OCR Will Now Dismiss Complaints By "Frequent Flyers"

The Department of Education has recently revised its Case Processing Manual to permit OCR to dismiss complaints in the interest of efficiency. Section 108 of the Manual lists the grounds on which the agency can dismiss a complaint in lieu of, or an any point during, an investigation. These grounds have long included things like: lack of jurisdiction, failure to state a violation of law, insufficient factual allegations, and duplication of an ongoing enforcement action in a state or local agency. But the Department now also permits OCR to dismiss a complaint that is "a continuation of a pattern of complaints previously filed with OCR by an individual or group against multiple recipients" as well as complaints filed for the first time against multiple recipients that "viewed as a whole, places an unreasonable burden on OCR’s resources."  According to the New York times report on this change, the agency justifies this new policy on grounds that it permits them to set priorities for enforcement and to use resources efficiently, by addressing the problem of activists, so-called "frequent flyers," clogging up the enforcement docket with routine filings and mass complaints. 

While this may be new language in the Manual, OCR's aversion to routine and mass complaints is not new in practice. I've seen examples in which OCR dismissed complaints by routine filers on grounds that wouldn't have applied to other complaints. For instance, the agency has dismissed Title IX complaints filed by individuals who routinely challenge inequitable distribution of athletic opportunities in public schools.  In my observation, the rationale for these dismissals -- particularly, in requiring complainants to produce an unreasonable and illogical amount of evidence of unmet interest -- are not consistent with the agency's overall practice.

I suppose it is better that the agency has added a provision expressly permitting the dismissal or mass complaints than to distort the legal standard in ways that could create harmful precedent for all complaints. But I still find it troubling. Because of the way that Title IX and other civil rights laws are structured, the only penalty OCR can impose or threaten is the loss of federal funding -- but it must provide the institution notice of its noncompliance and an opportunity to correct the problem before any funding is withdrawn. As a result, the threat of administrative enforcement does very little to inspire institutions to proactively comply. Why would they?  Compliance is often expensive and unpopular. If you have the choice between doing it now, or maybe having to do it later because OCR has shown up and said, "this is what you have to do in order to comply," why would anyone choose now? Thus, activists filed mass complaints not to be annoying, but because they are the only thing that gets institutions to focus on their compliance obligations.

So while I see the agency's point of view about efficiency and maintaining control over their own enforcement priorities, I am concerned that this new enforcement policy simply makes it even easier for institutions to put off compliance. By cutting off enforcement at the knees, it sustains the persistent gap between what the law clearly requires and what educational institutions actually do in practice.