The U.S. Department of Education has created a “new, proactive” civil rights compliance center within its Office for Civil Rights. The Department describes the Outreach, Prevention, Education and Non-discrimination, or OPEN, Center as an effort to “support[ ] school districts, colleges, and those closest to students” by providing educational institutions “technical assistance to help them come into compliance with federal civil rights laws prior to the filing of a complaint.” Yet OCR retains the right to open “directed investigations” and “compliance reviews” against educational entities without a complaint; is there a risk that opening your doors to the OPEN Center could put you at risk of further OCR enforcement.
The new OPEN Center will be staffed by OCR attorneys in the Washington, D.C. headquarters of the agency. The team will be focused “on education, prevention, and outreach,” providing “improved technical assistance” to school and the public. Assistant Secretary Kenneth L. Marcus, who heads OCR, explained the purpose of the Center: “Instead of waiting for violations to occur before responding, OCR will get out in front of the problem, partnering with educators and other institutions to better protect students. As the name implies, we want to be a better resource, more welcoming and supportive of students, families, educators, and communities.”
OCR has long provided “technical assistance,” or TA, to schools. Schools and members of the public can call OCR offices to ask anonymous questions about the laws that OCR enforces, although the content and quality of the service can vary wildly between offices and staff members within offices. But the creation of the OPEN Center is a continuation of a move by the Department to, under the leadership of Education Secretary Betsy DeVos, decrease enforcement at the Federal level over the nation’s schools. Under the current administration, OCR ended 1,200 civil rights investigations and data suggests it has been more lenient toward schools in its decisions in cases. The housing of the Center in DC also raises questions about whether local attorneys will still provide TA through office calls and, if not, why the agency felt removing and centralizing that authority was necessary.
The Department has issued little information regarding how the OPEN Center will operate, and so questions remain about whether the Center will be a helpful resource for schools. One potential barrier to the effectiveness of the Center is that educational institutions may be wary to allow OCR “under the hood” when not required to do so. Usually, OCR will only look into an institutions actions and practices when an investigation is opened. That can occur based on either a complaint from an individual or through OCR’s authority to open a directed investigation or compliance review of its own choice. Institutions know all too well the cost, length, and potential PR nightmare that can result from an OCR investigation, particularly because there are not effective limits on the breath and scope of an OCR investigation once it has begun. OCR has a history of excoriating educational institutions publicly when it finds a civil rights violation, even under the more-lenient leadership of DeVos.
There is little information about the OPEN Center from the Department, so I am aware of no limits on OCR’s use of information obtained during TA offered through Center. There is a chance that OCR could use information obtained through TA to open a directed investigation or compliance review against institutions. Questions also arise about whether information shared between OCR and a public school will be exempt from public records requests laws, such as the Illinois and Federal FOIA laws. Until we know more about what the Center will do and what limits will exist on its authority, we continue to recommend that educational institutions conduct confidential internal audits to mitigate the risk of public disclosure of information, preferably with the assistance of legal counsel. Legal counsel may even be able to contact OCR or the OPEN Center for guidance or other technical assistance without identifying the educational institution. Through such steps, schools, colleges, and universities can obtain the benefits that likely motivated the new OPEN Center without the risks of voluntarily putting one’s institution under OCR’s microscope.