Recent Internal OCR Guidance Signals Scale-Back of Obama Administration Investigative Strategies

Jun 16, 2017

Yesterday, it became public that the Office for Civil Rights of the U.S. Department of Education has issued new internal guidance regarding investigations conducted by that office.   As the memorandum notes, the guidance is effective “immediately” and “applies to all complaints currently in evaluation or investigation, as well as newly-filed complaints.”

There are two main policy directives of note:
“¢      Increased discretion and control over investigations by Regional Offices ““ the guidance removes requirements that certain types of complaints be automatically forwarded to Headquarters.   It also grants discretion to investigators to make individualized determinations about the scope of data required when doing investigations.   For example, OCR had been operating under a directive to obtain three (3) years of past complaint data/files in order to assess a recipient’s compliance.   That requirement was removed, with a statement that “the investigative team. . . is empowered to determine what comparative data. . .are necessary. . .”
“¢      A movement away from “systemic investigations” ““ the guidance states that OCR will only pursue a “systemic” approach “where the individual complaint allegations themselves raise systemic or class-wide issues or the investigative team determines a systemic approach is warranted through conversations with the complainant.”

Under the Obama administration, much of the investigative decision-making was centralized with OCR Headquarters in Washington, D.C.   This centralized decision-making often lead to delays and frustration by all involved as investigators waited for instructions and guidance from D.C.   While it remains to be seen how local Regional Offices will interpret and effectuate this policy, it does seem clear that some control is returning to the Regional Offices.   The guidance states that “[t]hese instructions in particular are designed to empower our investigative staff to clear case backlogs and resolve complaints within a reasonable time-frame, thus providing effective resolution and justice to complainants and recipients.”