OCR INVESTIGATIONS: FROM SOUP TO NUTS

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1 OCR INVESTIGATIONS: FROM SOUP TO NUTS Missouri School Board Associations Annual Conference In Cooperation with Missouri Association of School Administrators Friday, October 2, 2015 Presented by: Jeffrey St. Omer Member, Lewis Rice LLC Grant Wiens Member, Lewis Rice LLC Summary Outline of the OCR Investigation Process I. General Information The Office of Civil Rights for the U.S. Department of Education ( OCR ) is the federal enforcement agency responsible for investigating complaints of discrimination by educational institutions against individuals on the basis of race, color, national origin, sex, disability and age. Complaints are investigated by OCR through ten regional enforcement offices. Along with Iowa, Kansas, Nebraska, North Dakota, and South Dakota, Missouri schools are covered by an enforcement office located in Kansas City. For more information, OCR s Case Processing Manual is available on the main website for the Department of Education. II. Complaint Submitted to OCR Prior to investigating a complaint of discrimination, OCR must make an initial determination whether it has legal authority over the matter. If the written complaint fails to allege a violation of one of the following laws, OCR will dismiss without investigation: Title VI of Civil Rights Act of 1964 Title IX of Civil Rights Act of 1972 Section 504 of Rehabilitation Act of 1973 Age Discrimination Act of 1975 Title II of the Americans with Disabilities Acts of 1990 Boy Scouts of America Equal Access Act of 2001 (part of NCLB)

2 In addition to lacking legal authority, OCR may also dismiss or close a complaint for any of the following reasons: Complaint is being investigated by another government civil rights agency or through a state s internal grievance procedure (e.g., a due process complaint filed under IDEA); Complaint was filed more than 180 calendar days from the date of the last act of alleged discrimination (absent an exception or waiver); Complaint lacks sufficient detail or is too speculative for OCR to infer that discrimination may have occurred; Same allegations have already been investigated and resolved in a previous complaint; Similar allegations have been previously filed by the same individual as part of a pattern of complaints; OCR has recently addressed the same issues in the school district through another complaint or a compliance review; or Individual decides to withdraw the complaint. If a complaint is dismissed or closed, OCR will provide a written notice and explanation to the complainant. A school district will not be provided notice by OCR of a complaint that is submitted but ultimately dismissed or closed without investigation. III. Notice of Complaint to District OCR will initiate an investigation by sending a letter to the superintendent to provide notice that a complaint has been filed alleging discrimination by the school district. The letter is purposefully vague about the actual complaint and will typically include only the following information: OCR s jurisdiction with applicable regulatory citations; General description of the allegations (usually one or two sentences); Comprehensive data and document request; Deadline for a written response; Information about possible early resolution process; and Contact information for the OCR staff person responsible for the investigation. Apart from what limited information is included OCR s notice letter, a school district will not receive a copy of the documentation or information submitted to OCR by the complainant. A. Contact OCR immediately. The OCR staff person responsible for the investigation will be able to identify the student or complainant and the location of the alleged discrimination. Additionally, OCR is often willing to share more specific information about the underlying allegations. Page 2

3 B. Identify a point person. A school district is best served by designating a single person to handle the complaint, from interacting with OCR to coordinating the document collection to preparing the written response. The point person should be independent and neutral (i.e., not connected to the allegations or underlying incident). Depending on circumstances, a district should consider legal counsel for this role. Alternatively, the point person could be the special education director, a school counselor, or a building-level administrator. C. Issue a litigation hold. Once a school district is aware of the specific allegations, it should send a written directive to all relevant individuals (including administrative staff, building sites, and departments) ordering the preservation of all records related to the student and the alleged incident. Preserved records should include internal and external s and all student files (academic, discipline, special education). D. Instruct against retaliation. District staff should avoid any action that is or appears to be retaliatory against the complainant or the student because of the OCR complaint. E. Notify insurance carrier. Because OCR findings are admissible evidence in civil litigation, initial OCR complaints and investigations typically qualify for insurance coverage. IV. Internal Investigation & Data Collection As part of the written notice provided by OCR, a school district will receive a detailed request for documents and information related to the underlying allegations. This request typically asks for district-wide policies and procedures, training materials, student handbooks, and more targeted information related to the student and incident. Given OCR s regulatory authority, these requests are can be quite broad in nature and often require an onerous amount of time to fulfill. A comprehensive collection effort will usually involve a review of files from multiple locations, conversations with several individuals, and a review of electronic records (e.g., internal and external s, academic files). As part of the data collection process, a school district can also begin its own investigation into the underlying allegations. Internal interviews (e.g., witnesses, participants, administrators, teachers, students) can provide a district with a better idea of what actually happened and whether the allegations have any merit. This information will help the district to prepare its written response to OCR as well as make a decision about how best to resolve the matter. A. Determine if response deadline is feasible. The deadline for responding to a document request from OCR is short, sometimes just two to three weeks. Responses can often require gathering and reviewing hundreds of pages (hard copies and electronic files), as well as talking to numerous individuals about their involvement in the alleged incident. OCR may be willing to revise its data request and/or extend its response deadline if a school district can articulate why a revision or extension is appropriate. B. Conduct internal interviews. The point person handling the district s response to OCR should speak with all individuals who have information related to the student and underlying Page 3

4 allegations. This can include students, staff, administrators and anyone else who may have witnessed certain events. In general, belated witness statements should not be created and collected at this stage. If an individual did not provide a witness statement at the time of the underlying incident, it may be counterproductive to create a witness statement after an OCR complaint has been filed. Additionally, individuals should not be promised confidentiality as part of the interview process. It may be necessary for a school district to use the information obtained through the interviews as part of its written response or subsequent legal defense. C. Review all documents. A school district should never produce a document without knowing what it says. Each and every document should be carefully reviewed prior to submission to OCR. A detailed review will make sure that the district is aware of all possible issues and evidence in a case. In rare instances, there may be a reason to redact or withhold a document, although OCR generally has investigatory authority to review un-redacted student records (and some employee records too). D. Determine if additional documents are beneficial. During an internal investigation, a school district will often review more documents than what is responsive to OCR s requests. Depending on the allegations and what the documents conclusively show, a district should consider whether it is beneficial to provide the additional documents beyond what is requested by OCR. Generally speaking, additional documents should only be included if they are definitively positive for the district and directly address the underlying incident. V. District s Written Response Even more so than the data and document collection, the written response is a school district s opportunity to present its side of the story and set out all relevant facts related to the student and the complaint. Until OCR receives the requested information and the written response from a school district, the OCR investigator will have only reviewed whatever limited information was provided by the complainant. This information can be one-sided, incomplete, or incorrect. The written response should provide context for OCR and offer a complete picture of the student and the underlying allegations. Ideally, the written response will include all of the steps taken by the school district to treat the student fairly and ensure that the student received a free appropriate education. A. Offer facts and law, not argument. Although some argument may be necessary, the most persuasive written responses rely overwhelmingly on specific facts and governing law. Whenever possible, use references to existing documents to support a factual statement and references to a dispositive case to support a legal conclusion. B. Provide context for bad facts. If a particularly problematic document is discovered during collection, the written response is the opportunity to give context to that document. As part of the response, provide the necessary detail to explain how that document should be interpreted and what other actions the district took to mitigate the problematic document. C. No two written responses should be the same. Every OCR complaint should be reviewed and handled on a case-by-case basis to determine what type of facts should be included in the written response. Just because a written response in a previous OCR complaint included certain Page 4

5 information or used a certain tone does not mean that all future written response for the school district should rely on that same type of information or adopt the same tone. VI. Request for Additional Information & Interviews After reviewing the materials provided by a school district as part of the data request and written response, the OCR investigator may request further records or subsequent interviews with specific district personnel. OCR interviews can be conducted by phone or on-site. The interviews are often less than an hour, though the length will vary depending on the individual interviewed and his or her involvement in the underlying incident. A. Prepare for the interview. An interviewee should review relevant documents prior to the interview date. Usually, the incident occurred months earlier and some type of refresher will be beneficial. Be careful, however, not to over-educate the interviewee. The individual being interviewed is only responsible for her specific involvement in the incident and should not be apprised of information she would not otherwise know. The interview is an opportunity for OCR to gather more facts, not an opportunity for the school district to provide a complete defense of its actions. B. Sit in on the interview. Often, the OCR investigator will allow someone from the school district to sit in on the interviews. Although the district cannot participate in the interviews (e.g., ask the individual additional questions), observing an interview can offer insight into the areas of focus for OCR and allow for better preparation for future interviews. VII. Resolution of Complaint There are several ways that an OCR complaint can be resolved. Early Complaint Resolution. An Early Complaint Resolution ( ECR ) provides an early opportunity for the parties to voluntarily resolve a complaint. If appropriate, the ECR process is often suggested by OCR prior to the start of any investigation. During the ECR process, OCR will provide a mediator (who is a different individual than the assigned investigator) to serve as an impartial facilitator. The complainant and school district will attend a mediation led by the OCR facilitator. The entire mediation is confidential and no information shared with the facilitator will be provided to the OCR investigator (if a resolution is not reached). If mediation is successful, the parties will sign a confidential settlement agreement and a general letter will be provided to OCR with notification that the matter has been amicably resolved. If mediation is unsuccessful, OCR will resume investigation into the complaint. Rapid Resolution. A Rapid Resolution ( RR ) is a processing approach that allows for an expedited investigation and resolution. The RR process requires consent from the complainant and a determination from OCR that the complaint is appropriate for such an abbreviated timeline. In Page 5

6 certain substantive areas as determined by OCR, the RR process may be used to resolve complaints in the following circumstances: School district has already taken action to resolve the complaint and such action does not require future monitoring by OCR; or School district has already taken action to resolve the complaint and has expressed a willingness to be monitored by OCR. 302 Agreements. At any point during an investigation, OCR and a school district can enter into a resolution agreement (under Section 302 of the Case Processing Manual). Either OCR or the district can initiate discussion of a possible resolution agreement. During negotiations of a 302 Agreement, OCR will identify the allegations and areas of concern that it has uncovered during investigation, and will present a proposed agreement. OCR and the school district can offer counterproposals for up to 30 days from the initial date of negotiation. If an agreement is reached within 30 days, OCR will monitor the agreement until all of the district s obligations have been met. If an agreement cannot be reach, OCR will resume its investigation into the complaint. Letter of Findings. If the parties do not resolve a complaint through an ECR, RR, or 302 Agreement, OCR will determine at the conclusion of its investigation whether there is sufficient evidence (based on a preponderance of the evidence standard) to support a conclusion that the school district failed to comply with one of the statutes enforced by OCR. OCR will issue a Letter of Findings explaining its conclusion. If OCR concludes that there is insufficient evidence to support a finding of noncompliance, the case will end upon issuance of the Letter of Findings. If OCR determines that there is sufficient evidence to support a finding of noncompliance, OCR will propose a resolution agreement requiring the school district to remedy the individual discrimination and any systemic issues. If the district agrees to the proposed resolution, OCR will monitor the agreement until the district is in compliance and then the case will close. If the school district will not voluntarily enter into the proposed resolution agreement, OCR will issue a Letter of Impending Enforcement Act, outlining the following: Allegations and issues investigated; Findings of fact for each allegation and issue; Description of OCR s efforts to obtain voluntary compliance; Notice of possible deferral of federal financial assistance for the district; and Notice of the complainant s right to sue the district. Practice Pointer A. Negotiate. Typically, OCR will take the lead in drafting a proposed RR or 302 Agreement. A school district should feel comfortable negotiating revisions to the proposed agreement, particularly Page 6

7 if the district believes that OCR s proposals are unnecessarily onerous, impermissibly broad, or impractical given the deadline for completion. B. Monitoring is ongoing. Most resolutions through the RR process or a 302 Agreement will include obligations for the school district to fulfill, including remedies for the specific complainant and some type of district-wide action (e.g., staff training, policy changes). In negotiating these obligations and implementation timelines, a district should remember that OCR will be monitoring fulfillment. It is important for districts to negotiate and agree to timelines and reporting requirements that are feasible. C. Release and waiver. Any agreement reached during the ECR process should include a release and waiver of claims. This will prevent a complainant from subsequently initiating a lawsuit or another administrative claim against the district or district personnel related to the underlying allegations. Page 7

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