Thursday, June 15, 2017

OCR Scales Back Investigation Process

A new internal memorandum from the Acting Assistant Secretary for Civil Rights Candice Jackson instructs OCR investigators in the regional offices that they should no longer automatically conduct systemic investigations in response to individual complaints.

Previously when OCR investigated institutions for violations of Title IX or other civil rights laws, it would request three years of data and files from the institution so that it could determine whether whatever allegation was being investigated was part of a widespread or broader compliance problem. For example, say a student filed a complaint with OCR alleging that the institution took too long to resolve her complaint of sexual assault. OCR would not only investigate that claim but other sexual misconduct complaints that the institution processed over the last three years.  The agency may then determine that "promptness" was an issue in several other students cases besides (or even instead of) the one that triggered the investigation. Going forward, however, OCR will not automatically do that extra digging into the institution's historical files.

That said, the memorandum provides OCR investigators with discretion to request comparative data from an institution when it is required by the legal analysis called for in the complaint.  In the Title IX context, an example of this would be when a student files a complaint with OCR against an institution alleging that the institution denied him procedural rights on a sexual misconduct hearing, because of his sex. In order to determine whether there is a pattern of treating respondents of one sex differently from respondents of another sex, it would be necessary for the investigators to request comparative data about how the institution handled other sexual misconduct cases.  (I made up this example, but based it off the hypothetical example in the memo about a racially discriminatory suspension).  The agency would also have to conduct a systemic investigation when it is investigating a complaint that takes a "class action approach" and alleges systemic violations.

Here are some of my thoughts about this change in OCR's approach:

  • Agree or not, this kind of change about how the agency conducts investigations is a matter that is within the agency's discretion. 
  • It the kind of change that is politically consistent with administration that takes a skeptical view of government regulation in general.  
  • In my opinion, when OCR did examine three-years worth of data, the resulting findings gave a clearer picture of the institution's overall compliance approach. Though sometimes the picture was damning, it could also be somewhat exonerating -- such as if the agency says "we looked at three years worth of data and all we found was one case where the resolution was not prompt." I personally found that kind of context helpful to understanding the extent of compliance problems within institutions and in general.
  • It is also worth keeping in mind that in the Title IX context, the agency's prior practice of conducting broad investigations did not expose institutions to risk of a greater penalty. Unlike some areas of law where an entity is fined per violation,OCR resolutions are always aimed at ensuring that violations do not continue going forward. 
  • On the other hand, OCR's former approach was very time-consuming. Its practice of looking deeply into each complaint may have prevented it from being able to look into other complaints at all. 
  • It is difficult to imagine how OCR would otherwise be able to process the hundreds of sexual misconduct related complaints (not to mention other civil rights complaints) that is has in its backlog, especially given that the President has proposed to drastically decrease the agency's funding rather than increase it. 
  • On the bright side, implicit in the memo appears to be an affirmation that when a complaint does allege systemic violations, the agency will conduct an appropriately broad review, which I appreciate.