On November 20, 2018, the U.S. Department of Education’s Office for Civil Rights (OCR) announced the second round of revisions to its Case Processing Manual (CPM) in 2018. The CPM outlines the procedures OCR uses to investigate and resolve complaints and other investigations under the civil rights laws it enforces. The revised CPM brings many changes of which schools should immediately be aware.
The revised CPM includes many minor changes, but also includes some larger changes:
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Appeals are back. The March 2018 revision to the CPM removed the appeal process by which parties could challenge OCR decisions. In the November revisions, appeals are back for at least some complaints. Specifically, the revised CPM allows complainants to appeal insufficient evidence determinations under Section 303(a), as well as appeals of dismissals based on a number of specific bases. The revised CPM also allows schools an opportunity to respond to appeals by complainants, but does not grant schools the right to appeal.
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Expect more resolutions through RRP and FRBP. Since the beginning of the Trump administration, OCR has been expanding its use of its Rapid Resolution Process, or RRP, which allows OCR to negotiate directly with a responding school to effectuate compliance without a full investigation. It also has placed more emphasis on its mediation program, Facilitated Resolution Between the Parties (FRBP). Under the previous CPM, RRP could only be used for certain types of cases and at certain stages of the investigatory process. The revised CPM broadens the times and circumstances when RRP can be used, making it a more useful tool for quickly and efficiently resolving cases. Changes also suggest that FRBP will be more commonly suggested and used. Schools should now evaluate whether to pursue RRP and FRBP in every OCR case.
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Limits on the use of OCR “policy” in reaching decisions. A few seemingly minor edits to the CPM remove references to the use of “OCR policy” in the analysis of cases. We will need to wait to see how much of an impact this has on OCR’s investigative approach, but it could signal a more general shift away from reliance on regulatory guidance than has already been evidenced by the withdrawal of many Obama-era OCR guidance documents in the past two years.
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The First Amendment matters. The new CPM includes a new section on the impact of the First Amendment on OCR’s evaluation of investigations. The CPM states that OCR will consider the First Amendment as a threshold issue and throughout the processing of the complaint and will interpret its statues consistently with the First amendment. It will take some time to see how this change affects OCR practice, but the addition of the section suggests a new focus on free speech defenses to complaints.
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No more protection from burdensome complaints. The revised CPM removes a section that was added in March 2018, which allowed OCR to dismiss a complaint that was part of a pattern of complaints that placed an unreasonable burden on OCR’s resources. Schools should be ready for a return of web access complaints, which were the subject of dismissals under the revised CPM this spring.
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A copy of the complaint will be provided. The March 2018 CPM revisions provided that a copy of the complaint would be provided to the recipient school if requested. The revised CPM now states that “A copy of the complaint will be provided to the recipient,” with no reference to a request. Since March, OCR has handled requests for the complaint by recipients under its Freedom of Information process. Schools are advised to continue to request the complaint until it is clear whether OCR will provide a copy of the complaint to all recipients as a matter of course.
Schools should carefully consider these and other important changes to the CPM and within OCR policy generally when responding to OCR complaints.
