respond, please reach out to us. We’d be happy to provide any guidance you may need, including assisting in preparing a response.