A Capehart Scatchard Blog

What You Need to Know About OCR Complaints & Investigations – Part 2

By on April 3, 2018 in Other with 0 Comments

By: Lauren E. Tedesco, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

Last week we discussed the Office for Civil Rights’ (“OCR”) jurisdiction to enforce anti-discrimination laws in school districts, as well as the filing of complaints with the OCR and opening letters and data requests. Today, we will discuss best practices to responding to a data request, and discuss further investigation procedures, including interviews and letters of finding.

Responding to a data request can be a time consuming process, as many times the OCR will ask for extensive information and documentation. Along with speaking to staff members involved, it is important to take the opportunity to provide a position statement by the school district when the OCR requests “any other relevant information.” This is a school district’s opportunity to chronologically lay out and explain the facts and circumstances surrounding the matter. It is the time to “tell the story,” much like an opening statement in a trial. In terms of document requests, since many times student records and/or student information is contemplated, such production must be reviewed and vetted through counsel to ensure compliance with federal and state student privacy laws. It is also important to determine whether the OCR’s requests exceed the scope of the complaint.

It is not uncommon for the OCR to take a few weeks to contact counsel after receiving the school district’s response to the data request. Many times, the OCR will then request additional information. The OCR may also contact counsel to set up interviews of staff members whom it believes have relevant information. Counsel should field the additional requests and work with the school district and OCR to coordinate the staff interview schedule.

The OCR’s interviews of staff members are almost always conducted via telephone. Prior to the interview, the staff member will be provided with a statement from the OCR which is called the “Notice of Recipient Interviewee Rights and Protections.” The interviewee is permitted to elect counsel and/or any representative to accompany him/her on the interview call. Depending upon the matter, the length of the interviews may vary. Also varied, depending upon the allegations, are the number of staff members interviewed.  If possible, it is recommended to arrange for all staff interviews to be conducted on one day. If the OCR seeks additional information following the staff interviews, which they often do, these requests should also be fielded through counsel.

Thereafter, it often takes another month for the OCR to complete their investigation and compliance review process. Importantly, OCR has a 180-day timeline to complete its investigation.  Once completed, the OCR will either issue a letter of finding to the school district or request that the school district enter into a voluntary resolution agreement. Letters of finding and resolution letters both will address all allegations and issues in the case and make conclusions based upon the investigation conducted. Proposed voluntary resolution agreements generally are remedial in nature and propose revisions to and/or implementations of new school district policies and procedures. Any proposed resolution agreement should be reviewed by counsel.

All letters of finding will also advise that the person who initiated the complaint “may have a right to file a private suit in federal court whether or not OCR finds a violation.” Even if the OCR does not make a finding against the school district, the complainant can still file a private lawsuit in federal court.

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Lauren E. Tedesco

About the Author

About the Author:

Lauren E. Tedesco, Esq. focuses her practice in the representation of public and private sector employers in the areas of labor and employment, school law (including special education) and civil rights law matters. Ms. Tedesco is admitted to practice in New Jersey and Pennsylvania.

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