The U.S. Department of Education's Office for Civil Rights (OCR) has revised its Case Processing Manual (commonly referred to as the CPM) yet again. The changes to the CPM, which follow closely behind the Department's release of extensive proposed Title IX regulations that Holland & Knight discussed here, are not seismic in scope or substance, but they reflect the Trump Administration's continuing efforts to distance itself from the way OCR conducted its investigative and enforcement work during the prior administration.
While OCR is charged with investigating and enforcing many of the federal civil rights laws that apply to educational institutions, those same laws offer little to no guidance about how OCR will conduct its work. The CPM ostensibly provides that information, setting forth how OCR will evaluate complaints, how it will investigate allegations against institutions, and ultimately, how it will resolve any concerns found during OCR's review. Another way to think of it is: if compliance with the laws is the goal of all institutions, and OCR is empowered to investigate institutional efforts in furtherance of that goal when complaints are raised, the CPM is the guide that describes how OCR will interact with institutions in various contexts.
Many of the changes in the new CPM are largely technical and not monumental in scope, but they may have practical impact with regard to the day-to-day work of OCR. For example, OCR has added a new section solely focused on the First Amendment to the Constitution, stating that "OCR interprets its statutes and regulations consistent with the requirements of the First Amendment, and all actions taken by OCR must comport with First Amendment principles. OCR will not interpret any statute or regulation to impinge upon rights protected under the First Amendment or to require [educational institutions] to encroach upon such protected rights." This provision may have substantial impact in cases alleging inappropriate speech that could create a hostile environment on the bases of race, sex or disability, for example. Given the U.S. Supreme Court's historic and broad interpretation of protected "speech" to also include nonspoken forms of speech, such as publishing or demonstrative speech, this provision may also present further considerations for institutions internally reviewing such allegations as they arise.
Another change is the slightly modified approach to resolutions reached pursuant to Section 302 of the CPM, and more broadly referred to as "302 resolutions." In the past, 302 resolutions allowed institutions to take affirmative action after receiving notice, but prior to completion of, an OCR investigation. The institutions would then enter a resolution agreement with OCR but the resulting letter would be brief and basically summarize the allegations and the next steps to be taken by the institution. This was an important consideration for institutions because OCR commonly publishes both the resolution agreement and the corresponding letter on the Department's website. More recently, 302 resolutions began to include more of the information learned by OCR through the investigation but prior to entry into the resolution agreement. This was surprising to many institutions who anticipated a shorter, more generic 302 resolution letter. In the revised CPM, OCR makes clear that 302 resolutions will now include a "summary of the investigation, including an analysis of the evidence obtained to date and the identified concern(s) that support the need for the provisions of the agreement." (Emphasis added.) This change may impact an institution's strategic decision regarding whether and when to request a 302 resolution.
Finally, the revised CPM has added an explicit section on appeals. While this section largely mirrors the language that was traditionally added at the end of OCR's resolution letters, there is one important difference. The CPM now states that "OCR will forward a copy of the complainant's appeal form or written statement" to the institution. The institution then "has the option to submit to OCR a response to the complainant's appeal" within 14 days. Under the prior versions of the CPM, OCR would determine the validity of the complainant's appeal without necessarily notifying the institution that it was doing so.
OCR's revised CPM maintains most of the requirements contained in the last version from March 2018. However, the changes set forth above could prove important to your institution and should be carefully considered in any strategic discussions.
For more information, please contact a member of Holland & Knight's Education Team.
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