OCR Case Resolution and Investigation Manual
INTRODUCTION
The Office for Civil Rights' (OCR) core mission as a law enforcement agency
is to ensure that recipients of federal funds do not engage in discriminatory
conduct. The Case Resolution and Investigation Manual (CRIM) provides OCR with
the procedures to promptly and effectively investigate and resolve complaints
against recipients allegedly engaging in discriminatory practices.
Updated June 2004
TABLE OF CONTENTS
Article I EVALUATION OF THE COMPLAINT
Section 101 Determine What Constitutes a Complaint
Section 102 Acknowledge the Complaint
Section 103 Assign a Case Number and Establish a File for Each
Complaint
Section 104 Determine Subject Matter Jurisdiction
Section 105 Determine Personal Jurisdiction
Section 106 Determine Whether There is Sufficient Factual Basis
to Proceed
Section 107 Determine Whether the Complaint is Timely
Section 108 Determine Whether A Waiver Should Be Granted
Section 109 Determine Whether to Proceed Further with Complaint
Resolution
Section 110 Notify the Parties Following Complaint Evaluation
Article II PRE-INVESTIGATION EARLY COMPLAINT RESOLUTION
(ECR)
Section 201 Informing Parties of the ECR Process
Section 202 ECR Resolution
Section 203 Investigation When ECR is not Achieved
Article III INVESTIGATION AND RESOLUTION OF THE COMPLAINT
AND ISSUING LETTERS OF FINDING
Section 301 Case Planning
Section 302 Investigative Determinations
Section 303 Monitor Post-Investigation OCR Agreements
Section 304 Notify the Department of Justice or EEOC when
Required
Section 305 Prepare a Letter of Findings
Section 306 Issue a Violation Letter of Findings
Article IV INITIATING ENFORCEMENT ACTION
Section 401 Initiate Administrative Proceedings Where Appropriate
Section 402 Refer to DOJ Where Appropriate
Section 403 Move to Enforcement for Denial of Access
Section 404 Move to Enforcement for Failure to Comply with
OCR Agreement
Article V COMPLIANCE REVIEWS
Article VI APPENDICES
Section 601 Special Intake Procedures
(a) Age Discrimination Complaints
(b) Title VI Complaints Against Proprietary Schools
(c) Title VI and Title IX Employment Complaints
(d) Title II ADA Complaints (Other than Employment)
(e) Disability Employment Complaints
Section 602 Data Collection and Information Gathering
(a) Generally
(b) OCR's Authority for Obtaining Information
(c) Requests for Records
(d) Interviews
(e) Limitations on Obtaining Information
Section 603 Freedom of Information Act and Privacy Act
Section 604 Recipients Operating Under Federal Court Order
(a) United States a Party
(b) United States Not a Party
Section 605 Early Complaint Resolution
Section 606 Information about OCR's Complaint Resolution
Procedures
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Article I EVALUATE THE COMPLAINT
If OCR determines that written information provided to the U.S. Department
of Education (the Department) is a complaint, OCR will establish whether it
has sufficient information to proceed to complaint resolution. For additional
information on the complaint resolution process see Section
606.
All information within investigation files is subject to Freedom of Information
Act and Privacy Act. (See Section 603.)
Section 101 Determine What Constitutes a Complaint
A complaint is a written or electronic statement to the Department alleging
that the rights of one or more persons have been violated and requesting that
the Department take action. Complaints may be filed online as well as by mail,
fax, or in person. Some correspondence that OCR receives, even if it concerns
an alleged civil rights violation, may not be a complaint. Immediately upon
receipt, OCR will determine whether or not the correspondence is a complaint.
Until OCR is able to accept electronic signatures, if a complaint is filed
electronically, by e-mail or fax, a signed consent form must be secured in
lieu of a signed complaint form.
The following are not complaints:
(a) Oral allegations that are not reduced to writing and signed;
(b) Anonymous correspondence;
(c) Courtesy copies of correspondence or a complaint filed with others; or
(d) Inquiries that seek advice or information but do not seek action or intervention
from the Department.
Section 102 Acknowledge the Complaint
A letter will be sent to the complainant to acknowledge receipt of the complaint.
The complainant will be informed that the complaint will be evaluated to determine
whether OCR has authority to investigate the allegations. OCR also will inform
the complainant that the complaint is being evaluated and that further communications
about the complaint will occur in the near future. If not already provided
by the complainant, a consent form will be included with OCR's acknowledgement
letter. The response will also include a copy of "Information About OCR's
Complaint Resolution Procedures."
Section 103 Assign a Case Number and Establish
a File for Each Complaint
The case opening date is the date a complaint is received by the appropriate
OCR Enforcement office. Complaints received by email or by fax over a weekend
or on a holiday will be considered received on the next workday. Upon receipt
by the appropriate OCR Office, OCR assigns the incoming complaint a case number.
The office establishes a case file for each complaint. The complaint, however
it was filed, must be included in the case file.
In cases of multiple complaints, the following guidelines should be applied
in determining how many case numbers should be assigned:
(a) The office will assign a separate case number to each recipient
[1] named in the complaint. If, during the course of the
investigation, OCR determines that other recipients are involved in the alleged
acts of discrimination, the office will open separate complaints and assign a
case number for each such recipient; the case opening date for such complaints
is the date determined by OCR that the complaint should be opened.
(b) Complaints from more than one person against the same recipient
that contain different allegations are treated as separate complaints.
(c) Complaints filed by more than one person that raise substantially
identical allegations against the same recipient may be treated as one complaint
and assigned one case number or, if received later, incorporated into an existing
complaint. If the complaints raise individual allegations, the office should assign
separate case numbers.
(d) New allegations filed by the same person against the same
recipient after complaint resolution has begun are reviewed on a case-by-case
basis to determine whether the allegations should be added to the open complaint
or treated as a new complaint.
Section 104 Determine Subject Matter Jurisdiction
OCR must have jurisdiction over the subject matter of the complaint. For
OCR to establish jurisdiction, the complaint must allege, or OCR must be able
to infer from the facts given, an allegation of discrimination based on 1)
race, color, national origin, sex, disability or age, 2) discrimination in
violation of the Boy Scouts of America Equal Access Act, or 3) retaliation
as a result of filing or participating in the resolution of a complaint. OCR
has jurisdiction under the following statutory authorities:
(a) Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000d et seq., 34 C.F.R. Part 100
Under Title VI, OCR has jurisdiction to investigate complaints involving
program participants (e.g., students, parents) and certain employment complaints
based on race, color, or national origin. With respect to employment, OCR
has jurisdiction if (1) the alleged discrimination could adversely affect
program beneficiaries on the basis of race, color, or national origin, or
(2) a primary objective of the federal financial assistance is to provide
employment. See Section 601(b) for processing Title
VI complaints with respect to proprietary vocational schools. For employment
complaints, OCR follows procedures consistent with the employment coordinating
regulations; 28 C.F.R. Part 42 and 29 C.F.R. Part 1691. See Section
601(c) regarding these procedures.
(b) Title IX of the Education Amendments of 1972, as amended,
20 U.S.C. §§1681 et seq., 34 C.F.R. Part 106
Under Title IX, OCR has jurisdiction to investigate complaints involving
program participants (e.g., students, parents) and employment complaints
based on sex that involve educational programs and activities. For employment
complaints, OCR follows procedures consistent with the employment coordinating
regulations; 28 C.F.R. Part 42 and 29 C.F.R. Part 1691. See Section
601(c) regarding these procedures.
(c) Section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. §794, 34 C.F.R. Part 104
Under Section 504, OCR has jurisdiction to investigate complaints involving
program participants (e.g., students, parents) and employment complaints
based on disability. For employment complaints, OCR follows procedures consistent
with the employment coordination regulations, 28 C.F.R. Part 37 and 29 C.F.R.
Part 1640. See Section 601(d) regarding these procedures.
(d) Age Discrimination Act of 1975, 42 U.S.C. §§
6101 et seq., 34 C.F.R. Part 110
Under the Age Discrimination Act, OCR has jurisdiction to investigate
complaints involving program participants (e.g., students, parents). See Section
601(a)2 for instructions regarding referral of complaints to the Federal Mediation
and Conciliation Services (FMCS) before investigation. OCR does not have jurisdiction
over employment under the Age Discrimination “Act. See Section
601(a) for procedures on referral to EEOC.
(e) Title II of the Americans with Disabilities Act
of 1990, 42 U.S.C. §§ 12131 et seq., 28 C.F.R. Part 35
Title II prohibits discrimination on the basis of disability by public
entities, whether or not they receive federal financial assistance. OCR
has jurisdiction over Title II complaints involving program participants
(e.g., students, parents) against public elementary and secondary education
systems and institutions, institutions of higher education and vocational
education (other than schools of medicine, dentistry, nursing, and other
health-related schools), and libraries. OCR also has jurisdiction over employment
complaints against these entities, subject to the provisions of the employment
coordination regulations at 28 C.F.R. Part 37 and 29 C.F.R. Part 1640, which
address coordinating disability employment complaints with DOJ and the EEOC.
(See Section 601(d) regarding these procedures.)
(f) Boy Scouts of America Equal Access Act, 20 U.S.C.
§ 7905, 34 C.F.R. Part 108 (proposed)
Under the Boy Scouts Act, OCR has jurisdiction over complaints alleging
denial of access to, or other discrimination against, the Boy Scouts or
other Title 36 U.S.C. youth groups. OCR's jurisdiction under this act is
limited to public elementary schools, public secondary schools, LEAs and
SEAs that have a designated open forum or a limited public forum and that
received funds from the Department.
Section 105 Determine Personal Jurisdiction
OCR must also have jurisdiction over the institution alleged to have discriminated.
OCR has jurisdiction over institutions that receive federal financial assistance
from the Department and institutions for which OCR has been delegated authority
from other federal agencies. If a complaint is not filed against an institution
OCR covers or does not state a claim under the statutes identified above,
OCR will not proceed further. When appropriate, the Enforcement Office will
refer the complaint to another agency.
Section 106 Determine Whether There is Sufficient
Factual Basis to Proceed
In order for OCR to proceed, the complainant must allege facts sufficient
to state a claim that, if true, would constitute a violation of a statute
that OCR enforces. Moreover, the complainant must provide OCR with sufficient
information to support the factual basis for the complainant's belief that
discrimination has occurred and when it occurred. Generally, statistical data
alone are not sufficient, absent allegations that actions by a recipient,
if true, would violate one of the laws that OCR enforces. The complaint should
include a written explanation of what happened; a way to contact the complainant
(if complaint is filed by e-mail OCR must have the complainant's actual name
and address); identification of the person or group injured by the alleged
discrimination; and identification of the person or institution alleged to
have discriminated.
OCR may contact the complainant by phone to obtain missing but necessary
information. A record of contact summarizing the conversation should be placed
in the case file. In the alternative, OCR will inform the complainant in writing
of the information needed, and inform the complainant that the complaint will
be closed if the information is not received within 20 calendar days of the
date of the request. Following either method of contact, if the necessary
information is not provided within 20 days, the complaint will be closed and
the complainant informed in writing. In certain circumstances missing information
may be found through other sources (e.g., websites, public information).
OCR staff will provide appropriate assistance to complainants, including
(but not limited to) persons with disabilities and individuals of limited
English proficiency. If the complainants have difficulty preparing a complaint
that meets OCR's standards, OCR will provide the complainants with appropriate
assistance regarding the nature of their rights and of the OCR investigation
process.
If the complaint contains sufficient information with respect to at least
one allegation, but lacks sufficient information with respect to other allegations,
OCR will attempt to obtain the missing information, as described above. Allegations
lacking sufficient information that is not supplied within the 20-day timeframe
will be closed; OCR will initiate complaint resolution only for those allegations
for which sufficient information has been provided.
When disclosure of the identity of the complainant is necessary,
OCR will require written consent before proceeding to complaint resolution. OCR
does not need a specific form from the complainant, but does need written confirmation
that the complainant authorizes OCR to disclose the complainant's name. A complainant
filing on behalf of another person is responsible for securing the written consent
from that individual. Where the person is a minor (under 18) or a legally incompetent
adult, the consent form must be signed by that person's parent or legal guardian.
Parental or legal guardian consent may not be required for persons under 18 if
they are emancipated under state law and are therefore considered to have obtained
majority. Proof of emancipation or incompetence must be provided. The written
consent should include an assurance of cooperation with OCR's investigation and
complaint resolution activities. OCR will inform the complainant that the complaint
will be closed if written consent is not received within 20 calendar days of the
date of request. If OCR does not receive such timely written consent, the complaint
will be closed, and the complainant informed in writing.
Section 107 Determine Whether the Complaint is
Timely
OCR will take action only with respect to those complaint allegations that
have been filed within 180 calendar days of the date of the last act of alleged
discrimination unless the complainant is granted a waiver under Section 108.
The filing date of a complaint is the earlier of the following:
(a) the postmark of the complaint (or date of the e-mail, fax or
electronic submission);
(b) the date the complaint is received by any Department office; or
(c) for Title II complaints referred from DOJ, the date the complaint is received
by DOJ.
Timely complaints may include those where the complainant alleges a continuing
discriminatory policy or practice. The person or team evaluating the complaint
shall make the determination of the existence of a continuing discriminatory
policy or practice, in consultation with legal staff.
Section 108 Determine Whether a Waiver Should be
Granted
If a complaint is not filed in a timely manner, OCR will notify the complainant
of the opportunity to request a waiver. The Office Director, or designee,
may grant a waiver of the 180-day filing requirement under any of the following
circumstances:
(a) The complainant could not reasonably be expected to know
the act was discriminatory within the 180-day period, and the complaint was filed
within 60 days after the complainant became aware of the alleged discrimination;
(b) The complainant was unable to file a complaint because of
incapacitating illness or other incapacitating circumstances during the 180-day
period, and the complaint was filed within 60 days after the period of incapacitation
ended;
(c) The complainant filed a complaint alleging the same discriminatory
conduct within the 180-day period with another federal, state, or local civil
rights enforcement agency, and filed a complaint with OCR within 60 days after
the other agency had completed its investigation or notified the complainant that
it would take no further action;
(d) The complainant filed, within the 180-day period, an internal
grievance alleging the same discriminatory conduct that is the subject of the
OCR complaint, and the complaint is filed no later than 60 days after the internal
grievance is concluded; or
(e) Unique circumstances generated by OCR's action have adversely
affected the complainant.
If a waiver is not requested or requested but not granted, the case will
be closed and the complainant informed of the decision.
Section 109 Determine Whether to Proceed Further
with Complaint Resolution
There are a variety of reasons why OCR will decline to proceed further with
complaint allegations:
(a) The complaint has been investigated by another agency and
the resolution of the complaint meets OCR regulatory standards; i.e., all allegations
were investigated, appropriate legal standards were applied, and any remedies
secured meet OCR's standards.
(b) The complaint allegations are foreclosed by previous decisions
of the federal courts, the Secretary of Education, the Civil Rights Reviewing
Authority, or OCR policy determinations.
(c) OCR obtains credible information at any time indicating
that the allegations raised by the complaint have been resolved, or are moot and
there are no class-wide allegations. In such a case, OCR will attempt to ascertain
the apparent resolution. If OCR determines that there are no current allegations
appropriate for further complaint resolution, the complaint will be closed.
(d) The Enforcement Office determines that its ability to complete
the investigation is substantially impaired by the complainant's or injured party's
refusal to provide information necessary for investigation of the complaint. The
Office will so inform the complainant or injured party in writing as soon as possible.
The letter must also inform the complainant or injured party that if the necessary
information is not provided within 20 days of receiving the letter, OCR will close
the case.
There are a variety of reasons why OCR may decline to proceed
further with complaint allegations:
(e) The complaint is so weak, insubstantial, or lacking in detail
that it is without merit, or so replete with incoherent statements that it, as
a whole, cannot be considered to be grounded in fact.
(f) The complaint is a continuation of a pattern of previously
filed complaints involving the same or similar allegations against the same recipient
or other recipients that have been found factually or legally insubstantial by
OCR.
(g) The same allegations and issues of the complaint have been
addressed in a recently resolved OCR complaint or compliance review.
(h) The complainant decides to withdraw his or her complaint.
If the complaint included class allegations, the office may:
- close out the entire complaint;
- pursue resolution of the class allegations; or
- use the information to target future compliance review activity.
(i) Litigation has been filed raising the same allegations. An OCR complaint
may be re-filed within 60 days following termination of the court proceeding
if there has been no decision on the merits or settlement of the complaint
allegations. (Dismissal with prejudice is considered a decision on the merits.)
(j) The same complaint allegations have been filed with another federal,
state, or local agency, or through a recipient's internal grievance procedures,
including due process proceedings and OCR anticipates that the recipient
will provide the complainant with a comparable resolution process under
comparable legal standards; i.e., all allegations were investigated, appropriate
legal standards were applied, and any remedies secured meet OCR's standards.
The complainant should be advised that she or he may re-file within 60 days
of the completion of the other recipient's action. Generally, OCR's consideration
of such a complaint will not be a de novo investigation of the facts: instead,
OCR will review the evidence to determine whether it constitutes a violation
of a statute that OCR enforces.
(k) Some complaints over which OCR has jurisdiction may be closed when
OCR transfers or refers the complaint to another agency for investigation.
For clarification see Section 601, Special Intake Procedures.
(l) The death of the complainant or injured party makes it impossible to
investigate the allegations fully, or when the death of the complainant
or injured party forecloses the possibility of relief because the complaint
involved potential relief solely for the complainant or injured party.
(m) A complaint, because of its scope, may require extraordinary resources.
In such instances, the Office Director in consultation with the Enforcement
Director and the Deputy Assistant Secretary for Enforcement may consider
treating such a complaint as a compliance review. Similarly, a compliance
review may be the most effective means of addressing multiple individual
complaints against the same recipient. If the Enforcement Office selects
this option, it should discuss the decision with the complainant(s), close
the complaint, assign a compliance review number, and initiate the review
as soon as possible. OCR will provide the complainant(s) with a copy of
the resolution documents upon completion of the compliance review.
Section 110 Notify the Parties Following Complaint
Evaluation
OCR will notify the complainant and, where appropriate, the recipient whether
OCR will proceed:
(a) If OCR decides not to proceed for one of the reasons identified above,
the letter to the complainant (and recipient if appropriate) will explain
the reason for the decision. All such letters will be approved by legal
staff assigned to the case. In addition, for closures under Sections 105
and 109 (a), (b), (c) and (k) the letter will be approved by the Chief Attorney
or a person specifically designated to act on behalf of the Chief Attorney
and the Office Director or designee.
(b) If OCR decides to proceed, the evaluation letters to the complainant
and recipient will contain:
- the basis for the complaint;
- a brief statement of the allegations over which OCR has jurisdiction;
- a brief statement of OCR's jurisdiction over the complaint; and
- an indication of when the parties will be contacted.
Where a letter is sent to the recipient, the document "Information About
OCR's Complaint Procedures" should be attached. OCR's objective is to
complete complaint evaluation promptly. The time required to complete the
evaluation of complaint allegations will vary depending upon the nature of
the complaint and the nature and sufficiency of the information provided to
OCR. For planning purposes, a target date for completion of complaint evaluation
should be established.
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Article II PRE-INVESTIGATION EARLY COMPLAINT RESOLUTION
(ECR)
The ECR process facilitates the resolution of complaints by providing an opportunity
for the parties involved to resolve the allegations that prompted the complaint
voluntarily and without an OCR investigation.
Section 201 Informing Parties of the ECR Process
If the office determines that ECR is appropriate, the complainant and the
recipient are willing to proceed, and an OCR investigation has not yet commenced,
the office will initiate ECR to facilitate an agreement between the recipient
and the complainant. An OCR investigation may be said to commence, within
the meaning of this section, at the sooner of the recipient's response to
OCR's first data request or any on-site review by OCR. OCR does not sign,
approve, or endorse any agreement reached between the parties. However, OCR
should assist both parties in understanding pertinent legal standards and
possible remedies.
Section 202 ECR Resolution
At the conclusion of ECR, OCR should obtain a copy of a statement that the
allegation has been resolved, signed by the complainant, or a copy of any
settlement agreement that has been signed by the complainant. Once resolution
of any allegation has been obtained, OCR may notify the parties in writing
that the allegation(s) has or have been resolved; other outstanding issues,
if any, are to be resolved through the investigation and resolution process.
(See Article III.) A copy of any agreement between the
parties should be attached to the resolution letter. (See Section
605 for more information on the ECR process.)
(a) Breach of Agreements
OCR will not monitor the agreement but will inform the parties that if
a breach occurs, the complainant has the right to file another complaint.
If such a new complaint is filed, OCR will address the original allegations
and will not address the alleged breach of the agreement. To be considered
timely, the new complaint must be filed either within 180 days of the date
of the original discrimination or within 60 days of the date the complainant
obtains information that a breach occurred, whichever date is later.
Section 203 Investigation When ECR is Not Achieved
As soon as it becomes apparent that resolution will not be achieved through
ECR, the complaint must be investigated. The investigation must be completed
in accordance with normal OCR case processing. The office should therefore
monitor the process of ECR carefully to ensure adequate time for investigation
in the event that ECR is unsuccessful. ECR will not be considered after an
OCR investigation has commenced as defined above in Section
201. (See also Section 602.)
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Article III INVESTIGATION AND RESOLUTION OF THE COMPLAINT
AND ISSUING LETTERS OF FINDING
OCR will keep the parties (complainants and recipients) informed of the progress
in resolving a complaint and will communicate with the parties regularly regarding
the status of any unresolved complaint. OCR staff will return the parties' telephone
calls promptly, by the end of the following business day. OCR staff will acknowledge
receipt of the parties' substantive letters and emails promptly and, where a response
is needed, normally provide a response to those letters and emails in a timely
manner. These communications will be documented in the case file.
Section 301 Case Planning
Case planning will begin as early as possible and will be conducted throughout
the life of every case to ensure high quality decisions, prompt resolutions
and efficient use of OCR resources. Planning decisions will reflect sound
legal standards and will be adjusted as necessary to take into account new
information obtained during case processing. Planning will be collaborative
and will include staff such as the attorney and the investigator, and, as
appropriate, a manager.
The following essential elements of case planning will be addressed in every
OCR case and placed in the file (unless inapplicable).
(a) Allegation(s)
(b) OCR's jurisdiction over subject matter and parties
(c) Legal issue(s) and approach
(d) Resolution approach (e.g. ECR, administrative closure, or investigation)
(e) Investigation strategy
(f) Settlement agreement (including alignment of remedies with legal issues)
(g) Efficient use of resources including time
Management is accountable for effective planning and will participate in
critical planning decisions commensurate with the nature and complexity of
the case, to ensure consistent high quality casework.
The case file will contain documentation that supports the decisions made
with respect to each of the applicable essential planning elements. Planning
documentation should be organized so that it can be readily located in the
case file. In routine administrative closures, the required documentation
may be satisfied by the closure letter.
OCR staff will carefully plan all settlement activities. These planning activities
will ensure accountability for high quality and consistency with OCR standards
and will address:
(a) required action(s) to achieve compliance,
(b) dates for completion of specific actions,
(c) verification/reporting requirements (e.g. a description of specific data,
documentation and other needed information),
(d) dates for reporting to OCR, and
(e) efficient resource use including:
- verification methods (e.g. reports/ reviews and/or onsite visits); and
- reporting requirements.
Section 302 Investigative Determinations
A complaint may be resolved in either of the following ways:
- OCR determines that there is insufficient evidence to support
a conclusion of noncompliance; or
- OCR determines that there is sufficient evidence to support a conclusion
of noncompliance and the recipient enters into an agreement.
(For recipients operating under federal court order see Section
604.)
The determination must be approved by the Chief Attorney, or person specifically
designated to act on behalf of the Chief Attorney, and the Office Director,
or designee, and signed by the Office Director, or designee.
(a) Insufficient Evidence Determination
When OCR determines that the evidence does not support a conclusion that the
recipient failed to comply with applicable regulations, OCR will inform the
parties in writing. The resolution letter to the parties should include:
- a statement of the complaint issues addressed by the letter;
- a statement of OCR's jurisdiction over the complaint; and
- sufficient explanation of the pertinent legal standard and factual
analysis so that those receiving the document can understand how OCR
reached its determination.
The case file should include an index of documents in the file and a key
referencing by tab the evidence relied upon in making the determination
The resolution letter will be reviewed and approved by the Office Director
and Chief Attorney, or persons specifically designated as acting on their
behalf.
(b) Request for Review of Determination
- OCR is committed to a high quality resolution of every case. In the
resolution letter, the complainant will be informed that any questions
or concerns about OCR's case determination should be raised with the OCR
staff person whose name appears in the closure letter. In the case resolution
letter, the complainant also will be informed that if he or she still
has concerns after consulting the staff person, he or she may send a request
for reconsideration to the Office Director within 60 days of the date
of the resolution letter and that contacting the staff person neither
tolls the 60-day timeline for filing a request for reconsideration, nor
is a prerequisite to file a request for reconsideration with the Office
Director. The complainant will be encouraged to be as specific as possible,
focusing on factual or legal concerns that could change the disposition
of the case.
Although a complainant generally is expected to submit a request for
reconsideration within 60 days of the date of the resolution letter, the
Office Director may exercise discretion in granting a waiver of the 60-day
timeframe where:
(i) the complainant was unable to submit the request for reconsideration
within the 60-day timeframe because of illness or other incapacitating circumstances
and the request was filed within 30 days after the period of illness or
incapacitation ended; or
(ii) unique circumstances generated by agency action have adversely affected
the complainant.
If a complainant files a request for reconsideration with the Office
Director, the Office Director will issue a written decision on a request
for reconsideration as promptly as possible.
- The response from the Office Director will include notice
that if the complainant is dissatisfied with the decision of the Office
Director, the complainant may submit a request for reconsideration in
writing to the office of the Deputy Assistant Secretary for Enforcement
within 60 days of receipt of the written decision of the Office Director.
The complainant will be advised to be as specific as possible, focusing
on factual or legal questions that could change the disposition of the
case, and advised also that the Deputy Assistant Secretary for Enforcement
will not consider any issues or concerns that were not raised with the
Office Director. If the complainant raises a concern that the Office Director
inappropriately declined to waive the 60-day timeframe and the Deputy
Assistant Secretary determines that the waiver should have been granted,
the Deputy Assistant Secretary will return the case to the appropriate
enforcement office for reconsideration. The decision of the Deputy Assistant
Secretary constitutes the final agency decision.
(c) Resolution Through an Agreement
When OCR determines that the evidence supports a conclusion that the recipient
failed to comply with applicable regulations, OCR will negotiate with the
recipient to reach a voluntary agreement. This agreement may be reached
before or after completion of an investigation but must be based on evidence
of legal non-compliance, rather than unfounded allegations or nonspecific
concerns.
1. Statement of the Case
Whenever we enter into a resolution agreement a Statement of the Case
is required, which the Chief Attorney or designee must approve. The file
will include a Statement of the Case that sets out the issues investigated;
OCR's basis for entering into a resolution agreement; and an explanation
of how the terms of the agreement are aligned with the issues investigated
and are consistent with applicable regulations. A cross-reference and/or
key to the evidence in the case file will also be included.
(i) Agreement Reached During An Investigation
A complaint may be resolved when, in the course of an investigation,
the recipient asks to resolve the complaint. Such a resolution agreement
will require that the recipient admit in some manner that it has acted
as alleged by the complainant or as the investigation thus far has indicated,
although the admission need not be in writing. Agreements predicated
upon admissions are exceptions to the general rule requiring that OCR
agreements must be based on evidence of noncompliance. This admission
should be reflected in the case file.
The provisions of the agreement will be aligned with the complaint
or the investigation information and will be consistent with applicable regulations.
The complaint will be considered resolved and the recipient deemed compliant if
the recipient enters into an agreement that, fully performed, will remedy the
identified violations. A copy of the agreement will be included with the resolution
letter.
(ii) Agreement Reached After Completion of Investigation
When OCR concludes that the recipient has violated applicable law,
OCR will contact the recipient, explain the basis for its conclusion,
and attempt to negotiate an agreement that resolves the identified areas
of noncompliance. The agreement must be consistent with policy and should
be aligned with the identified violation. The complaint will be considered
resolved and the recipient deemed compliant if the recipient enters
into an agreement that, fully performed, will remedy the identified
violations. A copy of the agreement will be included with the resolution
letter. The file will include a Statement of the Case as outlined above.
2. Guidelines for Agreements
Settlement planning will be documented in the case file either separately
or by reference to the resolution agreement.
(i) Settlement Agreements will:
- be signed by a person with authority to bind the recipient;
- be approved by the Chief Attorney or a person specifically designated
as acting on his/her behalf;
- be approved by the Office Director or a person specifically designated
as acting on his/her behalf; and
- include:
- specific acts or steps the recipient will take to resolve compliance
issues;
- dates for implementing each act or step; and
- dates for submission of reports and documentation verifying
implementation.
Where the agreement is memorialized through an exchange of letters, each
of the above elements must be satisfied.
While many agreements may be fully implemented within a short period
of time, some agreements will involve more complex terms that require
additional time to complete. The general expectation is that settlement
agreements should be implemented and monitored for not more than two years
after its issuance of the resolution letter.
(ii) Following are examples of circumstances that may justify extending
the period of implementation and monitoring beyond two years:
- action involving construction of, or major modification to, a recipient's
facilities;
- action that cannot be completed without action by a legislative
body; or
- action requiring the collection and analysis of data lasting more
than one school year.
A copy of the agreement will be attached to the resolution letter.
3. Guidelines for Resolution Letters
In addition, after the agreement is signed, the resolution letter to
the parties should include:
(i) a statement of the complaint allegations addressed by the letter;
(ii) a statement of OCR's jurisdiction over the complaint; and
(iii) sufficient explanation of the pertinent legal standard and factual
analysis so that those receiving the document can understand how OCR
reached its determination.
The resolution letter will be approved by the Chief Attorney, or a person
specifically designated as acting on behalf of the Chief Attorney and
the Office Director, or person specifically designated as acting on behalf
of the Office Director.
(d) Non-compliance Determination Without an Agreement
When OCR's investigation has resulted in a determination that the recipient
has not complied with applicable regulations and the recipient declines
to enter into an agreement, the Enforcement Office will follow the procedures
in Section 305 and 306.
Section 303 Monitor Post-Investigation OCR Agreements
OCR will promptly conduct its monitoring activities consistent with the following
standards and procedures.
(a) Verification of Recipient's Implementation
OCR will obtain sufficient information to determine whether the commitments
made by the recipient have been implemented consistent with the terms of
the settlement agreement. In many instances verification of remedial actions
can be accomplished by careful review of reports, documentation and other
information submitted by recipients and knowledgeable persons. In some instances,
a site visit may be required to verify actions taken by the recipient or
may be deemed the most efficient method of verification. Monitoring site
visits will be conducted as necessary to verify or ensure compliance with
the agreement and will be approved by the Office Director, or by a person
specifically designated to act on behalf of the Director.
(b) Responding to Monitoring Reports
OCR will acknowledge receipt of monitoring reports promptly. OCR will evaluate
the report, and issue a decision as promptly as possible. Substantive responses
to interim monitoring reports (e.g. where OCR determines actions taken are
sufficient or insufficient under the agreement) must be approved by an attorney
and a manager.
(c) Changed Circumstances Affecting Agreements
1. Mootness or Change in Law or Policy
OCR may agree to modify the settlement agreement if it learns that circumstances
have arisen that fully resolve, or render moot, some or all of the compliance
concerns that were addressed by the resolution agreement (e.g., further
remedial action is not required because the student has moved out of the
school district or the programs at issue no longer exist). OCR will also
modify the agreement in response to changes in controlling case law, statutes,
regulations, or agency policy make some or all of the provisions contained
in the agreement no longer legally required.
2. New Compliance Issues
Compliance issues identified for the first time during monitoring should,
in consultation with the Office Director, be addressed by providing technical
assistance or opening a new complaint, or considered for a future compliance
review.
3. Implementation Problems
OCR will promptly provide written notice to the recipient of any deficiencies
with respect to implementation of terms of the agreement, and will promptly
request appropriate action to address such deficiencies. Where a recipient
notifies OCR that it will not carry out a provision of the agreement in
the agreed-upon time or manner, or when OCR reaches this determination,
OCR will take appropriate steps to address the problem. OCR may seek additional
commitments where necessary to address the failure of the recipient to
implement commitments in the original agreement,. Appropriate investigation,
legal and management staff will participate in such determinations to
ensure accountability for high quality and consistency with OCR standards.
If the Enforcement Office and the recipient are unable to resolve any
deficiencies in the implementation of the agreement, the Enforcement Office
should take appropriate action. (See Section 404)
4. Approval of Modifications
Any modifications to the agreement must be appended to the original agreement.
Modification of the agreement provisions, reporting provisions, or timetable
for completion or reporting will be documented in the case file. Extensions
of time of up to 30 days may be granted as authorized by the team leader
or other management representative. Other modifications to the agreement
will be reviewed and approved by the Office Director and Chief Attorney
or persons specifically designated as acting on their behalf. The Office
Director, or person specifically acting for the director, must approve
any modification that would extend the total monitoring period beyond
two years from the date of the original agreement. The recipient and the
complainant will be notified, in writing, of significant modifications
to the agreement.
(d) Conclusion of Monitoring
OCR will conclude the monitoring of a case when it determines that the
recipient has fully implemented the terms of settlement agreement, including
any subsequent modifications to the agreement. The recipient and complainant
will be promptly notified in writing of this decision. The letter informing
the parties that monitoring is concluded will be reviewed and approved by
the Office Director and Chief Attorney or persons specifically designated
as acting on their behalf.
Section 304 Notify the Department of Justice
(DOJ) or EEOC When Required
If a Title II complaint was referred to OCR by the Department of Justice,
OCR will send a copy of the letter resolving the case to DOJ. When a Title
II/504 employment discrimination complaint has been dual-filed with EEOC and
OCR and referred to OCR, OCR will notify the EEOC once the complaint has been
resolved. (For precision please refer to 28 C.F.R Part 37 and 29 C.F.R Part
1640.)
Section 305 Prepare a Letter of Findings
When OCR's investigation has resulted in a determination that the recipient
has not complied with applicable regulations and the recipient declines to
enter into an agreement, the Enforcement Office will prepare a violation letter
of findings. The letter of findings will be prepared in consultation with
the Chief Attorney. The following information should be included, as appropriate,
in the violation
Letter of Findings:
(a) A statement of OCR's jurisdictional authority, including recipient
status and the statutory basis for the investigation;
(b) A statement of each issue and the findings of fact for each, supported
by any necessary explanation or analysis of the evidence on which the findings
are based;
(c) Conclusions for each issue that references the relevant facts, the
applicable regulation, and the appropriate legal standards;
(d) Notice that the LOF is not intended and should not be construed to
cover any other issue regarding the recipient's compliance;
(e) Notice of the time limit on OCR's settlement process and the consequence
of failure to reach settlement; and
(f) If a decision is made to defer final approval of any applications by
the recipient for additional federal financial assistance over what the
recipient is presently receiving, the letter also will provide notice of
such possible deferral. A separate deferral letter will be prepared if appropriate.
The office should consult with the Enforcement Director, the Deputy Assistant
Secretary for Enforcement, and others as appropriate during the preparation
of this draft document and during any negotiations that may occur after issuance
of the LOF.
Section 306 Issue a Violation Letter of Findings
The Chief Attorney and the Office Director will approve the LOF. The LOF,
and other documentation as appropriate, will be shared electronically with
the Enforcement Director. The Enforcement Director will obtain authorization
from the Deputy Assistant Secretary for Enforcement and the Assistant Secretary
prior to instructing the Enforcement Office to issue the LOF.
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Article IV INITIATING ENFORCEMENT ACTION
If OCR is unable to negotiate a settlement with the recipient OCR will initiate
enforcement action. OCR may: (1) initiate administrative proceedings to suspend,
terminate, or refuse to grant or continue and defer ED financial assistance to
the recipient; or (2) refer the case to DOJ for judicial proceedings to enforce
any rights of the United States under any law of the United States.
Section 401 Initiate Administrative Proceedings
Where Appropriate
If post-LOF negotiations do not result in an agreement,
the Enforcement Office will notify the Office of the Assistant Secretary that
an administrative proceeding will be initiated. OCR will establish a team to prosecute
the case. If deferral of funds has been imposed, the Notice of Opportunity will
be issued within 30 days of the notice of the deferral action.
Section 402 Refer to DOJ Where
Appropriate
If post-LOF negotiations do not result in an agreement,
the Enforcement Office will notify the Office of the Assistant Secretary and that
office will issue a 10-day letter, informing the recipient that the case will
be referred to DOJ within 10 days of the date of the letter if an agreement cannot
be reached. OCR will prepare a draft of the referral letter to DOJ for the General
Counsel's signature. The Enforcement Directors, in conjunction with OGC, will
consult with DOJ where appropriate.
Section 403 Move to Enforcement for Denial of
Access
Where the recipient has denied access to information necessary
to investigate the case (See Section 602), an LOF of violations
is not necessary to proceed to enforcement. No such action can be taken until
30 days have elapsed after notification of recipient. As soon as the Enforcement
Office concludes that the recipient will not voluntarily provide access, it will
notify the recipient of the Enforcement Office's determination and the Enforcement
Office's intention to recommend enforcement. The Enforcement Office will then
prepare a draft letter, which may include notice of OCR's intention to impose
deferral of funds. These documents will be forwarded to the Enforcement Director
and Deputy Assistant Secretary for Enforcement.
Section 404 Move to Enforcement
for Failure to Comply with OCR Agreement
Where the recipient has failed to comply with the agreement it is necessary
to prepare an LOF consistent with the procedures outlined under Sections
305 and 306. If a new agreement cannot be reached
after issuance of the LOF, procedures set forth in Sections
401 and 402, will be followed, as appropriate.
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Article V COMPLIANCE REVIEWS
The investigation procedures identified in the manual for complaint resolution
should be utilized for compliance reviews, where appropriate. The "start
date" is the date the on-site begins or, if there is no on-site, the date
that data are first requested from the recipient.
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Article VI APPENDICES
Section 601 Special Intake Procedures
(a) Age Discrimination Complaints
An age discrimination complaint is timely if it is filed within 180 days
of the date the complainant first had knowledge of the alleged discrimination.
1. Employment Complaints
OCR does not have jurisdiction over employment complaints under the Age
Discrimination Act. Employment complaints filed by persons 40 and older
are referred to the appropriate EEOC office, and the OCR complaint is
closed. Employment complaints filed by persons under 40 are not within
the jurisdiction of EEOC and may be closed with notice to the complainant
that there is no jurisdiction under the Act. If the complaint alleges
age discrimination in employment that is within EEOC's jurisdiction and
also contains allegations of discrimination in services within the jurisdiction
of OCR, the complaint is split into two separate cases. Each is given
its own case number, the age employment complaint is referred to EEOC
with the OCR age employment case being closed, and OCR proceeds with the
age services complaint.
2. Service Complaints
All complete and timely (see 34 C.F.R. §§ 110.31 and 110.32)
complaints containing an allegation of age discrimination in services,
including those also containing allegations under Title VI, Title IX,
and/or Section 504, are promptly referred to:
Federal Mediation and Conciliation Service
2100 K Street, N.W.
Washington, D.C. 20427
Copies of the complaint and letters of acknowledgment to the complainant
and recipient, and a completed FMCS "Request for ADA Mediation Assistance"
must be included.
If the complaint is not resolved by FMCS within 60 days from the date
of filing with OCR, OCR will resume processing the complaint. The date
that the complaint, or any portion of a complaint, is sent to FMCS shall
be entered in CMS; the date that the complaint is referred back from FMCS
shall also be entered in CMS. FMCS's processing time will, therefore,
not be included in OCR's case processing time.
(b) Title VI Complaints Against Proprietary
Schools
Authority to process Title VI complaints against proprietary vocational
schools (privately owned, profit-making enterprises that teach a trade or
skill leading to immediate employment) has, with certain exceptions, been
delegated to the Department of Veterans Affairs. Such complaints must be
forwarded to:
Veterans Benefits Administration
Office of Diversity Management and
Equal Employment Opportunity 20M2
U.S. Department of Veterans Affairs
810 Vermont Avenue, N.W.
Washington, D.C. 20420
OCR must refer to the Department of Health and Human Services Title VI
complaints filed against a proprietary school operated by a hospital. The
complainant must be notified of the referral, and the complaint closed.
The following exceptions apply:
- OCR remains responsible for enforcement of Title VI where a proprietary
vocational school is operated by a college or university. See 38 C.F.R.
§ 18a.1(a).
- OCR remains responsible for enforcement of Title VI where a proprietary
vocational school offers non-degree courses for which credit is given
and which, on transfer, would be accepted toward a baccalaureate or higher
degree by a degree-granting institution. See 38 C.F.R. § 18a.1(b).
(c) Title VI and Title IX Employment Complaints
(see 29 C.F.R. §§ 1691.1 – 1691.13 and 28 C.F.R. §§
42.601 – 42.613)
1. Referrals to EEOC
OCR must refer to EEOC all Title VI and Title IX employment complaints over
which OCR lacks jurisdiction, but over which EEOC may have jurisdiction.
The following restrictions apply to the referral to EEOC of Title VI
and Title IX employment complaints over which both OCR and EEOC may have
jurisdiction (“joint complaints”):
OCR must refer to EEOC all joint complaints solely alleging employment
discrimination against an individual, unless the complainant has filed
a similar charge of employment discrimination with EEOC and EEOC agrees
to defer its investigation pending OCR investigation, or other special
circumstances warrant OCR's investigation of the joint complaint.
OCR may not refer to EEOC a joint complaint alleging a pattern
or practice of employment discrimination, unless special circumstances
warrant OCR's referral of the joint complaint.
OCR should not refer to EEOC a joint complaint alleging both
discrimination in employment and discrimination in other, non-employment
practices, unless special circumstances warrant OCR's referral of the
joint complaint. OCR shall determine whether the complainant has filed
a similar charge with EEOC and, if so, EEOC and OCR shall coordinate their
investigations and EEOC should defer its investigation if OCR so requests.
OCR may refer all other joint complaints to EEOC without prior
consultation with EEOC.
2. Procedures and Timeframes
The following procedures and timeframes apply to the handling of any Title
VI or Title IX employment complaint:
(i) Within 10 calendar days of OCR's receipt of the complaint, OCR must
notify the recipient and complainant that:
OCR has received the complaint, including the date, place and alleged
circumstances of the discriminatory act set forth in the complaint;
-
OCR will determine within 30 days of receipt of the complaint whether
the complaint will be referred or transferred to EEOC; and
OCR's determination regarding whether the complaint is complete or
timely under OCR's case processing rules will be deferred until it has
been determined whether OCR or EEOC will investigate the complaint.
(ii) Within 30 calendar days of receipt of the complaint, OCR must:
determine whether it has jurisdiction over the complaint and whether
EEOC may have jurisdiction over the complaint; and
transfer to EEOC a complaint over which it does not have jurisdiction,
but over which EEOC may have jurisdiction, and so notify the complainant
and recipient of the transfer, reason for the transfer, location of
the EEOC office to which the complaint was transferred, and that the
date OCR received the complaint will be deemed the date it was received
by EEOC.
(iii) OCR referral to EEOC of a complaint over which both OCR and EEOC
may have jurisdiction (“joint complaint”) should occur within
30 days of receipt of the complaint. OCR shall also notify the complainant
and recipient of the referral, the location of the EEOC office to which
the complaint was referred, the specific civil rights provision(s) involved,
the authority of EEOC, and that the date OCR received the complaint will
be deemed the date it was received by EEOC.
A. Complaints referred in entirety to EEOC
Where the entire complaint is referred to EEOC, the complaint will be
closed. The letters notifying the complainant and recipient of referral to EEOC must
state that OCR is closing the complaint. No determination of completeness
or timeliness need be made.
B. Complaints referred in part to EEOC
Where OCR retains any portion of the complaint, the original case will
be closed upon referral to EEOC and a new case number assigned to the
portion retained by OCR.
(d) Title II ADA Complaints (Other than Employment)
(see 28 C.F.R. § 35.171(2)(i))
OCR has jurisdiction to investigate Title II complaints against public
educational entities and libraries. If OCR receives an ADA-only complaint
over which it does not have jurisdiction, it should be referred to the Department
of Justice, then closed. The complainant should be notified of the referral.
(e) Disability Employment Complaints (for
precision, please refer to 28 C.F.R Part 37 and 29 C.F.R. Part 1640)
1. Referral or deferral
(i) Disability employment complaints shall be referred to the Department
of Justice Civil Rights Division if OCR has no jurisdiction under either
Title II of the ADA or Section 504 of the Rehabilitation Act of 1973,
and EEOC does not have jurisdiction under Title I (i.e., recipient has
fewer than 15 employees). If EEOC has jurisdiction under Title I (recipient
has 15 or more employees) the complaint shall be referred to them.
(ii) OCR may defer complaints that are dual-filed with another agency
unless complainant elects to have OCR process the charge and OCR receives
such written request within twenty days of the date of the required
notice letter to the complainant. (28 C.F.R. § 37.8(a)(1)) If special
circumstances make deferral inappropriate, OCR and the appropriate agency
may jointly determine to reallocate investigation responsibilities.
(28 C.F.R. § 37.8(e))
2. Retention
(i) If OCR has jurisdiction under Section 504, but not under
Title II, OCR shall retain a complaint if:
- The EEOC does not have jurisdiction under Title I (i.e., if fewer
than 15 employees);
- The EEOC has jurisdiction, but the complainant elects to have OCR
process the complaint;
- The complaint alleges discrimination in both employment and in other
practices or services covered by section 504; or
- The complaint alleges a pattern or practice of employment discrimination.
(28 C.F.R. § 37.6(d)(1))
(ii) If OCR has jurisdiction under Title II of the ADA but not under
Section 504 OCR shall retain jurisdiction over a complaint if it determines
that EEOC does not have jurisdiction under Title I. (28 C.F.R. 37.6(d)(2)
and (3))
Section 602 Data Collection and Information Gathering
(a) Generally
Generally, OCR requests documentary evidence from the recipient, develops
interview questions based upon those data and any other available information,
and conducts interviews with the complainant, recipient personnel, and others
as appropriate. The exact approach taken to data/information collection will
vary from case to case depending on the issues raised, the extent to which
relevant data are in the control of the recipient or others, and investigation
strategies. Some general principles that should guide decision-making during
data collection include:
- Obtain independent written documentation to corroborate oral statements.
- Label all evidence, both documents, electronic media, and written records
of contact, with information identifying the case being investigated and
the circumstances under which the evidence was obtained (e.g., where and
when an interview was conducted, and who provided a given document).
(b) OCR's Authority to Obtain Information
OCR has the right of access during a recipient's regular business hours to
recipient's facilities and to information maintained by the recipient that
is necessary to determine compliance status on those issues under investigation.
See 34 C.F.R. § 100.6(c) and 34 C.F.R. § 99.31(a)(3)(ii). Generally,
this includes access to oral information from a recipient's employees as well
as to written or non-written information, such as electronic storage media,
microfilming, retrieval systems, and photocopies maintained by the recipient.
OCR, not the recipient, decides what information is relevant to a determination
of compliance.
OCR has no legal authority to require the complainant or any other non-recipients
to provide information.
See Section 606(d)4 regarding any case where the
complainant's refusal to provide information interferes with OCR's ability
to investigate the case.
(c) Requests for Records
1. Data Request
A data request seeks information from the recipient relevant to the investigation.
It can be used to initiate information collection or to request additional
information after the primary information collection activity has been completed.
2. Timeframes for Recipient's Response
The recipient will be given 15 calendar days from the date of OCR's request
to submit the information required. This timeframe may be modified, at OCR's
discretion, depending on the nature and extent of data and/or other special
circumstances.
3. Data Provided by Recipient
A recipient must submit information as necessary for OCR's compliance
activities. However, other federal regulations and policies may restrict
OCR's information requests:
(i) For example, unless the request is made in the context of an ongoing
complaint or compliance review investigation (see 5 C.F.R. § 1320.3),
OCR may not generally require a recipient to record information on a "form"
or other standardized data collection instrument without obtaining prior
approval for its use by the Office of Management and Budget. OCR may,
however, suggest suitable formats to be used at the discretion of the
recipient as information collection instruments.
(ii) Similarly, OCR must consider federal policies concerning paperwork
burdens when requesting a recipient to do more than provide OCR access
to normally maintained information. Requests that a recipient manipulate
or compile information to meet an OCR need must be reasonable and take
into consideration the burden being placed on the recipient.
(iii) If a recipient invites OCR to come on-site and collect the requested
information, and provides OCR with sufficient access to files, records,
logs, and appropriate indexes for OCR to obtain the needed information,
then the recipient has provided OCR with the requisite access.
4. Confidentiality
OCR has access to a recipient's records, even if those records identify
individuals by name. To protect the confidential nature of the records,
OCR, for example, may permit the recipient to replace names with a code
and retain a key to the code. However, OCR should inform the recipient that
if at any time such a procedure impedes the timely investigation of the
case, OCR shall have access to the unmodified records. See also 20 U.S.C.
§ 1232(6)(B)(1),(3) regarding the applicable provisions of the Family
Educational Rights and Privacy Act.
(d) Interviews
1. Introduction
Interviews are an integral part of most investigations. The objective of
interviews is to gain an understanding of the records and data relevant
to the issues in the case; to obtain information from and assess the credibility
of witnesses; and to evaluate recipient defenses.
2. Notice
Prior to initiating an interview, OCR should inform the witness of the
following:
(i) The general purpose of the interview, including OCR's role, what
law or laws may be pertinent to the investigation, and where appropriate,
a brief explanation of what is under investigation.
(ii) The potential uses of the information to be obtained from the witness
and the Freedom of Information Act. A witness who wants a more thorough
explanation should be given a copy of the OCR Notice of Witness Rights.
(iii) The witness's right to personal representation during the interview
by a person of their choice.
(iv) If the witness is an employee of a recipient, his or her right to
refuse to have anyone else present during the interview and his or her
right to refuse to reveal the content of an interview.
(v) The regulatory provisions concerning prohibition of intimidating
or retaliatory acts by a recipient.
(vi) In most cases, the recipient's counsel will be allowed to be present
during upper level management interviews.
3. Privacy
Interview witnesses under circumstances that assure privacy. An interpreter
may be used if safeguards are taken to ensure the competence of the interpreter
and to protect the witness's privacy.
4. Interviews with Minors (Persons Under
18) or Legally Incompetent Individuals
OCR shall obtain written consent from a parent or guardian prior to interviewing
any person under 18 years of age or otherwise adjudicated legally incompetent,
for example, mentally impaired. Parental or legal guardian consent may not
be required for persons under 18 if they are emancipated under state law
and are therefore considered to have obtained majority. It may be advisable
to obtain proof of emancipation. Parental or legal guardian consent may
not be necessary when the questions asked are of a general nature, not related
to any specific events in which the minor was involved, and there are no
records kept to identify the student. If a recipient refuses to allow minor
students to be interviewed without consent even in the above circumstance,
written consent must be obtained. If parents or guardians refuse to provide
consent for an interview, and OCR determines that the child's information
is critical, OCR may attempt to secure parental or guardian consent by inviting
the parent or guardian to be present during the interview. If consent is
denied, OCR will not interview the child.
5. Records of Interviews
A written record of both telephone and in-person interviews must be kept.
Interviewers will notify interviewees if a tape recording is used and tape
recording will be done only with the consent of the interviewee. If interviewers
use tape recording, the tape becomes part of the case record along with
the written record. Regardless of the technique used during the interview,
a written record of the interview must be created.
The record of the interview to be placed in the case file must contain
the following information:
(i) case identification (name and case number);
(ii) name and identification of the interviewee, interviewer, and any
other person present (include an explanation for the presence of any other
persons);
(iii) date, time, and location of interview (including whether the interview
was conducted by telephone);
(iv) a record of whether the interviewee was informed of required notifications;
and
(v) written record reflecting the questions and responses obtained during
the interview (this need not be a verbatim transcript but must accurately
reflect the responses of the witness).
(e) Limitations on Obtaining Information
1. Actions Constituting Denial of Access
A recipient denies access to OCR when it:
(i) refuses to permit OCR access to written or unwritten information,
such as electronic storage media, microfilm, retrieval systems, photocopies,
etc., and the recipient's facilities during the recipient's normal business
hours;
(ii) refuses to permit OCR access to employees during recipient's
regular business hours;
(iii) fails to provide information by virtue of the refusal
of one of its employees to do so or to provide access to information maintained
exclusively by an employee in his/her official capacity; or
(iv) refuses to complete applicable OMB-approved compliance
and survey forms relevant to an investigation.
2. Refusals to Provide Data or Access to
Witnesses
(i) If the refusal is stated orally, either in person or over the telephone,
the investigator should attempt to ascertain the exact basis for the recipient's
refusal, and, attempt to explain OCR's authority or provide other information
to address the recipient's concerns.
(ii) If the investigator is unable to obtain access to the requested
information, the investigator will consult with OCR legal staff (when
on-site, this should be done over the telephone whenever possible before
the investigator leaves the recipient's premises). Where appropriate,
OCR legal staff should discuss the refusal to provide information directly
with the recipient's representative.
(iii) Where attempts to persuade a recipient to provide information have
failed, a letter should be prepared setting forth OCR's authority to obtain
access to the information and addressing any particular concerns expressed
by the recipient.
(iv) Whenever the office determines that compliance cannot be achieved,
the office shall recommend that the case be referred for enforcement.
(See Section III).
Section 603 Freedom of Information Act and Privacy
Act
The Freedom of Information Act (FOIA), 5 U.S.C. § 552, gives the public
a right of access to records of federal agencies, including the records and
files of the Office for Civil Rights. The FOIA is implemented by Department
regulations. (34 C.F.R. Part 5)
The Privacy Act of 1974; 5 U.S.C. § 552a, regulates the collection,
maintenance, use, and dissemination of certain personal information in federal
agency files. OCR's investigation files have been exempted from the provisions
of the Privacy Act that provide individuals with access to records maintained
on them.
Third parties may not gain access to records about individuals within a system
of records without the consent of the subject individual except as required
by FOIA or pursuant to other statutory exceptions contained in the Privacy
Act. (5 U.S.C. § 552a(b))
Any requests for copies of documents or other access to information contained
in OCR's files should be referred to the Enforcement Office staff responsible
for handling FOIA and Privacy Act requests.
Section 604 Recipients Operating Under Federal
Court Order
Enforcement Office legal staff will determine whether any allegations made
in a complaint are covered by a federal court order. If allegations are covered
by such an order, normal case processing procedures will be altered as follows:
(a) United States a Party
- The Office Director will inform the Enforcement Director and forward
to the Department of Justice (DOJ) a copy of the complaint and the court
order (if readily available) asking whether DOJ is currently active
in the district and whether OCR may proceed with an investigation. Based
on DOJ's response OCR will either:
(i) Refer the case to DOJ; or
(ii) Proceed with an investigation.
- Accordingly, the Enforcement Office will then close the complaint
and notify the complainant that the case has been referred to DOJ, or
accept the complaint and so notify the complainant in the letter of
acknowledgment.
- If OCR proceeds with an investigation, at the conclusion of its investigation,
the Enforcement Office will forward a report to DOJ of OCR's findings
of fact. If DOJ offers no objection, OCR will proceed to issue a resolution
letter consistent with routine case processing standards. (See Article
III)
(b) United States Not a Party
- As part of evaluation of the complaint the Enforcement Office will
consult with parties about the current status of the court order and
with the Litigation Coordinator before proceeding to resolution.
- If a violation LOF is issued, the LOF should notify the complainant
and recipient that if settlement is not achieved, the case will be referred
to DOJ for enforcement. If settlement is not achieved, refer to Section
402.
Section 605 Early Complaint Resolution
A mutually acceptable resolution reached between the complainant and the
recipient regarding the allegations.
(a) OCR's Role
- To serve as facilitator
- To inform the parties of the procedures, establish a constructive tone,
and encourage the parties to work in good faith toward a mutually acceptable
resolution
- To maintain an impartial approach and inform the parties that OCR will
not insist on particular terms or any specific resolution
- To review the allegations and make sure the parties understand the
issues that OCR has accepted for investigation, and, as appropriate, facilitating
and understanding of pertinent legal standards and possible remedies
- To facilitate a discussion between the parties regarding possible actions
that the parties may consider in working toward a resolution
- To offer assistance, as appropriate, with regard to reducing any resolution
to writing. If an agreement is reached, the parties are informed that
OCR will issue a closure letter reflecting the voluntary resolution of
the complaint by agreement of the parties
(b) Role of the Participants
- To participate in the discussions in good faith
- To consider offers or suggestions with an open mind and to work constructively
toward a mutually acceptable resolution
- To implement any agreement in good faith
Section 606 Information About OCR's Complaint
Resolution Procedures
(a) Complaint Evaluation
OCR evaluates each complaint to see whether complaint resolution is possible.
For example, OCR must decide whether the complaint was filed on time, whether
OCR has authority to handle the complaint, and whether a court or another
agency has already made a decision on the matter.
OCR may request additional information from complainants and
may also obtain information from other sources to fully understand the complaint.
OCR is responsible for enforcing the following federal civil
rights laws:
- Title VI of the Civil Rights Act of 1964, which prohibits discrimination
on the basis of race, color or national origin;
- Title IX of the Education Amendments of 1972, which prohibits discrimination
on the basis of sex in educational programs;
- Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination
on the basis of disability;
- The Age Discrimination Act of 1975, which prohibits discrimination
on the basis of age; and,
- Title II of the Americans with Disabilities Act, which prohibits discrimination
on the basis of disability.
- Boy Scouts of America Equal Access Act included in the No Child Left
Behind Act of 2001, which prohibits denial of access to or other discrimination
against the Boy Scouts or other Title 36 U.S.C. youth groups in public
elementary schools, public secondary schools, LEAs, and SEAs that have
a designated open forum or limited public forum.
Generally, OCR can take action only if the complaint is filed
within 180 calendar days of the last act the complainant believes was discriminatory
or if there is a continuing pattern or practice of discrimination. Age complaints
are timely if filed within 180 days of the date the complainant first knew about
the alleged discrimination. If the complaint is not filed on time, a complainant
can request a waiver and provide the reason for the delay. OCR may grant the waiver
only for specific reasons.
(b) Complaint Resolution
OCR's goal in complaint resolution is to resolve the complainant's allegations
of discrimination promptly and appropriately. OCR may use a variety of approaches
to resolve the complaint.
1. Early Complaint Resolution
Early Complaint Resolution allows the parties (the complainant and the
school, college or other institution which is the subject of the complaint)
an opportunity to resolve the complaint allegations quickly. If both parties
are willing to try this approach, OCR will work with them to help them
understand the legal standards and possible remedies. OCR does not sign,
approve or endorse any agreement reached between the parties and does
not monitor the agreement. However, if the institution does not follow
through on the agreement, the complainant may file another complaint with
OCR within 180 days of the failure to comply with the agreement.
2. Investigations and Agreements
OCR may use a variety of fact-finding techniques, including data collection
and interviews. Any agreement for corrective action will describe the
actions that the institution will take and will be monitored by OCR.
3. Other Ways Complaints Can be Resolved
There are a variety of reasons why OCR may consider a complaint resolved.
For example:
- Another agency investigated the complaint and the resolution meets
OCR's standards.
- OCR learns that the complaint allegations have already been resolved.
- The complainant withdraws the complaint.
- OCR determines that there is insufficient evidence to support the
allegations.
(c) Letters of Findings and Enforcement
If OCR determines that an institution has violated one of the civil rights
laws OCR enforces and is unwilling to correct the violation, OCR will issue
a letter of findings which describes the findings of fact and the legal
basis for the violation. OCR will again try to obtain an agreement to remedy
the violation found. If the institution is unwilling to correct the violation,
OCR will either initiate administrative enforcement proceedings to suspend,
terminate, or refuse to grant or continue federal financial assistance to
the institution, or refer the case to the Department of Justice. OCR may
also move immediately to defer any new or additional federal financial assistance
to the institution.
(d) Additional Information for the Complainant
1. What to Do if You Disagree with OCR's Resolution of Your Complaint
If you have questions or concerns about OCR's resolution of your complaint,
you should contact the OCR staff person whose name appears in the resolution
letter. If you continue to have questions or concerns, you should contact
the Office Director in writing. You should be as specific as possible
and focus on factual or legal questions that might change the determination.
Specifically, you should explain why you believe the determination was
incorrect; i.e., why the factual information was incomplete, the analysis
of the facts incorrect, the legal standard not applied correctly, and/or
the incorrect legal standard applied. The Director will respond in writing.
If you continue to have questions or concerns, you may appeal to the Deputy
Assistant Secretary for Enforcement.
2. Information about the Right to File a Separate Court Action
A separate court action may be filed regardless of OCR's findings. In
resolving complaints, OCR does not represent the complainant in the way
that a private attorney would. If you wish to do so, you may file a court
action through your own attorney.
If you are alleging discrimination prohibited by the Age Discrimination
Act of 1975, you may file a civil action in federal court only after you
have exhausted administrative remedies. Administrative remedies are exhausted
when either of the following has occurred: 1) 180 days have elapsed since
you filed the complaint with OCR and OCR has made no finding, or 2) OCR
issues a finding in favor of the recipient. If this occurs, OCR will promptly
notify you and will provide additional information about your right to
file for injunctive relief.
You have the right to have a representative at all stages of the complaint
procedure.
3. Prohibitions against Intimidation or Retaliation
An institution that receives funds from the Department may not intimidate,
threaten, coerce, or discriminate against anyone to interfere with any
rights protected by the civil rights laws OCR enforces or because he or
she has filed a complaint with OCR or participated in an investigation.
Anyone who believes he or she has been intimidated or retaliated against
can file a complaint with OCR.
4. Investigatory Uses of Personal Information
To resolve your complaint, OCR may need to collect and analyze personal
information such as student records or employment records. No law requires
you to give personal information to OCR and no sanctions will be imposed
on complainants or other persons who do not cooperate in providing information
during the complaint resolution process. However, if OCR is unable to
obtain information needed to resolve your complaint because of your failure
to provide information or sign a consent form, OCR may have to close your
complaint.
The Privacy Act of 1974, 5 U.S.C. § 552a, and the Freedom of Information
Act (FOIA), 5 U.S.C. § 552, govern the use of personal information
submitted to all federal agencies and their individual components, including
OCR.
The Privacy Act of 1974 governs the use of personal information held
by the Federal Government. It applies to records that are maintained by
the government that are retrieved by the individual's name, Social Security
number, or other personal identifier. It regulates the collection, maintenance,
use and dissemination of certain personal information in the files of
federal agencies. The Department has published a Privacy Act system of
records notice entitled Complaint Files and Log, 18-08-01, that applies
to these types of records.
The information OCR collects is analyzed by authorized personnel within
the agency and will be used only for authorized civil rights compliance
and enforcement activities. However, in order to resolve a complaint OCR
may need to reveal certain information to persons outside the agency to
verify facts or gather additional information. Such details could include
the age or physical condition of a complainant. Also, OCR may be required
to reveal information requested under FOIA. OCR will not release information
to any other agency or individual except in accordance with the provisions
of 18-08-01. OCR will not reveal the name or other identifying information
about an individual unless it is necessary for completion of an investigation
or for enforcement activities against an institution that violates the
laws, or unless such information is required to be disclosed under the
FOIA or the Privacy Act. OCR will keep the identity of complainants confidential
except to the extent necessary to carry out the purposes of civil rights
laws, or unless disclosure is required under the FOIA, the Privacy Act
or otherwise by law.
The Freedom of Information Act (FOIA) gives the public the right of access
to records of federal agencies, except to the extent that the records
or parts of them are protected from public disclosure by one of nine exemptions.
5 U.S.C. § 552(b). In addition, a federal agency's use of any one
of the FOIA exemptions is discretionary. Individuals may obtain items
from many categories of records of the Federal Government, not just materials
that apply to them personally. OCR must honor requests for records under
the FOIA with some exceptions. Although each request will be reviewed
on a case-by-case basis, generally, OCR is not required to release documents
during the case resolution process or enforcement proceedings if the release
could affect OCR's law enforcement activities. See 5 U.S.C. §§
552(b)(5) and (b)(7). Also, a federal agency may refuse a request for
records if their release would result in an unwarranted invasion of privacy
of an individual. See 5 U.S.C. § 552(b)(6).
[1] For simplicity this manual
uses the term recipient throughout. It is intended to include public entities,
whether or not they receive federal financial assistance.
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