August 31, 2020

Process Revisions by Office for Civil Rights Include Key Changes for Educational Institutions

Holland & Knight Alert
Philip J. Catanzano

Highlights

  • The U.S. Department of Education's Office for Civil Rights (OCR) has made another round of revisions to its Case Processing Manual (CPM), which outlines the procedures that OCR uses to investigate and resolve complaints under the civil rights laws that it enforces.
  • The most monumental update is that, in cases that involve the institution entering into a resolution agreement with OCR, the updated CPM provides institutions the opportunity to review and correct factual inaccuracies within the resolution letter.
  • A second significant change is that OCR articulates, for the first time, the applicable standard of review for appeals of OCR determinations. As set forth in the August 2020 CPM, OCR must now review appeals to determine "whether there is a clear error of fact and/or an error in the legal conclusion that changes the outcome of the determination."

The U.S. Department of Education's Office for Civil Rights (OCR) has made another round of revisions to its Case Processing Manual (CPM), effective Aug. 26, 2020. The CPM, last updated in November 2018 (see Holland & Knight's previous alert, "Office for Civil Rights Changes its Complaint Processing Manual Again," Nov. 26, 2018) outlines the procedures that OCR uses to investigate and resolve complaints under the civil rights laws that it enforces. For instance, the CPM addresses how OCR will evaluate complaints, dismiss complaints lacking merit or that otherwise have procedural challenges, investigate allegations against institutions and resolve any concerns discovered during OCR's review. In sum, the CPM is the guide that describes how OCR will interact with both complainants and educational institutions in various contexts.  

Opportunity to Correct Errors in Resolution Letter

The most monumental change is that, in cases that involve the institution entering into a resolution agreement with OCR, the updated CPM provides institutions the opportunity to review and correct factual inaccuracies within the resolution letter. This reflects a change that has long been sought by educational institutions but requires explanation for those not familiar with OCR or the CPM.

Typically, there are three basic outcomes after OCR determines an investigation is appropriate and that mediation or other OCR tools are not viable. The first two outcomes, found in Section 303 of the CPM, involve OCR conducting a full investigation. If, after investigation, OCR determines the institution has not violated any of the laws that OCR enforces, OCR issues a resolution letter stating that the allegations are unfounded or did not constitute a violation of the laws that OCR enforces. If OCR determines after investigation that the institution is out of compliance with the federal laws that OCR enforces, it also issues a resolution letter discussing these compliance issues, with the key difference in this second outcome being that the resolution letter is accompanied by a resolution agreement that sets forth the corrective actions the institution is required to implement and a period for which OCR will monitor the institution to oversee the corrective actions. (OCR also commonly makes hybrid determinations, in which it finds an institution responsible for certain violations but not others).

A third outcome arises in situations in which, prior to the completion of an investigation, the institution requests to affirmatively resolve the matter with OCR pursuant to Section 302 of the CPM. Provided OCR is satisfied that the negotiated resolution agreement adequately addresses any potential compliance concerns, it subsequently issues a resolution letter summarizing the investigation up to that point and including the resolution agreement that the institution must follow and that OCR will monitor. In those last two scenarios in which OCR requires the institution to enter a resolution agreement, the updated CPM allows for the institution to review the draft resolution letter to inform OCR of any factual errors in the associated draft resolution letter.

Many colleges and universities have long challenged that OCR's opaque negotiation process is unlike a typical negotiation insofar as the institution does not see the factual findings in the resolution letter before entering into an associated resolution agreement that assumes responsibility – explicitly or implicitly – for the actions outlined in that letter. This left institutions with significant concerns because, not only does the complainant receive a copy of the resolution letter and resolution agreement, but OCR also reserves the right to publish both documents on the federal agency's website. Since individual complainants may also file private litigation under the same laws, the resolution letters and agreements are common attachments to demand letters and litigation-related documents. While the documents may not ultimately end up serving as admissible evidence, they may paint the institution in a negative light in subsequent proceedings and in the media. Further, any member of the public could request both the resolution letter and the resolution agreement through the Freedom of Information Act. Once the document is provided to a member of the public, it effectively becomes a public record and there are very few, if any, limitations on how such a document could then be further published or shared on social media by an aggrieved individual or even by a media source compiling issue databases, e.g., The Chronicle of Higher Education's Title IX Tracker. These institutional risks were compounded if OCR included a factual error that the institution then had to disprove.

Although the updated process does not provide institutions the right to demand changes to an OCR resolution letter, it is the first time that OCR will allow institutions to review these letters before resolution and will consider amending the letters to more fully reflect the facts. Notably, the updated CPM also states that "where appropriate, OCR will modify the proposed resolution agreement to reflect any corrections" made to the resolution letter. It is anticipated that any corrections made to a resolution letter and reflected in a resolution agreement would benefit the institution, given that the institution is providing any additional information or correction to the record, but there is no limitation in that regard. That is, if an institution were to provide additional information that inadvertently indicates further compliance challenges at the institution, OCR is not limited in reflecting that in a revised resolution agreement.

Standard for Appeals Clarified

The second significant change is that OCR articulates, for the first time, the applicable standard of review for appeals of OCR determinations. As set forth in the August 2020 CPM, OCR must now review appeals to determine "whether there is a clear error of fact and/or an error in the legal conclusion that changes the outcome of the determination." While such clarity is welcomed, it also reaffirms that which has long been practical knowledge: OCR has a high standard of review for appeals, and reversals of OCR findings and determinations must be outcome determinative for OCR to find in favor of the appellant.

OCR Will Continue to Highlight First Amendment Issues

Lastly, as referenced in the November 2018 update, despite the fact that OCR's jurisdiction does not include enforcing the First Amendment, it added Section 109 of the CPM to make clear that it prioritizes First Amendment rights and principles and will not interpret its laws to violate such principles. As noted at the time, this provision could have substantial impact in cases alleging inappropriate speech that could create a hostile environment on the bases of race, sex or disability, for example. Although the updated CPM does not substantively alter Section 109, it does add cross-referencing language that makes clear OCR will continue in its balancing of First Amendment principles. While this has the most import for public institutions bound by the First Amendment as state actors, it also could implicate the free speech principles created by private institutions. For example, in Section 109, OCR states that it will make sure its enforcement effort comport with "First Amendment principles" and will not require institutions to "encroach upon the exercise of such rights." Many private institutions similarly rely on such First Amendment principles in designing the contractual speech rights that are provided on campus. Through that lens, it would not be difficult to envision a scenario in which OCR takes a dim view of an institutional effort to investigate and sanction an individual involved in a claim of race or gender discrimination in which the discriminatory act is limited to language or some form of speech or protest more traditionally protected by the First Amendment. This may bear particular importance for institutions to consider in an election year.

For more information, please contact the authors or another member of Holland & Knight's Education Team.


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


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