The U.S. Department of Education Acting Assistant Secretary for Civil Rights (OCR) recently issued instructions to all OCR Regional Directors, addressing the scope of OCR investigations in cases currently in evaluation or investigation and for newly-filed complaints.
Key aspects of the instructions include:
- “Effective immediately, there is no mandate that any one type of complaint is automatically treated differently than any other type of complaint with respect to the scope of the investigation, the type or amount of data needed to conduct the investigation, or the amount or type of review or oversight needed over the investigation by Headquarters.”
- “In particular, OCR will no longer follow the existing investigative rule of obtaining three (3) years of past complaint data/files in order to assess a recipient’s compliance….”
- Instead the investigative team will have the power to determine what comparative data (Civil Rights Data Collection or other) are necessary to determine if others who are similarly situated were treated the same or different as the complainant.
- “There is no longer a ‘one size fits all’ approach to the investigation of any category of complaints.
- The investigation team will “determine on a case-by-case basis the type and scope of the evidence that is necessary to support a legally sound investigation and determination”; framed in scope by the particulars of the allegation.
- “OCR will only apply a ‘systemic’ or ‘class-action’ approach where the individual complaint allegations themselves raise systemic or class-wide issues or the investigative team determines a systemic approach is warranted through conversations with the complainant.”
- There is no longer a “sensitive case” or “call home” list that requires that the OCR headquarters be closely involved or handle matters.
These changes will certainly impact the approach taken by OCR to Title IX investigations which in the recent past, even if initially filed by only a single complainant regarding a single incident, have included a wide ranging review of an institution’s practices, policies and three years of information regarding Cleary incidents and Title IX related investigations and activities. These investigations often took on a “systemic” nature. Many investigations took years to complete, even if started by only a single complainant contesting a single decision. The new guidelines are likely to result in more targeted investigations (perhaps more in line with single complainant EEOC charges) and the production of less documentation as a result of an investigation.