OCR Releases New Case Processing Manual

On March 5, 2018, the U.S. Department of Education’s Office for Civil Rights released its new case processing manual (“CPM”), which details its proce­dures for investigating, resolving, and dismissing complaints. The updated procedures contain many important changes, some of which are highlighted below.

Complaints

The recipient of a complaint now can request a copy of the complaint filed against it. This change will benefit schools that previously had to make a FOIA request to obtain a copy of an original complaint. Complaints based exclusively on “statistical data, me­dia reports, journals/studies and/or other published articles as the basis for the alleged discrimi­nation” will no longer be sufficient to warrant an investigation and will need to be presented with other facts and circum­stances to avoid dismissal. Finally, under the old CPM, complainants had 20 days to provide additional in­formation to OCR if their complaint lacked sufficient detail or was not sufficiently grounded in fact. The new CPM shrinks that timeframe to 14 days.

Rapid Resolution Process

OCR replaced its early complaint resolution procedures with the Rapid Resolution Process (“RRP”), which allows OCR to try to resolve a com­plaint before it issues a letter of notification to the recipient. If both parties consent, OCR may use the RRP to resolve the complaint by:

• issuing a dismissal letter if the recipient has already acted to resolve the complaint and no monitoring is required;
• issuing a resolution letter if the recipient is willing to take action in the future to resolve the complaint and monitoring is required; or
• issuing a letter of finding and obtaining a resolution agreement if OCR has enough in­formation to determine whether the recipient complied with the law.

Dismissals

The most noteworthy and substantial changes to the CPM were made to the section on dismissal of alle­gations. The prior CPM contained three mandatory bases for dismissal; the new CPM contains 21 grounds for dismissal.  OCR will now dismiss complaints that contain the same or similar allegations arising from the same facts as another complaint currently pending before another federal, state, or local civil rights en­forcement agency or in a recipient’s internal grievance procedures, if the other agency has a complaint and resolution process acceptable to OCR. Complaints that could have been raised in a proceeding currently pending in state or federal court will also be dismissed.

Additionally, OCR will now dismiss complaints that are moot or are “no longer appropriate for inves­tigation” and complaints where OCR’s ability to complete the investigation is hindered because the complainant either cannot be contacted or refuses to provide the information necessary for the investiga­tion. Finally, complaints filed against multiple recipients that place an “unreasonable burden on OCR’s resources,” whether filed for the first time or simply a “continuation of a pattern of complaints pre­viously filed with OCR,” will be dismissed as well. This new basis for dismissal appears to respond directly to the deluge of website accessibility com­plaints filed against public bodies, including most Michigan schools, over the past several years.

Effective Date

The new procedures apply to any new or existing investigations or complaints as of March 5, 2018, with one notable exception. Under the previous CPM, com­plainants who received an insufficient evidence determination had 60 days to appeal the determina­tion. The new CPM removes that appeal right entirely. But complainants who received a finding of insuffi­cient evidence before March 5, 2018, and are still within the now eliminated 60-day appeal process window, may still appeal such a finding.

Although the new CPM does not include any formal appeal process, all letters of notification, letters of findings, or resolution letters will include the state­ment that the complainant “may have a right to file a private suit in federal court whether or not OCR finds a violation.”

These changes to the CPM may have an immediate effect on Michigan schools. OCR has already begun dismissing cases based on the new grounds for dis­missal, particularly if a complaint, such as a website accessibility complaint, places an “unreasonable bur­den on OCR’s resources.” School officials who receive OCR complaints should contact legal counsel as soon as possible to explore the new options available for resolving or dismissing the complaint.