Department of Education Walks Back March Changes to Case Processing Manual

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Department of Education Walks Back March Changes to Case Processing Manual

Alert Date: November 27, 2018

By: William J. Zee
Related Practice Areas: Education, Higher Education and K-12

Reversing some of the significant changes made in March, last week the U.S. Department of Education once again revised the Office of Civil Rights Case Processing Manual.

“Since joining the OCR team in June, I’ve reviewed our Case Processing Manual and received important and constructive feedback on it,” said Kenneth L. Marcus, assistant secretary for civil rights. “While we continue to work to improve the timeliness of OCR’s case processing, we have determined that additional revisions will help improve our work and allow us to be more responsive to students, stakeholders and our staff.”

Highlights of the revisions:

Elimination of “Mass Filer” Provision

Instituted in March 2018, it enabled the automatic dismissal of complaints that were part of a pattern of claims placing an unreasonable burden on OCR’s resources. This controversial provision resulted in the dismissal of hundreds of cases. Those changes were challenged in federal court by the Council for Parent Attorneys and Advocates, the NAACP, and the National Federation of the Blind. In addition to removing the automatic dismissal option, OCR has indicated it will conduct investigations into complaints that were dismissed over the past nine months under the eliminated provision.

Restoration of Appeal Rights

The updated manual restores a filer’s right to appeal findings of insufficient evidence and certain types of dismissals. It also provides recipients with the opportunity to respond to appeals. However, the revised manual does not permit schools to appeal, retains language added in March limiting investigations to single allegations, and encourages parties to work to resolve complaints themselves with OCR assistance.

First Amendment

The revised OCR manual specifically provides that the agency must "comport with the First Amendment when investigating and resolving complaints.” This revision could have significant impact on the processing of claims targeting speech. It is still unclear what the impact of this change will be for schools.

Copy of Complaint

It now appears that a copy of the complaint should be provided to schools even without a specific request. Although the March 2018 revisions to the manual indicated that a copy of the complaint would be provided upon request, implementation of this provision varied. The updated manual provides that “a copy of the complaint will be provided to the recipient.” It remains to be seen how OCR will implement this provision, and whether or not a specific request under the Freedom of Information Act will be required.

If you have any additional questions regarding the changes outlined above, or any other aspect of the OCR process, or if we can provide any assistance to review your current policies, procedures, and practices, please do not hesitate to contact me or any of the attorneys in Barley Snyder’s Education Practice Group.