- The U.S. Department of Education last week issued a revised Case Processing Manual for the Office for Civil Rights (OCR), reversing language from a March version that allowed it to dismiss repeated complaints from one source if it determined they were unreasonably burdensome.
- Key provisions, according to OCR, include requirements that the agency "comport with the First Amendment when investigating and resolving complaints," a change cheered by some free speech advocates, Inside Higher Ed reported. Another restores appeals under certain circumstances, including when there has been a finding of insufficient evidence.
- The revised manual retains language from March calling for increased use of a Rapid Resolution Process (RRP) and limits systemic investigations to cases in which facts clearly indicate it is necessary. The changes were announced by Kenneth Marcus, who was confirmed 50-46 by the Senate in June to head OCR.
The initial move to dismiss repeated claims by one person was the subject of a lawsuit from civil rights groups claiming it restricted opportunities for students to file, The Washington Post reported, noting the original change to the manual appeared to target one activist who at the time had 2,400 complaints pending.
The new rules also bring back the opportunity to appeal when the department finds insufficient evidence; they retain language limiting investigations to single allegations; and they encourage parties to resolve complaints themselves with the help of OCR.
Chicago law firm Franczek Radelet, which represents colleges, universities and school districts, pointed out in an article that the RRP revisions will make it more efficient, and that the Facilitated Resolution Between the Parties (FRBP) mediation process will more often be recommended and used. "Schools should now evaluate whether to pursue RRP and FRBP in every OCR case," the firm recommended in the article.
While it will be difficult to immediately know the effect of the new First Amendment language, the firm wrote, it "suggests a new focus on free speech defenses to complaints."
However, some critics of the update worry it might allow the department to protect speech that could be considered harassment, Inside Higher Ed reported.
The changes are part of a sweeping effort by the Trump administration to change Obama-era education and civil rights policy, most recently focusing on regulations related to how colleges handle complaints of sexual misconduct under Title IX.
The proposal this month from Education Secretary Betsy DeVos makes several changes to those regulations, including a more narrow definition of sexual harassment, requiring colleges to investigate only if an incident occurred on campus and allowing accused students and their accusers to cross examine each other.