Cracking Down: What to Expect From a Tougher OCR

By: CLC Staff

iStock_000072679071_Small_-_EDITED.jpgOne of the Office for Civil Rights’ (OCR) central responsibilities is carrying out investigations at particular postsecondary schools when there is valid reason to do so. The OCR’s approach to these investigations has recently become a topic of much discussion – many in the education community believe the office has adopted a stricter stance in the handling of its investigations, especially those concerning Title IX violations.

A tougher OCR means increased pressure on your school to comply with the policies found in these guidance letters and with investigations that may be of a more disciplinary nature than those carried out a few years ago. Being prepared for these kinds of reviews from the OCR will ensure a comprehensive conflict resolution response from your staff and the ability to work together with the OCR to create the safest possible environment for the students and faculty of your school.

Current Investigations

As of December 2015, there are currently 185 investigations led by the OCR concerning sexual violence, involving 152 postsecondary institutions. These include “compliance reviews”, investigations that the OCR carries out with a school-wide focus. These reviews are brought by the OCR based on their own analysis of a campus environment, and the regulations governing this analysis are broad, giving the OCR a plethora of possible reasons for instigating a review.

The OCR also tries to treat each investigation the same way, even if the complaint that prompted the investigation is a single, alleged incident. This results in widespread examination of campus policies and procedures, as well as extensive training for staff and additional awareness efforts. While none of these measures are hurtful in and of themselves, some question the necessity of the scale of these reviews, particularly if the initial incident was a minor one.

It’s worth noting that Title IX legislature doesn’t require investigations of this scope, and some authors maintain that the OCR does not expend the same resources for investigations concerning race, disability, or other non-sexual matters.

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Complaint Processing Manual

The Complaint Processing Manual (CPM) is the set of guidelines the OCR follows in carrying out its investigations. Recent changes to the CPM have pointed towards the OCR’s willingness to remain involved in particular investigations, including those that may have been handled differently in years past.

For example, an OCR regional office used to close a case if there was a pending court decision for that case – complainants could re-file after the proceedings if there had been no decisions made in court. Now, however, the OCR office will issue their conclusions if they believe they have sufficient evidence to do so, regardless of the court’s activity. This opens the door for conflicting decisions between the court and the OCR.

Another example involves settlements between parties: in the past, the OCR would often close a case where a settlement had been reached, and the complainant had chosen to withdraw their complaint. Now, the OCR will not close the case if they believe they have accumulated sufficient evidence for a determination, and will move ahead with their investigation.

Hostile Environments

Another trend of some concern to postsecondary staff is the OCR’s use of the “hostile environment” label in regards to campus climate. One instance saw an OCR investigation at the University of Virginia conclude a hostile environment on campus did exist. This finding was largely influenced by the beliefs of students that OCR officials spoke to, beliefs that were not necessarily backed up by facts. The university claimed as much, requesting the OCR report to be withdrawn due to the factual errors it contained.

The OCR re-issued the resolution letter a few days later, with only the added provision that the hostile environment existed for “affected students” – this term was never properly defined. Such investigations into campus environment often favor student belief over student knowledge, which can create a skewed picture of the institution’s responses to sexual violence and discrimination.

It certainly appears the OCR is taking a more confrontational, hands-on approach to their investigations of Title IX violations at schools across the country. It is more important than ever to maintain open lines of communication with the OCR, and to work closely with them in resolving cases while maintaining the top priority of your students’ happiness and safety.

Do you have something to add to the discussion? Do you think the OCR should change its approach, and if so, how? Share in the comments below.

Source: NACUA January 2016 Workshop OCR Pushback.

Posted in Title IX

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