10 TIPS FOR SUCCESSFULLY RESPONDING TO
AN OCR INVESTIGATION FROM START TO FINISH
March 19 – 21, 2003
Cynthia Jewett
Arizona State University
Tempe, AZ
Lisa Rutherford
University of Wisconsin-Madison
Madison, WI
The mission of the Office for Civil Rights is to ensure the equal access to education and to promote
educational excellence throughout the nation through vigorous enforcement of civil rights.
Department of Education, Office for Civil Rights
“The Office for Civil Rights (OCR) enforces several Federal civil rights laws that
prohibit discrimination in programs or activities that receive federal financial
assistance from the Department of Education. These civil rights laws extend to all
state education agencies, elementary and secondary school systems, colleges and
universities, vocational schools, proprietary schools, state vocational
rehabilitation agencies, libraries, and museums that receive U.S. Department of
Education funds. Areas covered may include, but are not limited to: admissions,
recruitment, financial aid, academic programs, student treatment and services,
counseling and guidance, discipline, classroom assignment, grading, vocational
education, recreation, physical education, athletics, housing and employment.
“A complaint of discrimination can be filed by anyone who believes that an
education institution that receives Federal financial assistance has discriminated
against someone on the basis of race, color, national religion, sex, disability or
age. The person or organization filing the complaint need not be a victim of
the alleged discrimination but may complain on behalf of another person or
group.”
Excerpted from the Office for Civil Rights website (www.ed.gov/offices/OCR/aboutocr.html).
I.
THE SCOPE OF OCR’S AUTHORITY (AND LIMITATIONS ON AUTHORITY)
In accordance with its mission, OCR is responsible for (1) preventive activities and (2)
enforcement activities related to the following Federal civil rights laws that prohibit discrimination in
programs or activities that receive federal financial assistance from the Department of Education:
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A.
Civil Rights Laws Applicable to Higher Education
1.
Disability: Title II of the Americans with Disabilities Act, 42 U.S.C. §12134 et
seq.; 28 CFR Part 35 (35.190); ADA Accessibility Guidelines (“ADAAG”), 28
CFR Part 36 and Appendix to Part 36; Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. §794; 34 CFR Part 104 (Subpart E, Postsecondary Education);
34 CFR 104.61 (Procedures);
2.
Sex: Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq.;
34 CFR Part 106 (106.71 – Procedures);
3.
Race/National Origin: Title VI of the Civil Rights Act of 1964, as amended, 42
U.S.C. §2000d and §2000d-1; 34 CFR Part 100 (100.6 through 100.11 –
Procedures); and
4.
Age: Age Discrimination Act of 1975, 42 U.S.C. §6103; 34 CFR Part 110.
With the exception of allegations of age discrimination, complainants do not need to
exhaust their administrative remedies before initiating litigation directly against the institution.
As noted below, in 2000 only 1% of the complaints filed with OCR pertained to age
discrimination allegations. Why is OCR such a busy federal agency?
Recently, OCR observed that the coverage of these civil rights laws extends to “more
than 4,000 colleges and universities” and to “nearly 15.4 million students attending colleges
and universities.” Office for Civil Rights 2000 Annual Report to Congress. “During FY 2000,
OCR received 4,897 and resolved 6,364 discrimination complaints, . . ..” Id. Of the complaints
received in FY 2000, 25% (or 1224) were filed against postsecondary institutions (68% were
against K-12 schools and 7 % were against vocational rehabilitation and other types of
institutions). Id. The breakout of the complaints by civil right category was:
55%
18%
11%
8%
7%
1%
Disability discrimination
Race/National Origin discrimination
Multiple grounds
Sex discrimination
Other (complaints outside of OCR’s jurisdiction)
Age discrimination
Organizational Structure of OCR
OCR is a division of the US Department of Education. The reporting structure of the
agency provides for 4 divisions (Eastern, Southern, Midwestern and Western) with each
division having 3 regional offices. OCR has discontinued its former practice of referring to
regional offices by number.
5.
Eastern
Boston (CO, ME, MA, NH, RI, VT)
New York (NJ, NY, Puerto Rico, Virgin Islands)
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Philadelphia (DE, MD, KY, PA, WV)
6.
Southern
Atlanta (AL, FL, GA, SC, TN)
Dallas (AR, LA, MS, OK, TX)
Washington, DC (NC, VA, Washington, DC)
7.
Midwestern
Chicago (IL, IN, MN, WI)
Cleveland (MI, OH)
Kansas City (IA, KA, MO, NB, ND, SD)
8.
Western
Denver (AZ, CO, MT, NM, UT and WY)
San Francisco (CA)
Seattle (AK, HA, ID, NV, OR, WA, American Samoa, Guam, Northern Mariana Islands)
Preventive Activities of OCR
A core responsibility of OCR is to develop and implement preventive activities to avoid
discriminatory acts from occurring in the first instance.
Examples of OCR’s efforts in
Technical Assistance include:
- Publications and guidances (e.g., OCR Case Resolution Manual, Guidances on topics
such as disability harassment, disability – mitigating measures, sexual harassment,
Brochures, such as “Students with Disabilities Preparing for Postsecondary Education:
Know Your Rights and Responsibilities”)
- On-site consultations
- Co-sponsor or participation in conferences and workshops
- Training
Enforcement Activities of OCR
The Office’s other core responsibility is to enforce the provisions of the federal civil
rights laws under its jurisdiction. OCR achieves enforcement through several vehicles:
1.
Compliance Reviews - OCR self-initiates these reviews. This flexibility allows
the agency to pursue a concern when no formal complaint has been received and
also allows the agency to make strategic use of its budgetary and manpower
resources. If a violation of law if found, OCR will prepare a Corrective Action
Agreement (CAA) with the institution which will detail the actions to be taken
by the institution to remedy the violation. The CAA will specify the actions that
are to be taken and the timeframes within which the actions are to be completed.
OCR will then monitor the institution’s performance under the CAA. Per the
2000 Annual Report to Congress, OCR initiated 47 compliance reviews and
closed 71 compliance reviews. The initiation of compliance reviews appears to
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be decreasing – in 1999, OCR initiated 76 reviews, 102 reviews were initiated in
1998 and 152 reviews were initiated in 1997. Id.
2.
Complaint Investigation and Resolution – OCR acts on receipt of a formal
complaint. Complainant may be the alleged victim of discrimination or another
person or organization may file on behalf of the victim. Outcomes that can flow
from a complaint investigation are:
a.
b.
c.
d.
Determination letter – issued when either complaint is not substantiated
or OCR declines to investigate on any of the several grounds listed in the
Case Resolution Manual (e.g., moot, withdrawn, litigation pending on
same matter, allegations too convoluted).
Resolution Between the Parties (RBP) – issued when the parties reach a
mutual agreement between themselves without OCR making any
findings of fact.
Commitment to Resolve (CTR) – issued when OCR has determined that
the institution is not in compliance with the law and the institution
voluntarily agrees to take remedial action. OCR then monitors the CTR.
Violation Letter of Findings (LOF) – issued when OCR has determined
that the institution is not in compliance with the law and the institution is
unwilling to enter into a CTR. OCR is limited to administrative action in
this circumstance; OCR cannot institute litigation against college or
university. Available sanctions:
i.
OCR may initiate administrative proceedings to terminate
Department of Education financial assistance to the College or
University, or
ii.
refer the matter to the US Department of Justice for the initiation
of litigation to enforce any rights under the applicable civil rights
law(s).
OCR accomplishes resolution of concerns in large part by (a) serving as an impartial fact-finder who
stops the assertion of baseless contentions within compressed timeframes, (b) raising the visibility of
concerns to senior administrators (the notice of complaint letter is addressed to the President) who
may not have been aware that a dispute existed but who can then direct appropriate actions to be taken
to resolve the dispute, and (3) facilitating resolution at an early and low level to lessen the development
of an adversarial relationship between the parties.
II.
AVOID A COMPLAINT OF DISCRIMINATION BEING MADE IN THE FIRST PLACE
Are your existing policies and procedures consistent with the federal civil rights protections
afforded to students at your institution? Consider conducting a legal audit of the policies and
procedures adopted by your college or university: (a) to assess the need for and/or implementation
process for reasonable accommodations and provide auxiliary aids and service to students with
disabilities, (b) to administer the institution’s programs and activities without regard to sex, race,
national origin, age or disability, and (c) to provide for an internal grievance process. Questions and
situations will always arise, but the presence of existing policy and procedure will often serve to
answer questions and end disagreements in the earliest of stages.
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A.
Institutional policies
The development of appropriate policies, procedures and forms serves to educate the
university community on the respective rights and responsibilities of students, faculty and
administrators. The institution can establish reasonable standards and procedures for students
to follow to obtain academic adjustments. University of Arizona, _ NDLR ¶ __ (Case No. 0902-2011 OCR 5/12/02), Temple University (PA), 8 NDLR ¶125 (OCR 1995), San Jose State
University (CA), __ NDLR ¶ ___(Case No. 09-93-2161 OCR Region IX 1993)(university can
require non-burdensome administrative tasks related to their accommodations be performed by
the student). A student with a disability must exercise due diligence in seeking any requested
academic adjustment. Id. (student failed to exercise due diligence in requesting adjustment of
test taking conditions). Winona State University (MN), 22 NDLR ¶96 (OCR 2001)(no
discrimination by university where neither student nor parents ever requested academic
adjustments or services for the four courses that were the subject of the student’s complaint).
The failure by a university to have appropriate policies in place to implement the protections of
the ADA and Section 504 will be considered to be a violation by OCR. See e.g., Bellevue
Community College (WA), 7 NDLR ¶135 (OCR 1995); United States International University
(CA), 6 NDLR ¶206 (OCR 1994). References to university web pages for samples of policies
and procedures pertaining to students with disabilities appear in the Appendix.
B.
Avoid Re-inventing the Wheel
More than 4,000 post-secondary institutions in the United States receive federal
financial assistance from the US Department of Education. The question or situation that is
about to arise on your campus has likely already occurred at another college or university.
Besides your institution’s existing policies and procedures, available resources that can be
consulted include:
1.
Other Institutions’ Policies – has another institution either developed a policy or
successfully defended an existing policy that addresses an area for which your
institution does not have a policy, but should?
2.
Professional Associations - Higher education is fortunate to have numerous
professional organizations that enable administrators to learn from one another’s
experiences (e.g., NACUA, NCAA, SJAA, etc.). The sharing of day-to-day
knowledge (e.g., NACUANET and its archive) as well as the continuing
education materials developed by each professional group (NACUA
conferences, NCAA Title IX compliance seminars, NACDA, SJAA
conferences, International Study Program professionals) can provide helpful
information. There are many questions and disputes that arise and are resolved
at the institution level – without a complaint being filed with OCR or litigation
being initiated. Professional colleagues can provide practical, effective advice.
3.
Disability Specific Support Groups – there are extensive information resources
available through the Internet that can provide basic background information on
a particular disability or health condition. On occasion, you may find that a
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student is providing information that is inconsistent with a particular medical
condition or with an established practice. For example, when an employee
began bringing a puppy to work, claiming that she was training the dog to
become a service animal, the university was able to contact one of the
established guide dog training schools to verify the process used for training
guide dogs. The training group confirmed that the dog was too young to even
start training.
III.
4.
Agency Website and Publications - consult the agency website to quickly access
links to the applicable statutes, regulations, agency technical guidances, help
lines, proposed regulations, press releases, agency procedures (e.g., OCR Case
Resolution Manual). The URL for OCR is www.ed.gov/offices/ocr
5.
Administrative Decisions – With decades of administrative enforcement of
Section 504 since 1973 and now a decade of enforcement of Title II of the ADA,
a substantial body of administrative decisions has developed. OCR has spoken
on a broader range of disability issues than what can be found by surveying the
reported court decisions. Accessing the administrative decisions can be
accomplished through (a) making Freedom of Information Act requests to OCR,
(b) consulting OCR and/or DOJ’s websites, or (c) subscribing to specialized
news services, such as those offered through LRP, Inc.
6.
Settlement Agreements - The text of actual settlement agreements is available at
the US Department of Justice’s website: www.ada.gov The ability to access
settlement agreements is helpful in advising your client on strategy if your
institution finds itself on the wrong side of the law.
7.
Reported Court Decisions - published decisions of the federal district courts and
the federal circuit courts of appeals are available through the Internet as well as
paid subscription services, such as Westlaw or Lexis/Nexis. Court decisions are
also available on LRP’s “Disability Law on CD Rom.”
LET’S START WITH SOME PROCEDURAL DEFENSES
Because there is no exhaustion of administrative remedies requirement for disability, sex, race
or national origin discrimination complaints, OCR has established a number of procedural grounds
upon which it can decline to accept or pursue a complaint. OCR initiates a complaint on the
information provided to the agency by the complainant. When your president receives notice of the
complaint, you may possess additional facts that will enable OCR to drop the matter at the outset.
A.
What Constitutes a Complaint?
OCR uses a complaint form (see Appendix). The agency does not consider: (1) oral
allegations, (2) anonymous correspondence, (3) courtesy copies of correspondence or a
complaint filed with others, or (4) inquiries that seek advice or information but that do not seek
action or intervention from the department, to constitute complaints. OCR Case Resolution
Manual at I.A.
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B.
Is the Complaint Timely?
To be timely, all complaints of discrimination must be filed with an office of OCR
within 180 days of the alleged discriminatory event.1 34 CFR §100.7(b).
C.
Is there a reason that makes OCR’s pursuit of the complaint unnecessary or duplicative?
OCR may decline to pursue an investigation into complaint allegations because:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
The complaint is so weak, attenuated or insubstantial that it is without merit;
The complaint is a continuation of a pattern of previously filed complaints
involving the same or similar allegations against the same or similar recipients
that has been found factually or legally insubstantial by OCR (Note: In 1999,
one individual complainant filed 1,614 complaints with OCR per the 2000
Annual Report to Congress).
The same allegations and issues of the complaint have been addressed in a
recently resolved OCR complaint or compliance review.
The complaint has been investigated by another agency and the resolution of the
complaint meets OCR regulatory standards.
The complaint allegations are foreclosed by previous decisions of the federal
courts, Secretary of Education, the Civil Rights Reviewing Authority, or OCR
policy determinations.
The complainant withdraws his or her complaint.
OCR obtains information at any time indicating that the allegations have been
resolved.
Litigation has been filed raising the same allegations.
The same complaint allegations have been filed with another federal, state or
local agency or through the recipient’s internal grievance procedures.
OCR obtains information that the allegations are moot.
The information received in the complaint does not provide sufficient detail to
proceed with complaint resolution.
Complainant refuses to cooperate with OCR.
OCR transfers the complaint to another agency for investigation.
Death of the complainant.
See OCR Case Resolution Manual at I.H. for full description of the circumstances OCR will consider
in deciding to decline further pursuit of a complaint. In two circumstances, OCR will not pursue a
complaint investigation but may initiate a compliance review:
1.
A complaint, because of its scope, requires a massive amount of resources, and
1
OCR may extend the time for filing in certain circumstances by allowing the
complainant an opportunity to request a waiver. For a complete list of circumstances in which a
waiver may be granted, please see the OCR Case Resolution Manual, I.G. The URL for the Manual is:
www.ed.gov/offices/OCR/docs/ocrdrm.html
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2.
IV.
Multiple individual complaints against the same recipient are received.
THE ART OF THE PRE-EMPTIVE STRIKE
There is no reason your college or university should always be in the position of last to know or
always having to respond to an allegation(s) that has been framed by a complainant. In many instances
it pays to get out in front of a situation.
A.
Use OCR’s Legal Staff
As noted above, OCR is responsible to implement preventive action and to this end, its
staff is there to answer questions and give guidance to its constituents. If your institution is
encountering a novel situation, consider calling an OCR staff attorney to get an informal
opinion. The benefits of this action can include:
1. helping to establish and/or maintain a professional rapport with the staff attorneys;
2. gaining credibility for the institution for taking steps to educate itself to comply with
the civil rights laws;
3. while you will likely only receive an informal (and verbal) opinion, if a dissatisfied
student later brings a challenge and your institution followed the informal opinion,
the likelihood of a determination favorable to the institution increases;
4. if the staff attorney disagrees with the institution’s proposed course of action,
you’ve gained the opportunity to debate the issue more thoroughly in a nonenforcement context. You may succeed in convincing the attorney to your view or
you’re better informed about the counter-arguments and can further analyze the
weight they should receive. In the alternate, you’ve gained the opportunity to alter
the institution’s course of action and thus avoid a subsequent complaint by the
dissatisfied student.
The drawbacks:
1. your question may draw greater attention to the issue by the agency than the
situation would have otherwise drawn;
2. you may get an answer you don’t like or are not able to implement.
Weigh the risks – consider who will make the call on behalf of the institution and who, at OCR,
is to be contacted. Outline your points, authorities and carefully frame the question.
ASU followed this approach when we were confronted with the request by a deaf student to
provide a sign language interpreter for a full academic year of study abroad in Ireland. The
student then filed a complaint with OCR over the university’s denial of the request. OCR issued
its determination letter, upholding the University’s decision. Arizona State University, 22
NDLR ¶ 239, No. 08012047 (OCR Denver 2001).
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B.
Use OCR’s Publications and/or “Blessing” of Institutional Publications
As part of its prevention activities, OCR offers numerous publications to help explain
the respective rights of students and educational institutions. A familiarity with the
publications list will enable you to refer students and/or their parents to a particular publication
to head off a complaint being made to OCR.
For example, one issue that has been arising with greater frequency on university
campuses is the situation of the newly enrolled college student who has grown up receiving
services under the Individuals with Disabilities in Education Act (“IDEA”) and believes that
the college or university must provide the same level of services at the post-secondary level
under either Title II of the ADA or Section 504. To reduce the number of complaints in this
area, OCR released a new pamphlet in July 2002 entitled “Students with Disabilities Preparing
for Postsecondary Education: Know Your Rights and Responsibilities.” This document is
available on-line or as a printed pamphlet. The routine provision of this document to new or
prospective students by your institution’s Office of Disability Resources may stop many
disagreements from ever arising.
An institution may agree to develop a policy or an institutional publication in the course
of resolving a student complaint filed with OCR. OCR reviews and approves the policy or
publication. If subsequent questions or disagreements arise between the institution and a
student and/or parent, the institution can speak from a position of strength in saying that the
particular document has been reviewed and approved by OCR. At ASU, our briefing paper
“Educating Students with Disabilities at the Post-Secondary Education Level” (see Appendix)
was developed in this manner and has been effectively used many times with students, parents,
faculty and staff to resolve contrasting opinions without OCR needing to become involved.
C.
Calling the Bluff: Give the Dissatisfied Student the Telephone Number to Your
Regional OCR Office or Call OCR Yourself
On occasion, students registering for service with the Office of Disability Resources
make unreasonable demands for accommodations or auxiliary aids and services. The student,
through sheer force of personality, may have succeeded in getting a prior institution to accede
to the same or similar demands. In these situations, consider whether a university staff member
should call OCR or whether you think allowing the student to speak for himself or herself
would better convey to OCR the inappropriateness of the demand (see Section II.C, above).
Either way, there is great benefit to neutralizing the threat of “I’m going to file a complaint
with OCR” at the start of the institution’s relationship with the student.
V.
A COMPLAINT OF UNLAWFUL DISCRIMINATION AGAINST YOUR INSTITUTION
HAS BEEN FILED WITH OCR: STRATEGIES FOR A SUCCESSFUL INVESTIGATION
Should a complaint with OCR be filed against your institution, the following outline provides
practical considerations for planning your strategy in each stage of the process. As with any
complaint, knowledge is key to a successful defense. In the early stages, it is important to gather
together internal and external information. Because OCR provides an institution only the very
minimum of specifics regarding a complaint, the following actions are recommended:
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A.
Understand OCR’s Perspective of Time Constraints
OCR is charged with reaching a determination on a complaint of discrimination within
180 days of its receipt of the complaint. 34 CFR §110.39 and OCR Case Resolution Manual,
II.B. By the time you are having your first conversation with the investigator and first
opportunity to obtain the factual substance behind the general allegation stated in the notice of
complaint letter, perhaps as much as 30 days has passed since the complaint was received by
OCR. The investigator may offer you a fairly short period of time within which to respond
(i.e., next day responses as contrasted to the OCR Case Resolution Manual’s provision that at
least 15 calendar days should be provided). Prompt responses to OCR requests can be
beneficial, particularly if they cut off the need for a more detailed investigation. This is
particularly the case where the complaint is straightforward and easily addressed through
existing written documentation. However, some complaints raise complex and/or subjective
issues requiring careful investigation and analysis. Counsel should be prepared to argue for a
reasonable length of time within which the institution will respond. Undue or unnecessary
delays in responding to OCR should be avoided, if at all possible. Note: OCR staff receives
incentive pay if they close 80% of their cases within 180 days from the receipt of the
complaint.
B.
Begin a Dialog with OCR
On the day the complaint comes down to your office from the president’s office, call
OCR to inform them which attorney in your office will be handling the complaint and ask
which investigator is assigned to handle the case. Call them that day or in the early stages of an
investigation, contact the OCR investigator and discuss the complaint. An early contact has
several important purposes:
1.
OCR staffs a complaint investigation by utilizing a “work team” approach that
consists, at minimum, of a supervisory team leader, a staff attorney and an
investigator. The investigator is not an attorney. The investigator is going to be
your point of contact person.
2.
Establishes a rapport with the investigator. This cannot be stressed enough—the
investigator will review all of the information provided to the OCR and, in all
likelihood, conduct the on-site investigation. An amicable relationship with the
investigator may prove invaluable should an investigation later expose an
institutional problem that needs correcting.
3.
Allows the investigator to provide guidance. In conducting an investigation into
the complaint, it is important to understand OCR’s understanding of the
complaint.
4.
May prevent frequent follow up. It is possible OCR may want specific
information from the institution. Providing that with a written response may
prevent having to do numerous follow up responses to OCR requests for
information.
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C.
Use the Freedom of Information Act
OCR protects the privacy of individuals who file complaints. Unless agreed upon in
writing, OCR will not disclose the complainant’s name. As a result, a typical notice from OCR
of a complaint filed against an institution includes only a very brief summary of the
allegation(s). The following examples are the entirety of the complaint allegations provided by
OCR to an institution:
“The Complainant alleges that the University discriminated against persons with disabilities by
failing to provide an appropriate number of spaces for persons who use wheelchairs at Camp
Randall Stadium.”
“OCR received a complaint filed by Student A against UW-Madison alleging that the university
discriminated against Student A on the basis of disability by (1) refusing to follow its usual
practice of assisting UW-Milwaukee students in obtaining a field placement in Madison and (2)
requiring Student A to release information on Student A’s disability to potential placement
sites.”
“The complaint alleges that the University submits students to harassment based upon race.”
Although it may be possible to respond to the specific complaint, the context in which it was
made may be helpful in planning a defense. For additional information, an institution may
request the complaint and supporting documentation from OCR by using the Freedom of
Information Act. 34 CFR Part 5.
D.
Understand the Culture of Department/Unit
1.
Determine the rationale behind the decision
To evaluate credibility and appropriateness of a departmental response to a situation, it is imperative to
understand why a certain action was taken. Ask: “Has it always been done this way?” “Is there a
reason it is done this way—i.e. accreditation requires it; rules permit it; academic standards and
program integrity require it; it’s consistent with our technical standards.” “Have there ever been
exceptions?” “Why and under what circumstances?” OCR will question the reasoning behind the
decision to determine if an action was justified and will uphold an institution’s right to establish and
maintain legitimate nondiscriminatory policies, standards, etc.
See Letter to Quinsigamond College, No. 01-94-2060 (OCR Boston 1994) in which OCR concluded
the College’s attendance policy and requirement for hands-on experience were not discriminatory.
See Board of Education of the City of New York, 12 NDLR ¶157, No. 02-97-1125 (OCR New York
1997) in which OCR upheld dismissal of a mobility-impaired student who could not fulfill all of the
clinical requirements of a nursing program.
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See Letter to Florida Community College, 21 NDLR ¶192, No. 04002062 (OCR Atlanta 9/12/00) in
which OCR upheld the College’s requirement that a student meet a specific diploma requirement for
admission despite the student already possessing an “exceptional student program” diploma.
2.
Visit the Scene
Attempt to put yourself into the environment about which the complaint was made. If it is an
accessibility complaint under Title II of the ADA, view the structural barrier; if it is a climate issue,
spend time in the department/unit during the regular course of business. Doing so assists with making
a credibility determination of both the complainant and the department. Furthermore, viewing the
scene will assist in the determining whether OCR should tour it during an on-site visit.
E.
Collect general as well as specific facts
OCR will contact an institution in response to a specific complaint. However, in
resolving the complaint, OCR may make conclusions and expect resolution of issues that go
beyond the complaint. For example, an individual may complain that a denial of his
accommodation request was a violation of the ADA. In making a determination, OCR will
conclude if an institution followed its accommodation process with respect to the individual as
well as make a determination about the legality of the accommodation process in general. 34
CFR §100.7(c) (“The investigation should include, where appropriate, a review of the pertinent
practices and policies of the recipient, the circumstances under which the possible
noncompliance with this part occurred, and other factors relevant to a determination as to
whether the recipient has failed to comply with this part.”)
See Letter to New Mexico Highlands University, No. 08002045 (OCR 10/13/00) in which an
individual claimed portions of a university building were not accessible. OCR conducted a
barrier access review of the entire building.
See Santa Clara University, No. 09-00-2108 (OCR, Western Division, San Francisco Regional
Office, 2001) in which OCR reviewed the method by which the university addressed
complaints about failure to accommodate even though the specific complaint filed with the
OCR was time barred.
See Appendix, for a resolution agreement sent to the University of Wisconsin-Madison in
response to a complaint filed solely about the number of wheelchair accessible seats in the
stadium. The agreement included accessibility issues for public restrooms, telephones, etc.
VI.
REMOTE INVESTIGATIONS: RESPONDING TO THE CHARGE WHEN OCR
CONDUCTS THE INVESTIGATION FROM ITS OFFICE
In many instances, OCR is going to conduct its complaint investigation from its offices and will
not come on-site. That is, the exchange of information will occur through the use of correspondence,
faxes, e-mails and telephone calls. When responding to an OCR complaint investigation that is
conducted in this manner, it remains important to provide all relevant information and supporting
documentation.
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A.
OCR is entitled to all information and documentation
34 CFR §100.6(c): Each recipient [of federal funds] shall permit access by the
responsible Department official...during normal business hours to such of its books, records,
accounts and other sources of information, and its facilities as may be pertinent to ascertain
compliance…. 2
At the outset, find all policies and procedures that apply to the complaint situation. This
includes policies at your board of trustees/regents level, university level, college level and
school or department level. Make sure you’ve got the edition of the policy and/or procedure
that was in effect at the time the alleged wrongful conduct occurred. Determine if the policies
and procedures were followed by the complainant AND the department/unit. OCR reviews
policies and makes determinations based upon them.
See University of California, Davis, 4 NDLR ¶108, No. 09-92-2101-I (OCR San Francisco
1993) in which OCR concluded University’s policy of suspending interpreter services because
of no-shows to class or late cancellation was permissible. But see, reported settlement of
federal class action lawsuit with UC Davis (Siddiqi v. Regents) wherein university agreed to
abolish its policy that a hearing-impaired student’s interpreter would leave class if the student
did not show up within the first 10 minutes of class and the interpreter would not continue
reporting to class if the hearing-impaired student was more than 10 minutes late on three
occasions. Chronicle of Higher Education, November 12, 2002.
See University of Wisconsin-Madison, No.05-00-2033 (OCR Chicago 7/27/00) in which OCR
upheld the University’s denial of an accommodation when individual making the request failed
to follow proper procedure.
The importance of documentation when responding to an OCR complaint cannot be
overstated. Under the broad grant of power contained in 34 CFR §100.6, OCR investigators
are to have access to documentation within the custody of the institution. OCR uses
documentation to (a) corroborate oral statements, (b) develop interview questions of witnesses,
(c) establish the factual record and (d) support its investigative findings. OCR Case Resolution
Manual, Tab B.
1.
This includes providing student records without written consent:
34 CFR § 99.31 (a)(3)(ii): An educational agency or institution may disclose
personally identifiable information from an education record of a student
without the consent required by §99.30 if the disclosure…is subject to the
2
Interestingly, there is no corresponding authority to OCR to require the complainant to provide supporting
documentation. In practical effect, if a complainant does not cooperate with requests from OCR the agency may decline to
pursue the investigation any further.
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requirements of §99.35, to authorized representatives of the Attorney General
of the United States.
2.
If voluminous, it is acceptable to give OCR direct access.
OCR Case Resolution Manual, Tab B III.C.3: 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 extract the needed information, then the recipient has provided OCR
with the requisite access.
3.
Confidentiality protections permitted
OCR Case Resolution Manual, Tab B III.D: To protect the confidential nature of the records, OCR
may permit the recipient to code names and retain a key to the code. However, if such a procedure
impedes the timely investigation of a case, OCR will access unmodified records.
4.
Don’t Just Think 8 ½ x 11 Paper
In addition to correspondence, forms, policies and procedures, catalogs, medical documentation,
handwritten notes, cards, transcripts, and codes, relevant documentation can be in the form of: e-mail,
web pages, and other electronic data, microfilm and microfiche, ads, blueprints, photographs,
diagrams, CAD drawings, etc.
B.
Gather Names and Follow Through with Interviews of Witnesses
OCR may rely on university counsel to list the individuals who are the most knowledge
of a situation. To make this determination, anyone with relevant information should be
interviewed. This allows for the collection of background information, sorting out relevant
information, determining the quality of the witnesses and preparing individuals for a possible
interview by an OCR investigator. This will enable you to prepare a factually accurate written
response to the discrimination complaint, even if OCR makes no request for interviews.
If the OCR investigator does wish to interview witnesses, he or she should send a
written notice to you with the request that each scheduled witness be provided with a copy of
the notice before a substantive interview starts. OCR Case Resolution Manual, Tab B.IV. A
copy of the standard notice forms can be found in the Appendix. OCR investigators are to
document each interview and this can be done by either keeping hand-written notes of the
interview or by tape recording. If the OCR investigator wishes to tape record, the witness must
consent to such taping. Id. Ask the investigator when the issue of interviewing witnesses first
arises if legal counsel will be permitted to sit in on the in-person interview or be on the
telephonic interview.
C. Disclose the Successes and the Failures
1.
Admit the Failure and Provide a Plan to Remedy
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If, during the course of an investigation, a problem is discovered, this should be
revealed to the OCR. Along with the disclosure, provide a plan to remedy the
situation. For example, if a bathroom does not comply with Title II of the ADA,
admit it to OCR and provide details of the remodeling plan, including blueprints,
anticipated construction dates, bills paid to date, etc. A proactive response may
prevent further OCR investigation and/or an on-site visit.
See Felician College, No. 02-00-2131 (OCR, Eastern Division, New York,
3/09/01), in which a student complained that certain buildings did not provide
wheelchair access. OCR found validity to some of the student’s complaints but,
because the College had either completed corrections or was in the process of
making the necessary corrections, concluded the complaint was resolved.
2.
Accentuate the Successes
It is equally important to share the “good” with OCR. This may take a variety
of forms. For example, in response to a Title II ADA complaint in which the
university is not currently in compliance, provide OCR with information about
completed renovations addressing a different Title II issue. Likewise, provide
details on any current construction or renovation projects and how Title II issues
are addressed. For a Title IX complaint, provide newspaper clippings of awards,
honors and accomplishments of female student athlete teams, players and
coaches.
By highlighting proactive activities or, as with Title IX, celebrating the
accomplishments of a particular population, OCR may be more inclined to
provide the institution with greater latitude in resolving the current situation.
See Notre Dame College, No. 01-01-2002 (OCR, Eastern Division, New
Hampshire, 04/24/01) in which the OCR approved a five-year renovation project
to provide accessibility.
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D.
The Town/Gown Aspect of OCR Investigations
Some types of disability discrimination complaints lend themselves to matters that are
beyond the strict control of the college or university. For example, many college and university
campuses are large enough that they are either intersected and/or bounded by city streets.
While many institutions maintain their own sworn police departments, they receive fire and
emergency medical services from the city. If the institution receives notice of a complaint
challenging the sufficiency/safety of accessible routes or emergency evacuation procedures, the
institution may need to seek input from city officials to support the rationale of prior
administrative decisions. This collaborative input may be obtained through specifically
scheduled meetings or through a standing committee with membership from both the institution
and the city. For example, the Public Safety Advisory Committee at ASU is a standing
advisory committee to the Executive Vice President for Administration and Finance. City fire,
police and public works representatives participate with university representatives from police,
risk management, parking, media, general counsel, staff, faculty and student councils.
See Arizona State University (AZ), 15 NDLR ¶187, No. 08-98-2064 (OCR Denver 1998), in
which a student complained that the university failed to provide her with an accessible route
across a street that bypasses the campus. Student also alleged that students with disabilities
were treated differently than students without disabilities since the university provided a safer
alternative (a pedestrian bridge) to crossing the street to students without disabilities. OCR
held for the university, finding that 4 crosswalks that complied with ADA accessibility
guidelines were provided. Also, university had engaged in a process with the city to develop
additional safety measures. The “pedestrian bridge” was constructed prior to 1977 for the
primary purpose of running utility lines, not for pedestrian use.
See Arizona State University, No. 08022020 (OCR Denver 2002), in which a class action
complaint alleged that the university’s emergency evacuation procedures discriminated against
students with disabilities residing in the university’s residence halls. OCR held for the
university, finding that the emergency evacuation plan adopted by the university was effective
for students with disabilities. Prior to the complaint being filed with OCR, this issue had been
publicly debated on campus. The attendance and participation of the city fire chief was critical
to explaining the safety concerns with the proposals made by the students with disabilities
while explaining the safety concerns that were met by the existing university policy. The fact
of the fire department’s participation and the content of its professional recommendations were
documented in the minutes of the Public Safety Advisory Committee and became a key exhibit
for the university.
VII.
ON-SITE INVESTIGATIONS: PREPARING FOR AND HOSTING AN OCR
INVESTIGATION
OCR may choose to inform an institution that it is coming on campus to speak with witnesses,
review documentation, inspect buildings and conduct its own inquiry in response to the complaint. An
on-site visit is more likely where (a) the complaint is directed towards accessibility/structural barrier
issues or (b) OCR is undertaking a compliance review under Title IX of the institution’s intercollegiate
athletics program. An on-site visit also may be likely in other complaint contexts when your
institution is located in close geographical proximity to an OCR regional office. A well-presented onNational Association of College and University Attorneys
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site visit can be an institution’s best defense to a complaint of discrimination. In addition to the points
mentioned for remote investigations (section VI, above), consider the following:
A.
Preparation
1.
Witnesses
As with litigation, a well-prepared witness is an absolute must. Regardless of
the amount of information that university counsel may have previously provided
to OCR up to this point, the witnesses will be the key to the final outcome. If
possible, choose the witnesses for the investigator. However, be prepared for
the investigator to request speaking with additional witnesses as the
investigation progresses (the complainant may suggest individuals to the
investigator). In preparing your witnesses, consider the following:
a.
Witnesses should be encouraged to talk freely and openly. Advising a
witness to answer every question to the extent possible aids institutional
credibility and, ultimately, advances the institutional position.
b.
Witnesses should know what policies/procedures and other documents
have been provided to OCR and freely refer to that documentary record,
as appropriate.
i.
2.
Witnesses should be prepared to educate the investigator. The
investigator may be well versed in the law but have limited
knowledge of how it applies to an institutional specific situation.
For example, an investigator expected UW-Madison to add a new
women’s sport within three months to comply with the
substantial proportionality component of Title IX. Logistically,
adding a sport in a short time frame was impossible.
Strategically Choose an Interview Site
If possible, conduct the interviews where the investigator will get the best
understanding of the institutional rationale behind a decision. This can be done
by (1) providing the investigator with a tour of where an incident took place or a
decision was made and (2) arranging for the interviewer to spend some time in a
unit by conducting the investigation in the heart of the action.
For example, in a complaint of discrimination alleged by a medical resident, the
interviews were held in a conference room in the hospital near the patient
examining rooms. During the course of the interviews, medical personnel and
patients could be seen moving through the hallways and the overhead paging
system was audible. The activity underscored the university’s position that a
resident needs to be a team player in a fast paced, close quarter environment.
National Association of College and University Attorneys
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3.
Environment
OCR is coming to your institution.
Assess if experiencing the
environment/culture advances the institutional position. Does the investigator
need to “get a feel” for an environment to better understand the rationale behind
a decision? Spend some time at the site to prepare yourself in advance for what
the investigator will see during a visit. As you prepare directions for the
investigator, consider what the investigator will see as he or she walks on your
campus. (Realize, however, that the investigator can, and will, walk additional
and/or alternate routes while on campus. Get out and have a sense of what is
happening on your campus so that any potential problem areas can be inquired
into and not leave you surprised.)
B.
Hosting the Investigation
1.
Hospitality is Important
C.
a.
An investigator expects an institution to arrange a productive visit. Take
the initiative and prepare an agenda in advance of the investigator’s
arrival. List the individuals with whom the investigator will meet,
providing name and title. Share the draft agenda with the investigator.
He or she can make revisions but will appreciate your efforts to make the
visit productive. Be prepared to schedule appointments between the
investigator and each witness.
Leave extra time for additional
interviews in anticipation of the investigator adding witnesses as the
investigation progresses. The agenda can serve as a quick check sheet
for the investigator to refer to and helps to keep all parties on a schedule.
Have documents ready or know where to find them. Consider finding a
space for the investigator to work between interviews and tours.
b.
A working lunch can be productive in terms of efficient use of the
investigator’s time and to establish a rapport in a neutral location. An
establishment on campus saves travel time, allows the investigator to get
a sense of the campus and also provides food at a reasonable cost. The
OCR investigator will not allow his or her lunch to be paid for by the
institutional representative.
On-Site Investigation of Accessibility Complaints
Prior to the arrival of OCR, it is critical for institutional representatives to conduct a
pre-inspection to determine the strengths and weaknesses of the building or other structure that
is the subject of the pending complaint. This inspection should help you identify obvious and
not so obvious relevant documents that you will want to have readily available when OCR is
on-site. In addition, the pre-inspection can assist in identifying the areas of expertise relevant to
the complaint. Those individuals need to be prepared and present. Be prepared for the
complainant to join you in the on-site visit. He or she may be accompanied by an attorney or
National Association of College and University Attorneys
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advocate. Be prepared to set the ground rules if the entourage is not limited to institutional
representatives and OCR.
1.
ADAAG: Have your own copy of the ADA Accessibility Guidelines because
everyone else (i.e., OCR and the complainant) will most certainly have their
copy (highlighted and dog-eared).
Prior to OCR arriving on-site, make certain you have determined which
accessibility standard your institution chose to for the newly constructed or
altered facilities – ADAAG or Uniform Federal Accessibility Standards
(UFAS). See University of California, Berkeley, 25 NDLR ¶16 (OCR San
Francisco 2002) in which student complained that university’s athletic facility
did not fully comply with accessible seating guidelines for patrons in
wheelchairs and did not provide appropriate accessible emergency evacuation
procedures. OCR agreed with complainant but considered the matter resolved
because the university planned to modify the seating arrangements and
evacuation procedures.
2.
Applicable Codes: Know the history of the building and have identified and
copied the sections of the applicable codes that were in force at the time of
construction or modification (e.g., building codes, plumbing codes, electrical
codes, fire codes, etc.). You may also want current code sections available as
well.
3.
Know Your Property Lines: Complainants will judge a college or university by
its physical appearance and draw conclusions as to roads, sidewalks, parking
lots, or buildings being “university property.” In many instances, the legal
description of the property shows otherwise. Always verify that the structural
barrier being complained about is your institution’s responsibility. If it is not,
then promptly advise OCR so they can close the complaint as to your institution
or redirect the complaint or a portion of it to the US Department of Justice for
enforcement action.
4.
Yard Stick, Tape Measure, Camera: Come equipped with the tools that are
appropriate to respond to the complaint against the institution. Again, OCR will
have their tools in hand. Caveat: strict dimensional compliance may not be
sufficient if the overall design of the area renders it inaccessible. For example, a
dorm room might have the proper minimum dimensions, but if the design is
poor such that closet or cabinet doors cannot be opened, then you’ve likely still
got a problem. Involvement of your institution’s Accessibility Coordinator at
the planning stage of construction projects is essential.
5.
Subject Matter Experts: Your institution’s ADA Accessibility Coordinator is a
key person to have at any accessibility inspection. Other personnel will vary,
but may include, architects, engineers, fire marshals, project managers, parking
director, athletics personnel responsible for the stadium or arena, etc.
National Association of College and University Attorneys
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6.
D.
Budget Authorizers: Prior to proposing any remedial action to OCR or agreeing
to an action proposed by OCR, it is important to understand the technical steps
that will need to be taken, the length of time to accomplish the work, the cost of
the remedial work, and the budget resources that are available to pay the cost.
Once an agreement is reached, it is difficult, if not awkward, to attempt to go
back and revisit the commitment.
On-Site Investigation of Title IX Compliance of Athletics
The decision by OCR to conduct a compliance review of your institution’s athletics
program under Title IX will almost certainly involve an on-site visit to your campus. The
President will receive a notice letter describing the scope of the compliance review that will be
undertaken (i.e., assessment of written policies/procedures, a tour of the institution’s athletic
and ancillary facilities, and interviews with coaches, student-athletes, athletic directors, and
other persons responsible for administering the university’s athletics program). The university
will be required to provide relevant documentation to OCR in advance of the on-site visit.
Typically, OCR will attach to the notice letter a list of all document categories that are to be
supplied with a specified deadline. The notice letter will also identify a tentative visit date
(could be week-long) when the inspectors will be on your campus.
The scope of the
compliance review can be expected to cover the “laundry list” of program components:
1.
the provision of reasonable opportunities for award of athletic financial
assistance (34 CFR §106.37(c));
2.
the selection of sports and levels of competition equally effectively
accommodates the interests and abilities of members of both sexes (34 CFR
§106.41(c)(1));
3.
whether the institution is providing equal opportunity for male and female
athletes under the following factors addressed at 34 CFR §106.41(c)(2)-(10):
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
the provision of equipment and supplies (c)(2);
scheduling of games and practice time (c)(3);
travel and per diem allowance (c)(4);
opportunity to receive coaching and academic tutoring (c)(5);
assignment and compensation of coaches and tutors (c)(6);
provision of locker rooms, practice and competitive facilities (c)(7);
provision of medical and training facilities and services (c)(8);
provision of housing and dining facilities and services (c)(9)
publicity (c)(10)
support services (added through 12/11/79 Policy Interpretation)
recruitment of student-athletes (same)
The compliance review is to be completed by OCR within an established target date (typically
120 days after the commencement of its site visit). A Corrective Action Agreement addressing
each program component that is not in compliance with the law will be prepared. See
Appendix for a copy of the initial notice letter and resulting Corrective Action Agreement for
National Association of College and University Attorneys
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Arizona State University. ASU is going into its tenth year of monitoring under the CAA, as
we remain out of compliance on the issue of substantial proportionality with the question of
financial assistance deferred until substantial proportionality is achieved.
Counsel should be monitoring the activities of the federal panel on Title IX. Good resources
include the websites maintained by the US Department of Education (www.ed.gov) and the
Chronicle for Higher Education (http://chronicle.com/daily). The Panel’s final report is due to
the Secretary of Education by the end of February 2003. The report’s recommendations will
not be binding on the Secretary.
VIII.
NEGOTIATING AND STANDING FIRM
A.
Think Global
In resolving the complaint, an institution may be agreeing on how to act in all future
similar circumstances. Before resolving the complaint, consider if it is realistic or desirable to
deal with similar situations in the same manner.
B.
Know When to Say “NO”
Remember that you know your institution better than the investigator. Determine if a
resolution proposed by OCR is in the institution’s best interests. In deciding on whether to
accept resolution conditions offered by OCR, consider the following:
1.
Reasonableness of OCR’s position to the institution
Although an OCR investigator may be an expert in the law, he/she is not
necessarily well versed in how it applies to a specific situation. During the
course of a Title IX investigation, OCR concluded that UW-Madison would be
in compliance if it reinstated a female varsity sport in 4 weeks and added a new
sport within 3 months. Both expectations were unreasonable given the logistics
of creating and managing an athletic team at the Division I level.
To counter these unreasonable expectations, your institution should be prepared
to layout, through written documentation (a) the budget cycle of your institution,
(b) the full cycle of steps to start up a sport, (c) a breakdown of all the costs
associated with starting up and operating the specific sport, (d) the relevant
cycle for scheduling of athletic contests, etc. These various forms of documents
serve to establish the reasonableness of the length of time being proposed by the
institution for the seamless incorporation of a new sport such that the other
existing sports programs are not unduly disrupted.
2.
Going Over the Investigator’s Head
The investigator assigned to your case is NOT a lawyer. He or she may be new
to OCR, may have never handled the particular type of complaint that is at issue
National Association of College and University Attorneys
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on your campus, or may just not “get it.” He or she may be checking with the
team leader, who may not be an attorney either. When you are not able to agree
to a term proposed by OCR and you’ve got solid legal and/or factual arguments,
call the OCR staff attorney directly to press your argument. Consider also
putting your argument in writing. The written record is crucial in terms of
making sure your argument is not misreported as the various levels of agency
review take place.
3.
Prior OCR findings
Before standing firm, it is recommended to research other OCR findings in
similar circumstances. The OCR does not appear to set nation wide standards
for all types of complaints such that regional offices may make different
findings on similar fact patterns. In Title IX substantial proportionality cases,
the Chicago office appeared to expect a ratio of less than 3% even though the
Denver office allowed a 5% differential.
4.
Research Tools
The following resources can provide valuable comparative information as to the
terms under which other similar complaints have been resolved.
i.
ii.
iii.
Freedom of Information Act requests may be made to the Washington,
D.C. office.3 34 CFR Part 5 (Note: Department of Education is to
maintain current indexes providing identifying information for the public
as to any matter – opinions, orders, statements of policy and
interpretations, administrative staff manuals and instructions to staff, see
34 CFR §5.13(b));
Search the web: www.ada.gov is the web site maintained by the US
Department of Justice. Settlement Agreements are posted to this site on
a periodic basis. If you have an accessibility dispute, in particular, this
website can provide insight into tolerances for agreed upon time frames
for implementing alterations.
See if your local law library subscribes any of LRP’s publications on
disability law. “Disability Law on CD Rom” is issued monthly and
includes statutes, regulations, administrative decisions and court
decisions on Titles I, II and III of the ADA and §504 of the
Rehabilitation Act. “Disability Compliance for Higher Education” is a
monthly newsletter that covers disability issues at colleges and
universities and provides summaries of case decisions and OCR
administrative decisions. “Disability Compliance Bulletin” is a monthly
newsletter that covers Titles I, II and III of the ADA and §504 of the
3
The number of FOIA requests made to the U.S. Department of Education has been decreasing with the placement
of agency material on its website and those of its various offices, including OCR. OCR determination letters and orders are
not routinely placed on the web.
National Association of College and University Attorneys
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iv.
v.
C.
Rehabilitation Act. Coverage does include college and university
matters but it is not limited to higher education.
Post a NACUANET inquiry.
It is not a level playing field when all is said and done. OCR maintains
an intranet so that its staff members can access all determination letters,
commitments to resolve, resolutions by parties, and settlement
agreements pertaining to all areas under its jurisdiction. Unlike
disability discrimination claims, where an institution can subscribe to an
LRP subscription service, there is no equivalent for discrimination
complaints based on sex, age, race or national origin. LRP does offer a
newsletter on Title IX, but its contents are limited to athletics arena
(“Title IX Compliance Bulletin for College Athletics”).
Understand the Process for Challenging Decisions
If the investigator and the institution are unable to reach a voluntary resolution, the
investigator will initiate an enforcement action by sending the case to administrative
proceedings to terminate financial assistance or by referring the case to DOJ for judicial
proceedings. Before taking either step, the investigator will issue a Letter of Finding in which
OCR states its conclusions and explains the consequences of failure to achieve a voluntary
resolution. OCR Case Resolution Manual, III.A. Importantly, before the Department of
Education terminates any funding, an institution will be provided a right to a hearing.
Furthermore, any termination of funding will be limited to the particular program in which
noncompliance has been found. 34 CFR §100.8(c). The administrative hearing process is laid
out in 34 CFR §§100.8 - 100.11.
IX.
Commitments to Resolve
The strategy for developing a Resolution Between the Parties and/or a Commitment to Resolve
is similar to that used in any litigation settlement agreement. The primary difference, however, is that
a Commitment to Resolve almost always will contain a monitoring component such that the
“settlement” does not officially close a complaint. A well-fashioned Commitment to Resolve is a
useful tool and a productive resolution.
A.
Positive Considerations
1.
Halts Investigative Process
If an institution agrees to resolve a complaint through a settlement process, OCR
will not conduct any additional investigation. If the decision to enter into a
Commitment is made early in the process, it may prevent OCR from recounting
detailed information in its summary.
See Letter to Augustana College, No. 07-00-2069 (OCR Kansas City, 9/27/00)
in which the College entered into a Commitment to Resolve early into the
process avoiding OCR providing specific facts in its cover letter or
Commitment.
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See Letter to the University of Southern California, No. 09-99-2112 (OCR San
Francisco 12/29/99) in which USC entered into a resolution commitment
without admitting any wrongdoing.
See Lincoln Land Community College, No. 05-01-2008 (OCR Midwestern
Division, Chicago Office 2/01/01) in which the college and student entered into
a commitment to resolve regarding the issue of auxiliary aids in a timely
fashion. By entering into the commitment at an early point in the process, OCR
closed the investigation without a complete investigation into the complaint.
2.
Avoids a negative finding
For a complaint in which OCR probably will conclude a legal violation has
occurred, it makes sense for the institution to enter into a Commitment to
Resolve on all or a portion of the complaint. By resolving the institution’s
weaker points early on, the university indirectly turns the investigator’s attention
to the aspects of the complaint more favorable to the institution.
See Letter to Notre Dame College (NH), 20 NDLR ¶29, No. 01-00-2053 (OCR
Boston 9/6/00) in which Notre Dame acknowledged a deficiency in appropriate
signage for the visually impaired and entering into a Commitment to Resolve on
that point but prevailed on the remaining aspects of a complaint filed on behalf
of students with visual impairments.
B.
Negative Considerations
1.
Monitoring Requirement
Entering into a Commitment to Resolve will not officially close a complaint.
All Commitments will include a monitoring component in which the OCR sets
time lines within which the institution is to act.4 OCR will strictly observe those
time lines and, if an institution fails to act without reasonable explanation, may
reopen the investigation, issue a letter of findings and/or forward the complaint
on for enforcement action.
2.
Negotiating Acceptable Terms
Because OCR may not have a good understanding of the practicality of a
solution for a particular institution, it may be difficult to reach mutually
acceptable terms. Typically, OCR expects a quick implementation of a plan or a
4
From the OCR Case Resolution Manual, II.G: All agreements should be crafted with a
view toward effective monitoring. Any agreement must incorporate the following...(a) specific acts or
steps the recipient will take to resolve allegations; (b) the timetable for implementing each act or step;
and (c) a specific timetable for submission of documentation.
National Association of College and University Attorneys
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change in policy. Oftentimes, for an institution to change a policy or process, it
may require committees to redraft it and legislative bodies to vote on it. Be
cautious in negotiating away typical institutional time frames. If the institution
cannot meet the expectations of OCR, it may be better not to negotiate a
resolution.
X.
CONCLUSION
The majority of discrimination complaints investigated by OCR pertain to disability issues:
academic adjustments as well as accessibility issues. The ever-growing body of case law and
administrative decisional law provide guidance on a variety of issues. The precedents enable both
OCR and universities to answer compliance questions fairly early in the life of a complaint. Prompt
resolution of disability complaints also benefits from the existence of policies/procedures (and other
written documentation) and/or precise, objective measurements that come from ADAAG or applicable
local codes. A cooperative approach to uncovering the relevant facts and evidence tends to be highly
effective on these types of investigations.
Similarly, complaints under Title IX concerning college athletics are measured against a
“laundry list” of components set forth in the regulations (34 CFR §106.41(c)). Every institution with
an intercollegiate athletics program will have an extensive amount of documentation relating to all
aspects of its sports programs (e.g., Equity in Athletics Disclosure Act (EADA), records kept per the
requirements of NCAA legislation, student records, budgetary records of the department, etc.) The
development of a collaborative and collegial working relationship with OCR on Title IX complaints is
advisable because literally every institution that receives an OCR visit will find themselves entering
into either a Corrective Action Agreement (CAA) or Commitment to Resolve (CTR), either of which
will include a monitoring component. On-going monitoring can last years and years, such that it is not
unusual to encounter “changed circumstances” (e.g., change in athletic director, institution’s president,
local economy, etc.). It will be to your institution’s benefit in seeking an amendment to the CAA or
CTR if a collegial rapport has been built and maintained with the agency.
Specific complaints based on sex, age, race or national origin discrimination are relatively rare.
Conducting an intensive factual investigation is essential to determine if a violation of law has
occurred. These matters should be handled with full awareness that litigation could subsequently be
filed. The complainant, through his or her attorney, may be seeking some free discovery. In this
circumstance, a formal and professional relationship with OCR is advisable.
In summary, consider the following 10 tips when your institution is confronted with an OCR
investigation:
1.
Call OCR the day the notice of complaint is received to introduce yourself as the university
attorney assigned to the matter and to obtain the name and phone number of the OCR
investigator. Get as much factual background to the complaint as you can over the phone so
you can promptly start your investigation.
2.
Make a FOIA request for the actual complaint and supporting documentation if the OCR
investigator will not reveal factual information beyond the written notice of complaint.
National Association of College and University Attorneys
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3.
Establish a rapport with the OCR investigator. Even if the determination is made in a particular
case to adopt a more formal, arms-length relationship with OCR, it is essential to maintain a
professional and collegial manner of communication with the agency.
4.
The OCR investigator is not an attorney. Find out from the investigator who else is on the work
team, including the staff attorney. When warranted, don’t hesitate to go over the investigator’s
head to the staff attorney.
5.
Learn the culture of the college or university unit from which the complaint arises so that you
have the proper context against which to identify relevant witnesses and make credibility
determinations, understand why practices or procedures have been adopted, and the
circumstances under which exceptions to practice or procedure have been or will be made.
6.
Conduct a broad fact-finding inquiry. While OCR will be investigating the specific complaint
of the student, the agency will also be considering the overall adequacy of your institution’s
policy(ies) and procedure(s). If the complaint concerns a structural barrier, OCR will look at
the entire building/parking lot/common area, etc.
7.
Be prepared to provide or allow inspection of all relevant documentation. OCR has broad
inspection powers. Think beyond 8 ½ x 11 paper when searching for information that is
relevant to the investigation. Good documentation will end an investigation quickly and will
generally result in a finding favorable to the institution.
8.
Disclose all relevant information, the good as well as the bad. Self-identify appropriate
remedial actions, if a problem is discovered. Initiate negotiations for either a Resolution
Between the Parties or a Commitment-to-Resolve to avoid OCR making adverse findings of
fact.
9.
Keep in control of on-site investigations through planning and preparation: prepare an agenda
in advance, identify relevant documents and subject matter experts to participate in the visit,
anticipate the possible attendance by the complainant and set ground rules, and encourage the
investigator to experience the institutional environment.
10.
Keep your promises. Virtually any form of agreement with OCR has a monitoring component.
Throughout the negotiation process it is essential to involve knowledgeable institutional
representatives who can identify: (a) internal procedures/committees that may be impacted, (b)
practical constraints that will impact the timeline for accomplishing an end result, (c) budgetary
cycles and resources, and (d) the senior level administrator who will have to agree to the terms
and sign the agreement on behalf of the institution.
National Association of College and University Attorneys
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