By Abby S. Busler
On June 8, 2017, Candice Jackson, Acting Assistant Secretary for the U.S. Department of Education Civil Rights Division, modified many of the practices to investigate civil rights violations by public school districts. The changes are summarized as follows:
First, the Office for Civil Rights (OCR) no longer grants certain complaints automatic review and oversight by the OCR headquarters in Washington, D.C. OCR removed the term “sensitive” complaint, thereby eliminating different treatment of complaints. Previously, complaints alleging sexual assault or harassment, transgender discrimination, and racial disparities were considered sensitive cases and received different treatment. Now, these categories of cases will not be treated any differently than other types of cases and will not require a “systemic” investigation procedure. Instead, these cases will be processed at the direction of the regional directors.
For example, in the past, if a transgender discrimination complaint was raised, it could bypass the regional office, and a complaint would start in the Washington, D.C. office. Because OCR removed the label of “sensitive” cases, each complaint will be brought to the regional office, and will not receive different treatment in the case handling procedure. This processing change is an effort to promote efficiency in OCR case handling.
Second, OCR eliminated the previous investigative rule, requiring three years of past complaint data in order to assess school district compliance. Currently, team leaders and regional directors determine what comparative data is necessary and move forward in that manner. This change serves to limit the scope of OCR investigations. OCR will no longer follow the “one size fits all” approach to investigations. All investigations and the scope of evidence required for each investigation grants more discretion to the OCR investigator.
For example, a racial disparity student discipline complaint previously required an investigator to complete a full three-year background on the district, before the merits of the case were addressed. An OCR investigator is now able to move forward in a case, even if there is not three years of past data, to determine if a school district was in compliance with the anti-discrimination laws.
Third, as a result of the new “case-by-case” analysis, OCR will no longer automatically apply “systemic” or “class action” investigations to individual complaints. However, the systemic approach will be used if an individual complaint allegation raises a systemic or class-wide issue or the investigative team determines the approach is required to address the merits of a complaint.
OCR will no longer require a review of the district’s history as part of complaint processing. For example, if an employee raised a sexual harassment complaint against a school district, OCR will likely not investigate the district’s history to see if it was a systemic and historical problem. Instead, OCR will focus on the specific facts of a case, and likely not its broader context.
OCR emphasizes their goal is to address compliance issues swiftly and reach reasonable resolutions that directly respond to the concerns raised in the individual complaint. OCR will continue to encourage voluntary settlements wherever possible. Every change highlighted above is effective immediately and applies to all current and newly filed complaints. The changes respond to a growing concern over efficiency in case processing and shrinking public school resources.
Please contact your Davis|Kuelthau, s.c. attorney, the author noted above, or the related practice group chair linked here if you have any questions.