On July 18, 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a new Case Processing Manual (CPM). The CPM details procedures for OCR’s evaluation, investigation, and resolution of complaints
or compliance reviews relating to the federal civil rights laws it enforces. Because the typical ISD FFH (Local) policy tracks federal civil rights laws, any complaint under your FFH (Local) policy potentially implicates enforcement review by OCR under its CPM.
The following is a link to the new OCR CPM: Click Here
OCR has jurisdiction to investigation complaints of discrimination against a recipient of federal financial assistance from the Department of Education under the following civil rights
laws:
- Title VI of the Civil Rights Act of 1964 (prohibiting discrimination based on race, color, or national origin);
- Title IX of the Education Amendments of 1972 (prohibiting discrimination based on sex)
- Section 504 of the Rehabilitation Act of 1973 (prohibiting discrimination based on disability);
- Age Discrimination Act of 1975 (relating to age discrimination);
- Title IX of the Americans with Disabilities Act of 1990 (prohibiting discrimination based on disability); and
- Boy Scouts of American Equal Access Act of 2001 (prohibiting denial of equal access of fair access to the Boy Scouts of America or any affiliated group).
OCR has data collection and information gathering authority. OCR’s enforcement action generally includes administrative action to suspend, terminate, or refuse to grant or continue federal financial assistance
and referral of the case to the U.S. Department of Justice for judicial proceedings to enforce any rights of the United States under any law of the United States.
The most notable changes to the current Manual from the 2020 version are as follows:
- Oral allegations, anonymous correspondence, copies of complaints filed with another entity and inquiries seeking advice or information are not complaints. Previously, OCR had discretion to investigate these issues on a case-by-case basis;
- If signed consent to disclose the identity of the complainant is needed to resolve a complaint is not received by OCR within 15 calendar days it will contact the complainant by phone to inform them the complaint will be dismissed within 5 calendar days if the consent is not received;
- New mediation procedures take the place of facilitated resolution;
- The 2022 CPM sets forth two new content requirements for Letters of Findings (LOF):
A LOF must address the evidence obtained during the investigation. This is a broader in scope than the 2020 CPM, which only required an LOF to address "all allegations opened for investigation."
The LOF must include a statement that the resolution agreement, when fully implemented, will address OCR's compliance concerns and the identified violations. Moreover, the LOF must state that OCR will monitor the implementation of the resolution
agreement until the recipient is in compliance with all statutes and regulations at issue in the case.
Appeals of dismissal by OCR based upon the failure to state a claim, the lack of factual details in the complaint, timeliness, or the similarity to other pending complaints are no longer permitted;
The 2022 CPM requires OCR to initiate enforcement action when it is unable to negotiate a resolution agreement with the recipient. OCR does not have to try to reach a resolution agreement with the recipient after it has issued a Letter of Impending
Enforcement Action.
OCR must take enforcement action when a recipient has denied access to its information, employees, or facilities
For questions or assistance regarding any complaints of discrimination, harassment or retaliation against students, please feel free to contact the law firm.
Author: John J. Janssen
