OCR Internal Guidance on Investigating Complaints

June 2017

In recent years, school districts in California and across the country have witnessed an expansion in the number, scope and length of investigations conducted by the U.S. Department of Education's Office for Civil Rights (“OCR”).  In particular, OCR often expanded individual complaints to more broadly investigate evidence of systematic discrimination at schools and colleges.  A June 8, 2017 memorandum issued by Candice Jackson, OCR’s Acting Assistant Secretary for Civil Rights, indicates that OCR will take a different approach going forward.

As school districts and colleges are aware, OCR enforces civil rights laws prohibiting discrimination based on race, color, national origin, sex and disability.  Districts and colleges are aligned with OCR in seeking educational environments that are free from discrimination.  In recent years, it had become increasingly common for OCR to expand individual complaints into investigations focused on possible systemic or class-wide issues.  As a result, OCR’s timeframe for conducting investigations also expanded, which made expeditious, voluntary resolutions of complaints and investigations more difficult.

Ms. Jackson’s memorandum marks a shift in direction for OCR’s investigations, including those that are open and ongoing.  Stating there is no longer a “one size fits all” approach to investigating complaints, Ms. Jackson provided the following internal guidance to OCR’s regional directors:

  • OCR headquarters will reduce automatic review and oversight of complaints and provide more flexibility to regional offices;
  • OCR regional directors and team leaders will have greater discretion to determine the scope and nature of evidence needed for a legally-sound investigation;
  • A rule requiring three years of past data to assess compliance is eliminated in order to allow regional directors and investigation team leaders to determine the data that will be necessary for review;
  • Individual cases will no longer lead to systemic or class-wide investigations without allegations of systemic issues and/or unless the investigative team determines such an approach is warranted; and
  • OCR’s stated goal is “to swiftly address compliance issues raised by individual complaint allegations, reach reasonable resolution agreements with defined, enforceable obligations placed upon recipients directly responsive to addressing the concerns raised in the individual complaint being resolved, and encourage voluntary settlements wherever possible.”

The practical impact of OCR’s shift in approach is that there are likely to be fewer expanded investigations into potential systematic discrimination at schools and colleges.  OCR’s regional offices are instead empowered to place more focus on individual complaints, which may lead to more efficient and timely outcomes of those complaints.  Regional offices may, however, still expand those investigations, but only when there are allegations of systematic issues or the regional office determines that such an approach is “warranted.”

F3 Partner, Lenore Silverman, and Of Counsel, Chad J. Graff, have participated on an OCR Taskforce with the National School Boards Association’s Council of School Attorneys since 2013, emphasizing the critical importance of the civil rights laws OCR enforces, as well as the need for fair, transparent and timely complaint resolution processes. 

If you have any questions regarding these new guidelines, please contact one of our six offices.

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