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A New Day? Changes to OCR’s Case Processing Manual

On March 5, 2018, the Office for Civil Rights issued a revised Case Processing Manual. This manual contains the procedures that the Office for Civil Rights should follow to “promptly and investigate and resolve complaints, compliance reviews and directed investigations to ensure compliance with the civil rights laws and regulations enforced by OCR.” The changes contained in this new manual indicate the continued efforts of OCR, stated through its new leadership, to collaboratively work with institutions, rather than taking the punitive tone it has taken since the infamous and now rescinded 2011 Dear Colleague Letter.

In the context of Title IX, these changes will be welcome to institutions across the country. Those institutions who have faced an OCR investigation since 2011 know that the investigations were extremely burdensome. Investigations stemming from a complaint of non-compliance in one campus case, quickly spread to a full blown compliance review of the entire campus going back anywhere between three and five years. Under the new manual, investigations are to be tailored to the allegations contained in a complaint and the days of broad, burdensome document requests seem to be over. Many other favorable changes are contained within the manual such as additional basis for mandatory dismissals, the ability to resolve complaints up to a finding through a facilitated resolution between the parties (“FRBP”) and the removal of an appeal right of a complainant if OCR makes a finding of insufficient evidence.

OCR is demonstrating an increased willingness to work with institutions while maintaining its efforts in achieving civil rights goals. As this manual goes in to affect across regional offices, it is crucial that institutions either currently under investigation or who find themselves under investigation work closely with their counsel to ensure that they are availing themselves of the benefits of some of the positive changes set forth in the revised manual.

Courtney Bullard is a former System attorney and the head of Institutional Compliance Solutions. ICS provides a full range of legal and consulting services for institutions of higher education, including assistance with claims of sex- and gender-based discrimination and harassment. We partner with institutions to defend Office of Civil Rights and other federal investigations and litigation. Our services expand to representation in any legal matter faced by institutions. Contact us for more information on ICS’ services.

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