Most of the cases the Department of Education’s Office for Civil Rights (OCR) handles involve disability discrimination, including claims that a school failed to implement an IEP or Section 504 plan. In our experience, however, OCR is often an afterthought for school employees who work in the field, and when OCR comes knocking school leaders often feel unprepared. Read on for five tips to help you feel more confident the next time you receive notice of an OCR complaint.
- Request a copy of the complaint. This should be your first step when you receive a notification letter from OCR saying that an investigation has been opened. Although OCR will heavily redact the complaint, a copy will be provided under 2018 updates to OCR’s Case Processing Manual (CPM). Arguably, under the text of the CPM, OCR should provide you a copy of the complaint immediately and without redaction, but we know of no OCR office taking that approach. Send an email asking for the complaint to be provided to you within at least 10 days, which is an informal timeline many OCR offices are using under the new CPM. Because your response to the complaint is often due 15 to 20 days after you receive the OCR letter, it is vital to make this written request for the complaint quickly.
- Ask questions right away. The notification letter you receive will identify a team member who is assigned to your case, either an attorney or an investigator in the OCR office with jurisdiction over your complaint. You can always submit a Freedom of Information Act, or FOIA, request for records and information about your case, but the 20-day response timeline and the heavy redactions OCR will make usually render FOIA responses ineffectual. You can, however, reach out to the OCR team member assigned to your case to ask questions about the case, and in many cases the OCR team member will oblige you. Ask about the allegations, what facts are alleged to support it, and whether resolution through informal means is possible. More on that next . . . .
- Consider RRP and FRBP. OCR has two informal methods to resolve complaints, its Rapid Resolution Process, or RRP, which allows OCR to negotiate directly with a responding school to effectuate compliance without a full investigation, and Facilitated Resolution Between the Parties (FRBP), which is OCR’s mediation program. RRP can be particularly useful as it can allow OCR and the school to reach a resolution without involving the complainant and, in some cases, without a resolution agreement. (Read: No long, drawn out monitoring by OCR!) No school should respond to a complaint without first considering whether RRP or FRBP is appropriate and useful, as these methods can save time, money, and energy as compared to a full-blown OCR investigation. You should feel free to advocate to use one of these processes, even if the OCR team member does not raise it as an option.
- Make your case to OCR early. Don’t wait until you submit a written response to clarify issues in your case to the OCR team. Remember that up to this point, the only side of the story that OCR has heard is the complainant’s. When you talk to your assigned OCR team member to get more information about the complaint, be ready to briefly share your side of the story. If you know little about the case, you may need to do step 5 before you make that call . . . .
- Collect documents, even if they aren’t responsive to OCR’s request. Each OCR notification letter includes a request for documents and other information related to the complaint. Your team should collect all documents and information related to the case, even if not specifically requested by OCR, and send them to you for review. This will allow you to see the full picture and mount your best defense, which may rely on issues or documents the complainant never identified to OCR.
Remember that although OCR is a neutral party, meaning that its attorneys and investigators do not represent the complainant or the school district, OCR in reality provides significant help to the complainant along the way, teasing out arguments that could be made in the complainant’s favor, helping the complainant identify evidence to support his case, and reminding the complainant of what he can do to prevent dismissal or other negative impacts on the cases. Because of this often one-sided advocacy, it is particularly important that the school employee (or, in the best case scenario, Board attorney) who serves as OCR’s contact take these and other steps to help put the best foot forward with OCR and maximize the chances of success in defending against a complaint.