New OCR Case Processing Manual Limits Appeals and Expands Dismissals

By April 4, 2018 News No Comments

In February 2015, the U.S. Department of Education’s Office for Civil Rights released their revised procedures regarding how OCR complaints are investigated, resolved, and potentially dismissed via the 2015 Case Processing Manual.  The Manual was again updated on March 5, 2018 with notable changes.

The 2018 CPM now excludes OCR’s only prior appellate component.  In 2015, the OCR website and CPM outlined the process for any complainant who wished to appeal an OCR determination of insufficient evidence regarding an allegation of a recipient’s failure to comply with an applicable regulation. The 2015 CPM allowed a complainant 60 calendar days from the date of OCR’s letter of finding to submit a written appeal to the Enforcement Officer Director of the OCR Enforcement Office who issued the decision. This process allowed the complainant to explain why s/he believed the determination was incorrect, incomplete, or not based on an appropriate legal standard. The Enforcement Officer Director could also grant a waiver of the 60-day timeline due to the complainant’s illness, incapacitating circumstances, or unique circumstances generated by the OCR office that adversely affected the complainant.

The current Manual makes no mention of any form of appeal.  Rather, it provides that a complainant must be informed that s/he “may have a right to file a private suit in federal court whether or not OCR finds a violation.”

Both the 2015 and 2018 Manuals also outline specific circumstances in which an allegation may be dismissed or closed.  For example, OCR will dismiss an allegation that fails to state a violation of a law that OCR enforces; an allegation that lacks sufficient detail to infer that discrimination or retaliation has occurred; or an allegation that is so speculative, conclusory, or incoherent that OCR cannot infer discrimination or retaliation.  However, the 2018 CPM now includes over 20 additional circumstances in which it will dismiss a complaint’s allegations. In contrast, these same circumstances were previously addressed by the 2015 CPS as allegations that will be closed (versus dismissed), or allegations that may be closed.

HLERK will closely monitor the potential effects regarding the 2018 CPM’s removal of the appellate process, as well as the wider scope of required dismissals regarding certain complaints and investigations.

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