The Department of Education Office for Civil Rights (OCR) has released a new Case Processing Manual (CPM), effective as of August 26, 2020 LINK HERE.
The OCR CPM remains a compendium of the procedures by which OCR handles complaints against educational institutions accused of being in violation of one or more of the various civil rights laws that OCR is charged with enforcing. This latest version, however, includes no less than the following notable changes:
1) Institutions entering into resolution agreements with OCR will now have a five-day window within which they may request changes to what they see as factual errors in the resolution letters issued by OCR;
2) Institutions found to be in non-compliance will also have a five-day window for informing OCR of errors in factual findings in OCR investigative determinations; and
3) The Department of Education (DOE) now sets out a standard of review for appeals from OCR determinations.
OCR Early Resolution Letters: An Opportunity to Propose Corrections
In those cases in which an educational institution, prior to OCR’s completion of an investigation, indicates an interest in an early resolution of the matter, and in which OCR finds the case appropriate for early resolution, OCR policy is to issue a resolution letter summarizing the investigation up to that point to accompany the resolution agreement. These resolution letters are important
because the individual complainant and general public will have or can obtain access to these letters, and, depending on how the factual investigation to that point is described, the educational institution could be portrayed as having been responsible for alleged harm or damages. The resolution letters could be cited, including a demand letter, as evidence of responsibility on the part of the educational institution, despite a resolution agreement having been entered into before the OCR
investigation is complete. Under the new version of the CPM, educational institutions which are entering into resolution agreements prior to completion of an OCR investigation will now have five calendar days to inform OCR of any factual errors within the draft OCR resolution letter.
While there is no guarantee that OCR will make the requested changes, the new manual states,
“If, after due consideration of the recipient’s concerns, OCR determines that the draft resolution letter contains factual errors, it will correct the errors, make any other revisions it deems appropriate, and promptly issue a revised final resolution letter. In addition, where appropriate, OCR will modify the proposed resolution agreement to reflect the corrections.” [Department of Education, Office
for Civil Rights, Case Processing Manual (CPM), Effective Date: August, 26, 2020, Excerpt from Section 302, “Resolution Agreement Reached During Investigation]
OCR Investigative Determinations of Non-Compliance: An Opportunity to Propose Corrections
Likewise, for instances in which an OCR investigation results in a determination of non-compliance, the new case processing manual includes a five-day window in which an educational institution may inform OCR of any factual errors in its findings:
“The recipient shall have five calendar days from the date of the issuance of the draft letter of findings to inform OCR of any factual errors contained therein. If, after due consideration of the recipient’s concerns, OCR determines that the draft letter of findings contains factual errors, it will correct the errors, make any other revisions it deems appropriate, and promptly issue a revised final letter of
findings. In addition, where appropriate, OCR will modify the proposed resolution agreement to reflect any corrections.” [Department of Education, Office for Civil Rights, Case Processing Manual (CPM), Effective Date: August, 26, 2020, Excerpt from Section 303, “Investigative Determinations”]
Previously, these investigative findings of fact were not generally released to the school district involved, but the district nonetheless faced the possibility that the complainant would obtain any findings of fact adverse to the school district through a Freedom of Information Act (FOIA) request. Under the new procedures, a district will have an opportunity to address any factual errors in the OCR
findings, which may be especially important should the facts later be relied on by the complainant in litigation.
Inclusion of a Standard of Review for Appeals of OCR Determinations
Also new in this latest version of the CPM is a statement, although very brief, indicating what OCR is looking for in appeals of its determinations: “OCR reviews appeals to determine whether there is a clear error of fact and/or an error in the legal conclusion that changes the outcome of the determination.” [Department of Education, Office for Civil Rights, Case Processing Manual (CPM), Effective Date:
August, 26, 2020, Excerpt from Section 307, “Appeals”]
Author: John Janssen
